Com. v. Haydu, K.

J-A25030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KATHLEEN HAYDU :
:
Appellant : No. 3733 EDA 2017
Appeal from the Judgment of Sentence October 20, 2017
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-SA-0000195-2017
BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY PANELLA, J.: FILED MAY 06, 2019
Kathleen Haydu appeals from the judgment of sentence entered in the
Bucks County Court of Common Pleas following her guilty plea to the summary
offense of driving while operating privilege is suspended or revoked for driving
under the influence (“DUI”).1 The trial court concluded Haydu waived all issues
on appeal based, in part, on her failure to preserve the issues in her pro se
Rule 1925(b) statement. Because the trial court considered Haydu’s pro se
Rule 1925(b) statement while she was still represented by counsel, we remand
this matter for the consideration of Haydu’s counseled Rule 1925(b) statement
and a new Rule 1925(a) opinion.
On March 4, 2016, Haydu was cited for driving while operating privilege
is suspended or revoked for DUI. After filing a summary appeal, Haydu
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1 75 Pa.C.S.A. § 1543(b)(1)(i).
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obtained the representation of the public defender’s office. Ultimately, she
entered a guilty plea on October 20, 2017 in exchange for 60 days’
imprisonment to be served concurrently to an identical conviction at CP-09-
SA-0000058-2017. Despite still being represented by plea counsel, Haydu
timely filed a pro se notice of appeal.2 On December 1, 2017, the trial court
ordered Haydu to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). This order was not served on plea counsel or
the public defender’s office. Haydu sent the trial court a pro se Rule 1925(b)
statement.3
On January 2, 2018, the trial court filed an opinion pursuant to Pa.R.A.P.
1925(a). The trial court determined that Haydu failed to serve her notice of
appeal on the trial court, order transcripts, or preserve any issues in her pro
se Rule 1925(b) statement. It therefore concluded that all of her appellate
issues were waived. See Trial Court Opinion, 1/2/18, at 4-7. This Court
dismissed Haydu’s appeal following her failure to file an appellate brief.
However, in April of 2018, this Court sua sponte reinstated Haydu’s
appeal after discovering she had been represented by counsel at her guilty
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2The clerk of courts forwarded Haydu’s pro se notice of appeal to the public
defender’s office on November 30, 2017.
3 Haydu’s pro se Rule 1925(b) statement was actually a letter sent by Haydu
to the trial court. However, the trial court considered Haydu’s letter to be her
attempt to comply with Pa.R.A.P. 1925(b). See Trial Court Opinion, 1/2/18,
at 1. Therefore, we shall refer to this letter as such.
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plea. Counsel filed a motion for transcripts and an amended Rule 1925(b)
statement. Further, counsel filed an appellate brief with this Court.
Prior to reaching the merits of the instant appeal, we are compelled to
note the array of procedural defects inherent within. Rule 120(A)(4) of our
Rules of Criminal Procedure provides that “[a]n attorney who has been
retained or appointed by the court shall continue such representation through
direct appeal or until granted leave to withdraw by the court…” Pa.R.Crim.P.
120(A)(4). Well-established Pennsylvania law provides that a defendant is not
entitled to file documents pro se while represented by counsel. See
Commonwealth v. Ellis, 626 A.2d 1137, 1141 (Pa. 1993) (defendant does
not have the constitutional right to self-representation as well as counseled
representation at the trial or appellate level). Therefore, we generally treat
pro se filings while an appellant remains represented as legal nullities. See
Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (reiterating that hybrid
representation is not permitted).
Instantly, the record reflects that the public defender’s office
represented Haydu at the time of her guilty plea. There is no indication that
the public defender’s office was permitted to withdraw representation
following the plea, or that Haydu requested to proceed pro se. As Pennsylvania
does not permit hybrid representation, it was improper for Haydu to file a pro
se notice of appeal and a pro se Rule 1925(b) statement. Further, the trial
court erred by serving the order directing compliance with Rule 1925(b) on
Haydu while she was still represented by counsel.
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Despite the errors noted above, we decline to quash the appeal. Because
an appellant has the right of appeal under Article 5, section 9 of the
Pennsylvania Constitution, we are required to address pro se notices of appeal
filed while an appellant is represented by counsel. See Commonwealth v.
Williams, 151 A.3d 621, 624 (Pa. Super. 2016). However, because Haydu
was still represented by counsel at the time she filed her pro se Rule 1925(b)
statement, this pro se filing was a legal nullity.4 See Ali, 10 A.3d at 293.
Accordingly, we are constrained to remand this case and its record to the trial
court for consideration of Haydu’s counseled Rule 1925(b) statement.5 We
direct the trial court to file a Rule 1925(a) opinion addressing the issues raised
in Haydu’s counseled Rule 1925(b) statement within 30 days of the date of
this memorandum. See Commonwealth v. DeJesus, 868 A.2d 379, 381
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4 Even if this letter were not a nullity, Haydu’s pro se Rule 1925(b) statement
consists of rambling asides and is largely unintelligible; therefore, it does not
comply with Rule 1925(b)’s mandate. See Commonwealth v. Hansley, 24
A.3d 410, 415 (Pa. Super. 2011) (stating “the Rule 1925(b) statement must
be ‘specific enough for the trial court to identify and address the issue [an
appellant] wishe[s] to raise on appeal[]’ ”)(citation omitted). Further, this
statement was not file stamped with the court of clerks, but was sent directly
to the trial judge. Our Supreme Court has held that this is not sufficient to
comply with Rule 1925(b). See Commonwealth v. Butler, 812 A.2d 631,
634 (Pa. 2002) (stating, “Rule 1925 is not satisfied when an appellant merely
mails his Rule 1925(b) statement to the presiding judge[]”).
5 When counsel has filed an untimely Rule 1925(b) statement and the trial
court has addressed the issues within, we are not required to remand and may
address the merits of the issues presented. See Commonwealth v. Burton,
973 A.2d 428, 433 (Pa. Super. 2009). However, the trial court did not address
Haydu’s counseled issue on appeal in its Rule 1925(a) statement, as Haydu
did not file her counseled Rule 1925(b) statement until months later.
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(Pa. 2005) (holding trial court’s failure to discuss appellant’s claims required
remand for issuance of an adequate opinion in accordance with Pa.R.A.P.
1925(a)). Upon return of the record to this Court, we direct our Prothonotary
to establish a new briefing schedule.
Case remanded for further proceedings consistent with this decision.
Rule 1925 opinion to be filed within 30 days of the date of this memorandum.
Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/19
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