Com. v. Mikelonis, R.

J-S55027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAYMOND A. MIKELONIS, SR. :
:
Appellant : No. 441 WDA 2019
Appeal from the PCRA Order Entered December 27, 2018
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000755-2011
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 26, 2019
Raymond A. Mikelonis, Sr. appeals from the denial of his request for
relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. We remand for the PCRA court to determine the status of PCRA counsel.
Mikelonis filed a pro se timely PCRA petition alleging ineffective
assistance of trial counsel. See PCRA Petition, filed 4/27/15, at 3. The PCRA
court appointed Patrick Lavelle, Esquire, as PCRA counsel, and he filed a
Turner/Finley letter and a petition to withdraw as counsel.1 The PCRA court
on February 3, 2016 issued a notice of intent to dismiss the petition without a
hearing. See Notice of Intent to Dismiss, filed 2/3/16, at ¶2; Pa.R.Crim.P.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988).
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907.2 While the PCRA petition was still pending, Mikelonis filed a pro se petition
labeled, “Petitioner Raymond Mikelonis Sr.’s Petition for State Habeas Corpus”
(“habeas petition”). See Habeas Petition, filed 5/7/18; PCRA Ct. Op. (“PCO”),
filed 4/16/19, at 6. The PCRA court denied both the PCRA petition and the
habeas petition in December 2018, without ruling on PCRA counsel’s petition
to withdraw. Mikelonis then appealed to this Court, pro se.
The docket reflects this Court received Mikelonis’s notice of appeal on
March 25, 2019, beyond the 30 day deadline to appeal to this Court. We issued
a rule to show cause why the appeal should not be dismissed as untimely.
Mikelonis responded that “pursuant [to] the prison mailbox rule, [he] filed
with the Clearfield County Clerk of Court’s[,]” his notice of appeal on January
6, 2019. Response to Rule to Show Cause, filed 5/3/19. He stated “that the
delay is a breakdown with the Clerk of Court of Clearfield County,” because
on March 27, 2019, he received a print out of his criminal docket from the
clerk of courts with a handwritten note that read “nothing will be done with
your appeal until the judge either grants or denies your [in forma pauperis
(“IFP”)].” Id. at 2 (unpaginated). Mikelonis also included a cash slip for his
filed notice of appeal, dated January 6, 2019. We discharged the rule to show
cause, leaving it to the panel to readdress the issue. Order, filed 5/13/19.
____________________________________________
2 The PCRA court maintains that it denied the PCRA petition on February 3,
2016. See PCRA Court Op., filed 4/16/19 at 4. However, neither the certified
record nor the docket contains an order denying the PCRA petition on that
date.
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Upon review of the certified record, we conclude that this appeal is
timely pursuant to the prisoner mailbox rule. See Commonwealth v. Jones,
700 A.2d 423, 426 (Pa. 1997). We also note that the contention of the clerk
of courts that it was not required to docket Mikelonis’ notice of appeal until
the trial court ruled on his IFP, was in error. See Pa.R.A.P. 905(a)(3) (“Upon
receipt of the notice of appeal the clerk shall immediately stamp it with the
date of receipt, and that date shall constitute the date when the appeal was
taken, which date shall be shown on the docket”); Commonwealth v.
Williams, 106 A.3d 583, 588 (Pa. 2016) (“The use of the word ‘shall’ in Rule
905(a)(3) leaves the lower court clerk no discretion in its application of the
rule”). Thus, we conclude that Mikelonis timely filed his notice of appeal on
January 6, 2019. See Smith v. Pennsylvania Board of Probation and
Parole, 683 A.2d 278, 282 (Pa. 1996) (concluding cash slip is acceptable
evidence of whether appellant mailed “his petition for review within the thirty
day filing period”).
However, we do not address the merits of this case at this time because
Mikelonis filed a pro se brief to this Court, even though PCRA counsel has not
withdrawn his appearance. See Docket, Commonwealth v. Mikelonis, CP-
17-CR-0000755-2011, at 15. Thus, it appears that his brief to this Court may
be a case of hybrid representation, which is not permitted. See
Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.Super. 2016). Hybrid
representation exists where there is “self-representation together with
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counseled representation.” Commonwealth v. Ellis, 626 A.2d 1137, 1138
(Pa. 1993).
As there is no indication in the certified record that the PCRA court
formally allowed Attorney Lavelle to withdraw as counsel, we remand this case
for the PCRA court to advise this Court of the status of Attorney Lavelle in this
case within 30 days of the date of this Memorandum. See Commonwealth
v. Ford, 44 A.3d 1190, 1198 n.4 (Pa.Super. 2012) (“If the PCRA court allows
counsel to withdraw when the court issues its notice of intent to dismiss, then
there are no issues regarding hybrid representation.”). If the PCRA court
determines that Attorney Lavelle continues to represent Mikelonis in this
matter, counsel shall file a brief in this Court within 30 days of the PCRA court’s
rendering that determination.
Case remanded with instructions. Jurisdiction retained.
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