Com. v. Kerns, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT NEWTON KERNS :
:
Appellant : No. 1602 MDA 2018
Appeal from the Order Entered August 27, 2018
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002858-2016
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 07, 2019
Scott Newton Kerns appeals from the order entered in the Berks County
Court of Common Pleas on August 27, 2018, which denied his post-sentence
motion as untimely.1 Additionally, Kerns’s court appointed counsel, John A.
Fielding, III, Esquire, seeks to withdraw pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). Kerns has also filed an application with this Court requesting that the
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* Retired Senior Judge assigned to the Superior Court.
1 In the notice of appeal, counsel additionally attempts to appeal from the
judgment of sentence entered on September 30, 2016. Kerns’ judgment of
sentence became final on October 30, 2016, after neither a timely post-
sentence motion nor a timely direct appeal was filed. Therefore, we only
address the appeal from the August 27, 2018 order, as a direct appeal is not
cognizable at this time.
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appeal be remanded “to start again” with Kerns representing himself. We
vacate the order denying Kerns’ motion as untimely and remand for further
proceedings consistent with this memorandum. In addition, we grant counsel
permission to withdraw, and deny Kerns’s application for remand as moot.
In 2002, Kerns pled guilty to involuntary deviant sexual intercourse and
was sentenced to seven and one-half to twenty years’ incarceration.2 In 2007,
he filed a civil lawsuit against the victim, accusing her of perjury and filing a
false police report against Kerns. The case was dismissed. In 2015, Kerns
again filed a civil lawsuit against the victim, raising the same issues. He was
subsequently charged with unsworn falsification to authorities and barratry.
On September 30, 2016, in the instant action, Kerns was convicted of
barratry. He was sentenced the same day to six to twelve months’
incarceration, to be served consecutive to his 2002 sentence. On October 11,
2016, Kerns filed a pro se motion for acquittal or modification of sentence.
The trial court denied the pro se motion due to Kerns being represented by
counsel3 and further finding the motion untimely. Kerns filed a pro se notice
of appeal to this Court, which was subsequently withdrawn by counsel.
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2 CP-06-CR-371-2001
3 There is no right to hybrid representation. Commonwealth v. Jette, 23
A.3d 1032, 1036 (Pa. 2011). “When a counseled defendant files a pro se
document, it is noted on the docket and forwarded to counsel pursuant to
Pa.R.Crim.P. 576(A)(4), but no further action is to be taken.”
Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016).
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On March 16, 2017, Kerns filed a Motion to Open, Vacate
Order/Sentence Pursuant to 42 Pa.C.S.A. § 5505 and to Proceed Pro Se. On
August 24, 2017, a hearing was held on the Motion, during which Kerns was
represented by newly appointed Attorney Fielding.4
On February 2, 2018, Kerns filed a pro se notice of appeal arguing the
trial court had failed to issue a final order either granting or dismissing the
Motion. This Court issued a rule to show cause why the appeal should not be
dismissed as interlocutory, since the trial court had not yet ruled on the
Motion. After receiving no response, this Court quashed the appeal and
remanded to the trial court to consider whether the Motion was a post-
sentence motion or a PCRA petition, to address the merits if any, and for entry
of a final order from which an appeal could be taken. The trial court entered
an order characterizing the Motion as a post-sentence motion and denying it
as untimely. Counsel filed a notice of appeal.5
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4 Both parties were given the opportunity to file a memorandum of law prior
to the court issuing a decision. The Commonwealth filed a brief in which they
argued the Motion should be denied as an untimely post-sentence motion and
that it could not alternatively be considered a timely PCRA petition because it
did not raise a cognizable claim. Attorney Fielding did not file a response.
5 Kerns also filed a pro se notice of appeal. We dismissed the appeal after
receiving no response to show cause why his appeal should not be dismissed
as duplicative of the instant appeal.
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In response to multiple pro se filings received from Kerns6 and a petition
to withdraw filed by Attorney Fielding7, the trial court subsequently issued an
order requiring a Grazier8 hearing within thirty days. A timely hearing was
held on December 21, 2018,9 during which Attorney Fielding stated his intent
to file an Anders brief. Kerns agreed to continue with representation by
Attorney Fielding with the understanding that he would have the right to
respond after the Anders brief was filed.
On February 7, 2019, having not yet received an Anders brief from
counsel, the trial court filed a statement in lieu of opinion urging this Court to
dismiss the appeal.
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6 Kerns sent two letters to the court and one letter to counsel, attempting to
“fire” Attorney Fielding. These letters were noted on the docket and forwarded
to counsel pursuant to Pa.R.A.P. 3304. See Jette Letter (1), 12/4/2018.
7On December 3, 2018, prior to receiving the January 4, 2018 Jette letter,
Attorney Fielding filed a petition to withdraw as counsel.
8 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
9 On the same date, Kerns filed a pro se notice to the court asking for Attorney
Fielding to be removed as counsel, to proceed pro se, and to be given all
paperwork on his case. The trial court denied this application for relief as moot
due to the outcome of the Grazier hearing.
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On May 3, 2019, Attorney Fielding filed an Anders brief.10 He was
directed to file a proper petition to withdraw, which he filed the same day.
Kerns has not filed a response.
We turn first to counsel’s petition to withdraw. To withdraw pursuant to
Anders, counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). With respect to the third requirement of Anders,
that counsel inform the appellant of his or her rights in light of counsel’s
withdrawal, this Court has held that counsel must “attach to their petition to
withdraw a copy of the letter sent to their client advising him or her of their
rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
An Anders brief must comply with the following requirements:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
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10 In the meantime, Kerns had attempted to file two more documents,
including a pro se appellant’s brief. These documents, dated March 25, 2019,
were again forwarded to Attorney Fielding. See Jette Letter (2), 4/2/2019.
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case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361.
“[I]f counsel’s petition and brief satisfy Anders, we will then undertake
our own review of the appeal to determine if it is wholly frivolous.”
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (brackets
added, citation omitted).
Attorney Fielding filed a petition to withdraw, certifying he has reviewed
the case and determined that Kerns’ appeal is frivolous. Further, Attorney
Fielding attached to his petition a copy of his letter to Kerns, advising that he
may retain new counsel, raise additional issues pro se, or discontinue his
appeal. Attorney Fielding also filed a brief, which includes a summary of the
history and facts of the case, potential issues that could be raised by Kerns,
and his assessment of why those issues are meritless, with citations to
relevant legal authority.
Attorney Fielding has thus complied with the preliminary requirements
of Anders and Santiago. Kerns has not filed a response.
Before we examine the substance of Kerns’ appeal, we must determine
what order Kerns is appealing. To determine the appropriate order on appeal,
we must ascertain which of Kerns’ post-trial filings was valid, an issue that
intrinsically revolves around representation. The Pennsylvania Constitution
guarantees the right to representation by an attorney in a criminal case and
the right of appeal. The United States Constitution guarantees a criminal
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defendant the right to self-representation, which may be exercised following
a knowing and voluntary waiver of the right to counsel. Faretta v. California,
422 U.S. 806, 820–21 (1975). However, there is no right to contemporaneous
representation pro se and by counsel (“hybrid representation”) at trial or on
appeal. Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993); see also
Commonwealth v. Pursell, 724 A.2d 293, 251 (Pa. 1999) (applying Ellis
rationale prohibiting hybrid representation to PCRA proceedings).
As an appellant does not have a right to hybrid representation, any pro
se post-sentence motions filed while represented by counsel are “a nullity,
having no legal effect.” Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.
Super. 2007). Moreover, the Rules of Appellate Procedure generally prohibit a
represented litigant from submitting his or her own motion, instead directing
the court not to docket any such filing, but to forward it to counsel of record.
Pa.R.A.P. 3304. This Court, however, “is required to docket a pro se notice of
appeal despite Appellant being represented by counsel.” Williams, at 624
(citation omitted).
Here, the court sentenced Kerns on September 30, 2016. Neither his
first post-trial filing, the October 11, 2016 pro se motion for judgment of
acquittal or modification of sentence, nor his second, the March 16, 2017 pro
se “Motion to Open, Vacate Order/Sentence Pursuant to 42 Pa.C.S.A. 5505
and to Proceed Pro Se”, should have been docketed or heard – instead, both
should have been forwarded to Kerns’ counsel of record for counsel to make
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a determination of whether to proceed further. See Pa.R.A.P. 3304; see also
Jette, at 1044 (“proper response to any pro se pleading is to refer the
pleading to counsel, and to take no further action on the pro se pleading
unless counsel forwards a motion”) (emphasis added).
The court properly denied the October 11, 2016 post-sentence motion,
stating Kerns had no right to hybrid representation, and in any event finding
the motion untimely. Similarly, the March 16, 2017 post-trial filing should not
have been docketed or heard – instead, it should have been forwarded to
Kerns’ counsel of record. See Pa.R.A.P. 3304; see also Jette, at 1044.
Therefore, it was error for the lower court to docket this motion and hold
the August 24, 2017 hearing on the motion. This error was further
compounded by the lower court subsequently labeling the motion as a post-
sentence motion and dismissing it as untimely filed, since “any petition filed
after the judgment of sentence becomes final will be treated as a PCRA
petition.” Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super.
2002). Kerns’ judgment of sentence became final on October 30, 2016, after
neither a timely post-sentence motion nor a timely direct appeal was filed.
Consequently, it is clear Kerns’ March 16, 2017 motion, filed more than five
months later, should have been treated as a PCRA petition rather than a post-
sentence motion.
Pennsylvania law requires unequivocally that prisoners seeking post-
conviction relief by whatever name be afforded the assistance of counsel. See
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Pa.R.Crim.P. 904; see also Commonwealth v. Albrecht, 720 A.2d 693, 699
(Pa. 1999) (“The denial of PCRA relief cannot stand unless the petitioner was
afforded the assistance of counsel.”); Commonwealth v. Kutnyak, 781 A.2d
1259, 1262 (Pa. Super. 2001) (holding that appellant is entitled to
representation of counsel on first PCRA petition “despite any apparent
untimeliness of the petition or the apparent non-cognizability of the claims
presented.”)
In this instance, both the court and Attorney Fielding improperly treated
Kerns’ filing as an untimely post-sentence motion. We therefore vacate the
order characterizing the motion as a post-sentence motion and denying it as
untimely, and remand to the trial court for a hearing regarding appointment
of counsel to assist Kerns in pursuing any claims under the PCRA.
Since Kerns has made several accusations of ineffective assistance
against current counsel, we find it necessary to grant counsel’s petition to
withdraw, as we cannot expect counsel to argue his own ineffectiveness. If
Kerns moves to proceed pro se despite the availability of counsel, the PCRA
court must hold a Grazier hearing. Given this disposition, we conclude Kerns’s
application for remand and self-representation is moot.
Order vacated. Case remanded to the trial court for further proceedings
consistent with this memorandum. Petition to withdraw granted. Application
for remand denied as moot. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/07/2019
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