Com. v. Cotton, R.

J-S05038-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RAKEISH RAHSAAN COTTON, :
:
Appellant : No. 1361 WDA 2017
Appeal from the PCRA Order July 31, 2017
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002484-2001,
CP-02-CR-0002965-2001, CP-02-CR-0012802-2001
BEFORE: OLSON, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 11, 2018
Rakeish Rahsaan Cotton (Appellant) appeals pro se from the July 31,
2017 order dismissing his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate the order and remand for
further proceedings consistent with this memorandum.
After a jury found Appellant guilty of second-degree murder, robbery,
robbery of a motor vehicle, and conspiracy, Appellant was sentenced on June
12, 2002, to life imprisonment and a consecutive 10-to-20 year sentence. The
convictions were affirmed on direct appeal to this Court. Commonwealth v.
Cotton, 876 A.2d 460 (Pa. Super. 2005) (unpublished memorandum). Our
Supreme Court denied allowance of appeal on August 25, 2005.
Commonwealth v. Cotton, 881 A.2d 818 (Pa. 2005).
*Retired Senior Judge assigned to the Superior Court.
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Appellant timely filed a PCRA petition on May 10, 2006. The PCRA court
dismissed the petition without a hearing on October 6, 2006. He filed an
appeal to this Court, and we affirmed the PCRA court on April 16, 2008.
Commonwealth v. Cotton, 953 A.2d 825 (Pa. Super. 2008) (unpublished
memorandum). Again, allowance of appeal was denied. Commonwealth v.
Cotton, 956 A.2d 432 (Pa. 2008).
Appellant filed his second PCRA petition on August 7, 2012. The PCRA
court dismissed the petition without a hearing on October 1, 2012. He filed
an appeal to this Court, and we affirmed the PCRA court on November 15,
2013. Commonwealth v. Cotton, 91 A.3d 1287 (Pa. Super. 2013)
(unpublished memorandum). Again, allowance of appeal was denied.
Commonwealth v. Cotton, 89 A.3d 659 (Pa. 2014) (per curiam order).
On December 3, 2016, Appellant filed pro se his third PCRA petition. On
January 24, 2017, privately-retained counsel, Craig M. Cooley, Esquire, filed
an entry of appearance on Appellant’s behalf. On March 10, 2017, the PCRA
court issued an order, which, inter alia, returned Appellant’s petition to
defendant’s counsel “for amendment/adoption or other pleading by April 10,
2017.” The Court served the order on Appellant and Attorney Cooley. The
record does not indicate that Attorney Cooley took any further action.
On March 29, 2017, Appellant pro se filed a motion for waiver of counsel.
In the motion, Appellant sought to “waive the right to be represented by
counsel” and proceed pro se. Motion for Waiver of Counsel, 3/29/2017, at 2.
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The following day, Appellant filed pro se an amended PCRA petition. The PCRA
court subsequently issued a notice of intent to dismiss Appellant’s petition
without a hearing pursuant to Pa.R.A.P. 907.1 The Rule 907 notice neither
addressed Appellant’s request to proceed pro se nor was served on Attorney
Cooley. Notice of Intent to Dismiss, 7/11/2017, at 1.
On May 23 and 25, 2017, Appellant filed pro se two documents
requesting an evidentiary hearing and objecting to the court’s notice of intent
to dismiss. On July 11, 2017, Appellant filed pro se a motion to ascertain the
status of his PCRA petition.2 On July 31, 2017, the PCRA court dismissed
Appellant’s petition. Appellant timely filed pro se a notice of appeal on August
11, 2017. On August 15, 2017, the clerk of courts forwarded Appellant’s
notice of appeal to Attorney Cooley; the record does not indicate that Attorney
Cooley took any further action. On October 2, 2017, the PCRA court ordered
1
The Rule 907 notice is dated May 17, 2017, but it was not entered on the
docket until July 11, 2017. Appellant presumably received the notice in a
timely fashion because Appellant objected to the dismissal prior to the
deadline imposed by the court.
2 On July 28, 2017, Appellant filed pro se a notice of appeal from Rule 907
notice of intent to dismiss. The clerk of courts notified Appellant that his
appeal was premature due to a final order not being issued and did not forward
the notice of appeal to this Court. This was improper. See Pa.R.A.P. 905(b)
(requiring the clerk of courts to “immediately transmit to the prothonotary of
the appellate court named in the notice of appeal a copy of the notice of
appeal….”); Commonwealth v. Williams, 106 A.3d 583, 588-89 (Pa. 2014)
(holding the clerk of courts is “obligated to accept and process notices of
appeal upon receipt in accordance with the Rules of Appellate Procedure,
notwithstanding any perceived defects therein”).
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Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925. Appellant filed pro se a concise statement, and
the PCRA Court subsequently issued an opinion pursuant to Pa.R.A.P. 1925(a).
In this Court, Appellant filed a brief pro se claiming that his PCRA petition
satisfied a timeliness exception, and that the PCRA court erred in dismissing
his petition without a hearing. Appellant’s Brief at ix. Before we consider the
merits of the appeal, we must determine whether the issues are properly
before us.
Because this was Appellant’s third PCRA petition and no evidentiary
hearing was held, Appellant did not have a rule-based right to counsel. See
Pa.R.Crim.P. 904(C), (D). Nevertheless, Appellant was free to retain his own
counsel. As noted above, Attorney Cooley entered his appearance on
Appellant’s behalf pursuant to Pa.R.Crim.P. 904(A) (“Counsel for defendant
shall file a written entry of appearance with the clerk of courts promptly after
being retained, and serve a copy on the attorney for the Commonwealth.”).
Because this Commonwealth prohibits hybrid representation, once Attorney
Cooley entered his appearance, Appellant’s ability to proceed pro se ceased.
Commonwealth v. Willis, 29 A.3d 393, 400 (Pa. Super. 2011). Further,
once he entered his appearance, Attorney Cooley was obligated to represent
Appellant or seek leave of court to withdraw. See Pa.R.Crim.P. 120(A)(4)
(“An attorney who has been retained … shall continue such representation
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through direct appeal or until granted leave to withdraw by the court pursuant
to paragraph (B).”). He did neither.
For its part, despite Attorney Cooley’s representation of Appellant, the
PCRA court accepted and ruled upon Appellant’s pro se amended PCRA
petition. This was error. See Willis, 29 A.3d at 400 (holding the trial court
erred by accepting an amended PCRA petition filed pro se by a petitioner who
was represented by counsel). Generally, pro se filings by represented parties
have no legal effect and are legal nullities. Commonwealth v. Williams,
151 A.3d 621, 623 (Pa. Super. 2016). “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.” Id.Furthermore, the PCRA court did not serve any of its orders upon
Attorney Cooley after its initial March 10, 2017 order requiring Attorney Cooley
to file an amended petition or other filing by April 10, 2017. See Pa.R.Crim.P.
114(B)(1) (“A copy of any order or court notice promptly shall be served on
each party’s attorney, or the party if unrepresented.”). Finally, the clerk of
courts failed to forward Appellant’s pro se filings to Attorney Cooley, except
for the August 11, 2017 notice of appeal. See Pa.R.Crim.P. 576(A)(4)
(providing that the clerk of courts shall accept for filing documents submitted
pro se by a represented defendant and forward copies to the defendant’s
attorney).
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Due to the procedural quagmire below, we vacate the PCRA court’s order
dismissing Appellant’s petition and remand to the PCRA court to rule on
Appellant’s request to proceed pro se.3
Order vacated. Remand for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2018
3 We decline to quash or dismiss Appellant’s appeal. Although Appellant was
still represented by counsel at the time he filed the notice of appeal, we are
permitted to consider his pro se notice of appeal. See Commonwealth v.
Cooper, 27 A.3d 994, 1007 (Pa. 2011) (holding that a pro se notice of appeal
from a final judgment filed by a represented appellant is not automatically
void). Further, unlike in Commonwealth v. Glacken, 32 A.3d 750 (Pa.
Super. 2011), where this Court quashed an appeal filed pro se by a
represented party due to the lack of a counseled brief, Appellant requested
permission to proceed pro se. See Glacken, 32 A.3d at 753 (holding that
Pa.R.A.P. 3304 and Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993)
required the Court to quash the appeal because an appellant must either allow
his attorney to represent him or request permission to proceed pro se).
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