Com. v. Williams, T.

J-S38045-20
2020 PA Super 235COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY WILLIAMS :
:
Appellant : No. 199 MDA 2020
Appeal from the PCRA Order Entered January 2, 2020
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0008303-2016
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 25, 2020
Appellant, Timothy Williams, appeals from the order entered by the
Court of Common Pleas of York County dismissing without relief his first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-46. Appellant contends, inter alia, the PCRA court erred
in dismissing his petition seeking reinstatement of post sentence rights nunc
pro tunc.
Appellant argues the PCRA hearing established that privately retained
sentencing counsel’s advisement to an insolvent Appellant to seek an
alternate means of timely filing a post-sentence motion, while nevertheless
remaining counsel of record, caused the trial court to nullify Appellant’s
timely pro se post-sentence motion as a product of hybrid representation.
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* Former Justice specially assigned to the Superior Court.
J-S38045-20
After careful review of the record and controlling authority, we
remand for reinstatement of Appellant’s post-sentence rights.
On January 5, 2018, Appellant was found guilty of aggravated assault
and possession of a firearm prohibited. On March 28, 2018, the trial court
sentenced him to an aggregate term of six to 13 years’ incarceration. With
privately retained counsel still of record in the post-sentence phase, neither
a counseled post-sentence motion nor a direct appeal was filed on
Appellant’s behalf.
Appellant, however, did file two timely pro se post-sentence letters
with the court raising several challenges, but the trial court treated the
filings as products of hybrid representation and forwarded them to counsel
of record pursuant to Pa.R.Crim.P. 576(A)(4).1 There is no indication of
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1 As hybrid representation is not permitted in the Commonwealth, our courts
“will not accept a pro se motion while an appellant is represented by
counsel; indeed, pro se motions have no legal effect and, therefore, are legal
nullities.” Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super.
2016) (citing Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super.
2007) (finding pro se post-sentence motion filed while the appellant was
represented by counsel was a legal nullity with no legal effect)).
Generally, when a counseled defendant files a pro se document, courts do
not act on the filing, but instead note it on the docket and forward it to
counsel pursuant to Pa.R.Crim.P. 576(A)(4). Further, such “a pro se
document has no tolling effect.” Williams, 151 A.3d at 623 (quoting
Pa.R.Crim.P. 576 cmt. which states “[t]he requirement that the clerk time
stamp and make docket entries of the filings in these cases only serves to
provide a record of the filing, and does not trigger any deadline nor require
any response”).
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record that counsel informed the court that he no longer represented
Appellant.
Appellant filed a pro se PCRA petition on June 29, 2018. Counsel was
appointed on July 6, 2018, and on December 24, 2018, he filed an amended
PCRA petition. On February 15, 2019, counsel filed a motion to schedule a
hearing, but the PCRA court denied the motion and filed its notice of intent
to dismiss pursuant to Pa.R.Crim.P. 907. Appellant filed a timely answer to
the court’s notice on June 10, 2019, and the trial court elected to conduct an
evidentiary hearing, which took place on December 23, 2019 and December
24, 2019.
At the hearing, testimony addressed what role, if any, sentencing
counsel had in Appellant’s failure to file a timely post sentence motion
accepted by the court. Counsel testified that Appellant and he discussed
Appellant’s post-sentence rights for the first time after sentencing, and he
informed Appellant what his fee for preparing a post-sentence motion would
be. N.T. 12/24/19, at 4-5. According to counsel, both Appellant and his
wife, with whom he had spoken earlier, told him they were unable to pay the
fee. N.T. at 6.
Counsel therefore advised Appellant he would not prepare a post-
sentence motion and cautioned that it was up to Appellant to contact the
Public Defender’s Office immediately and file a post sentence motion before
the filing period expired. N.T. at 6-7. See Pa.R.Crim.P. 720(a)(1)
(indicating a written post-sentence motion must be filed within ten days
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after the imposition of sentence). Counsel indicated Appellant never asked
him during their conversation to file either a post-sentence motion or direct
appeal on his behalf. N.T. at 7.
On December 31, 2019, the trial court dismissed Appellant's PCRA
petition, relying specifically on sentencing counsel’s testimony that Appellant
never requested that counsel file a post-sentence motion or direct appeal on
his behalf. Appellant filed a timely notice of appeal on January 27, 2020. A
concise statement order was issued on January 28, 2020, and counsel filed a
timely Pa.R.A.P. 1925 Statement on February 18, 2020. The trial court
issued its 1925 opinion on February 24, 2020.
In Appellant’s counseled brief, he raises several issues asserting the
ineffective assistance of prior counsel and other trial errors. As a prefatory
matter, however, we address his contention that the PCRA hearing
established the dissolution of the attorney-client relationship at the outset of
the post-sentence phase that should have prompted the PCRA court to take
remedial action.
We recognize that Appellant filed timely pro se post-sentence motions
at a time when counsel was still designated as counsel of record in his case.
As noted, pro se filings submitted by counseled defendants are generally
treated as legal nullities. Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010).
However, this Court has recognized that a counseled defendant may
act on his own to protect important rights where counsel remains technically
attached to the case but is no longer serving the client's interest. See
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Williams, supra. Thus, where counsel has effectively discontinued working
on a defendant’s behalf, this Court has concluded that a pro se filing does
not offend considerations of hybrid representation. See Commonwealth v.
Leatherby, 116 A.3d 73 (Pa. Super. 2015).
At the PCRA hearing, privately retained sentencing counsel confirmed
that Appellant was effectively unrepresented when he filed the pro se post-
sentence motions in question. Specifically, counsel’s undisputed testimony
stated: (1) counsel informed Appellant he required payment prior to
preparing a post-sentence motion; (2) both Appellant and his wife indicated
they could no longer afford counsel fees; (3) counsel advised that it was
therefore up to Appellant to secure a means by which to file a timely post
sentence motion; and (4) Appellant made several pro se filings in the nature
of a post-sentence motion within the allotted 10-day filing period to preserve
his rights.
Under these circumstances, we find principles prohibiting hybrid
representation were not implicated. While the trial court reasonably followed
the dictates of Rule 576(A)(4)—as it was not informed that Appellant was
filing post-sentence motions in an essentially unrepresented capacity, it
became clear during the PCRA hearing that Appellant’s motions were not
deserving of Rule 576 nullification.
For this reason, we vacate the Order denying PCRA relief, reinstate
Appellant’s post-sentence rights and direct appeal rights nunc pro tunc, and
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remand to the trial court, which shall accept for review Appellant’s timely pro
se post-sentence motions previously filed with the court.
Order vacated. Post-sentence rights and direct appeal rights
reinstated nunc pro tunc consistent with this decision. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/25/2020
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