NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No WDA 2012

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. FREDERICK MARKOVITZ, Appellant No WDA 2012 Appeal from the Order November 6, 2012 In the Court of Common Pleas of Washington County Criminal Division at No.: CP-63-CR BEFORE: SHOGAN, J., LAZARUS, J., and PLATT, J. * MEMORANDUM BY PLATT, J. FILED: July 3, 2013 Appellant, Frederick Markovitz, appeals pro se from the order entered by the clerk of courts on November 6, 2012, denying his pro se motion for modification of sentence by operation of law. Appellant filed the pro se motion while he was represented by counsel during pending Post Conviction Relief Act (PCRA) 1 proceedings in this case. We quash. On May 3, 2010, Appellant pleaded guilty to a violation of the Uniform Firearms Act (persons not to possess) and a charge of recklessly endangering another person (REAP). 2 The charges stemmed from * Retired Senior Judge assigned to the Superior Court Pa.C.S.A Pa.C.S.A. 6105(a)(1) and 18 Pa.C.S.A. 2705, respectively. Appellant committed these offenses while he was on parole. (See (Footnote Continued Next Page)

2 Appellant s involvement in an August 2009 shooting outside of a bar in Washington County. The trial court sentenced him to a term of no less than two nor more than four years incarceration, followed by a consecutive term of two years probation. In its order, the trial court directed the sentence to run concurrently to any sentence [Appellant] is currently serving to include incarceration time for any parole violation. (Trial Court Sentencing Order, 5/04/10, at unnumbered page 2). The trial court s directive to run the sentence concurrent to any other sentence resulted from the following exchange at the sentencing hearing: [TRIAL COUNSEL:] [P]art of [Appellant s] concern is that he has another state sentence and that s why we would like for this case to run concurrent... We re asking that you recommend that this be concurrent. [THE COURT:]... I ll direct that it be run concurrent with any state parole violation. However, please understand I don t have any control over that,... that s a decision that s always made by the Department of Corrections [DOC] and the Board of Probation and Parole. [APPELLANT:] I understand, Your Honor. [TRIAL COUNSEL:] I just was looking for the recommendation to run concurrent[.] [THE COURT:] Absolutely not a problem. We ll include all of that language in the sentencing order. (Footnote Continued) Markovitz v. Wetzel, No. 124 M.D. 2012, 5/18/12, at 1 (Pa. Cmwlth. May 18, 2012), order affirmed, ---A.3d---, 2013 WL (Pa. April 24, 2013))

3 (N.T. Guilty Plea and Sentencing Hearing, 5/03/10, at 7-8) (emphases added). Appellant did not file a direct appeal from the judgment of sentence. On October 13, 2010, the Pennsylvania Board of Probation and Parole recommitted Appellant as a convicted parole violator and directed him to serve his unexpired term on the firearms violation and REAP offense. The DOC ran the new sentence consecutively to Appellant s parole violation backtime. 3 On April 27, 2012, Appellant filed a pro se first petition for relief pursuant to the PCRA, claiming that the May 3, 2010 sentence should run concurrently with his parole violation backtime and that the DOC illegal[l]y changed [his] sentence. (PCRA Petition, 4/27/12, at 4). On May 2, 2012, the PCRA court appointed counsel to represent Appellant. 3 Appellant claims that he learned that the DOC ran the sentences consecutively on October 14, 2011, when he requested parole review. (See Motion for Modification of Sentence nunc pro tunc, 6/12/12, at unnumbered page 1); (Appellant s Brief, at 4). On February 16, 2012, Appellant filed a petition for review in the Commonwealth Court, seeking mandamus to direct the DOC to run the May 3, 2010 sentence concurrent with his parole violation backtime. (See Markovitz v. Wetzel, supra at 1-2). On May 18, 2012, the Commonwealth Court entered a per curiam order sustaining the DOC s demurrer to Appellant s petition and dismissing it, finding that the DOC properly ran the sentence and parole violation backtime consecutively because, [p]ursuant to the Prisons and Parole Code, sentences for crimes committed while on parole must be served consecutively with the time remaining on the original sentence. (See Id. (citing 61 Pa.C.S.A. 6138(a)))

4 On June 12, 2012, while still represented by counsel, Appellant filed the instant pro se motion for modification of sentence nunc pro tunc raising essentially the same claims that he had advanced in his pro se PCRA petition. 4 The trial court did not address the pro se motion and it was denied by operation of law pursuant to Pennsylvania Rule of Criminal Procedure 720; the clerk of courts entered an order to this effect on November 6, See Pa.R.Crim.P. 720(B)(3)(a), (c). 5 On November 21, 2012, Appellant filed a pro se notice of appeal to this Court, purporting to appeal from the November 6, 2012 order entered by the clerk of courts. 6 4 The clerk of courts accepted the pro se motion for filing, and made an entry in the court docket. The motion s accompanying certificate of service indicates that Appellant served a copy of the motion on the Commonwealth and the PCRA court. It is not apparent from the record whether the clerk forwarded a copy of the pro se filing to Appellant s counsel in accordance with Pennsylvania Rule of Criminal Procedure 576 (providing that, in any case in which a defendant is represented by an attorney, if the defendant submits for filing a motion, notice, or document that has not been signed by the attorney, the clerk shall accept it for filing, time stamp and make a docket entry of it, and forward a copy to counsel). See Pa.R.Crim.P. 576(A)(4). 5 Although Appellant made the pro se filing during pending PCRA proceedings, the clerk of courts treated it as a post-sentence motion. 6 The clerk of courts also accepted Appellant s pro se notice of appeal for filing, and made an entry in the court docket. The associated certificate of service reflects that Appellant served a copy of the notice on the PCRA court and the Commonwealth. It is unclear from the record whether the clerk forwarded a copy of the pro se filing to Appellant s counsel. See Pa.R.Crim.P. 576(A)(4)

5 On December 3, 2012, appointed counsel filed a Turner/Finley 7 nomerit letter with the PCRA court and a motion to withdraw as counsel. Appellant filed a pro se response to the no-merit letter on December 6, 2012, requesting the court to remove PCRA counsel and appoint new counsel. On December 11, 2012, the PCRA court issued notice of its intent to dismiss Appellant s PCRA petition without a hearing. 8 Appellant filed a pro se objection to the notice on December 26, 2012, requesting the court to hold a hearing and appoint new counsel. On January 2, 2013, the court dismissed Appellant s PCRA petition as untimely, also determining that Appellant s substantive grounds for challenge [were] patently frivolous and not supported in law or in fact[.] (PCRA Court Order, 1/02/13, at unnumbered pages 1-2). On that same date, the PCRA court issued an order granting counsel s petition to withdraw, and entered a separate order appointing new counsel to represent Appellant. Appellant did not file an appeal from the PCRA court s January 2, 2013 order dismissing his PCRA petition. A review of the docket entries in this case shows that on February 11, 2013, appointed counsel filed an application to withdraw which this Court granted by per curiam order dated 7 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 8 See Pa.R.Crim.P. 907(1)

6 February 13, Appellant filed his pro se brief with this Court on February 19, Appellant s pro se brief raises the following issue for review: Did the trial court error [sic] in dening [sic] Motion to Modify Sentence Nunc Pro Tunc, [f]iled due to an illegal sentence made on an order under a plea agreement[?] (Appellant s Brief, at 3). 9 Preliminarily, however, we must determine whether Appellant s appeal is properly before this Court for review. In examining the record, it is evident that Appellant attempted to proceed with hybrid representation in both the trial court and this Court, acting pro se in part while counsel represented him. We are mindful of [our Supreme] Court s long-standing policy that precludes hybrid representation. Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011). It is well-settled that: [a criminal defendant does not have a] constitutional right to hybrid representation either at trial or on appeal.... A represented [defendant] may petition to terminate his representation; he may, acting pursuant to the rules of criminal procedure, proceed on his own behalf. Conversely, he may elect to allow counsel to take his appeal[.]... [However, he may not] confuse and overburden the court by his own pro se filings [while represented by counsel]. 9 We note that the trial court did not order Appellant to file a concise statement of errors complained of on appeal or file a Rule 1925(a) opinion. See Pa.R.A.P The Commonwealth did not submit a brief for our consideration

7 Commonwealth v. Ellis, 626 A.2d 1137, 1139, 1141 (Pa. 1993) (emphasis added). Therefore, [a defendant] must either allow his attorney to represent him or request permission to proceed pro se[.] Commonwealth v. Glacken, 32 A.3d 750, 753 (Pa. Super. 2011). While Pennsylvania Rule of Criminal Procedure 576 requires the clerk of courts to time stamp and make docket entries of any pro se filings submitted by represented defendants, this requirement only serves to provide a record of the filing, and does not trigger any deadline nor require any response. Pa.R.Crim.P. 576(A)(4), comment (citations omitted and emphasis added). In Commonwealth v. Pursell, 724 A.2d 293 (Pa. 1999), cert. denied, 528 U.S. 975 (1999), our Supreme Court made clear that Ellis applies to PCRA proceedings, explaining that [w]e will not require courts considering PCRA petitions to struggle through the pro se filings of defendants when qualified counsel represent those defendants. Id. at 302. In Commonwealth v. Jette, our Supreme Court discussed the issue of hybrid representation during a PCRA appeal, and noted that allowing petitioners to submit pro se filings in addition to counseled filings allows certain petitioners to avoid this Court s restrictions on serial requests for post-conviction relief. Jette, supra at (citations omitted). The Jette Court reconfirmed its prior precedent in Ellis, and reiterate[d] that the proper response to any pro se pleading is to refer the pleading to - 7 -

8 counsel, and to take no further action on the pro se pleading unless counsel forwards a motion. Id. at 1044 (emphasis added). The background of the instant case is a procedural morass in which Appellant filed the underlying pro se motion, styled as a motion for modification of sentence nunc pro tunc on June 12, 2012, while he was represented by PCRA counsel. He made this pro se filing approximately six months before counsel filed the Turner/Finley no-merit letter and petition to withdraw, and seven months before the PCRA court entered its January 2, 2013 orders permitting counsel to withdraw and appointing new counsel to represent Appellant. The PCRA court did not consider the merits of Appellant s pro se motion, and the clerk of courts entered an order denying the motion by operation of law on November 6, The instant appeal derives from Appellant s November 21, 2012 pro se notice of appeal, filed while PCRA counsel continued to represent him, purporting to appeal from the clerk s order. Based on this record, we conclude that Appellant had no right to submit pro se filings while clearly represented by PCRA counsel, and that his pro se motion for modification of sentence and subsequent pro se notice of appeal were nullities, having no legal effect. See Ellis, supra at 1139; see also Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (concluding that, where appellant was clearly represented by counsel on appeal, his pro se statement of errors complained of on appeal was a legal nullity); Glacken, - 8 -

9 supra at 753 (quashing appellant s appeal for lack of a counseled brief where appellant filed a pro se brief while his attorney remained counsel of record). Because we have determined that Appellant s underlying hybrid pro se motion for modification of sentence was a legal nullity, we conclude that the subsequent order the clerk of courts entered denying the motion by operation of law was improper, see Jette, supra at 1044, and was likewise a legal nullity We note that this case is distinguishable from Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011), in which our Supreme Court concluded that a pro se notice of appeal submitted to this Court by a counseled criminal defendant on direct appeal was a premature notice of appeal. In Cooper, the defendant filed a pro se notice of appeal from his judgment of sentence. Thereafter, counsel filed a timely post-sentence motion, which the trial court denied, and a second, timely, notice of appeal. A panel of this Court quashed the defendant s pro se appeal as premature and void, and also quashed the counseled appeal as duplicative. Our Supreme Court held that this Court erred in quashing the defendant s pro se appeal [u]nder the circumstances, where the proper, counseled appeal was quashed administratively[.] Id. at The Cooper Court stated [t]he appeal may have been premature when filed; but the subsequent actions of counsel and the trial court fully ripened it. Cooper, supra at 1004 (emphasis added). The Court also pointed out that the case involved a notice of appeal from a final judgment of sentence, where the fact of counsel s continued representation is not automatic. Cooper, supra at 1007, fn. 19. In the instant case, Appellant filed both his pro se motion and notice of appeal in this PCRA matter while appointed counsel clearly represented him, before counsel filed the no-merit letter and petition to withdraw. Further, neither the PCRA court nor counsel took any action that could be construed as advancing the pro se filings made by Appellant

10 Moreover, this appeal warrants dismissal for myriad other procedural reasons. To the extent that Appellant claims that his sentence is illegal and that illegal sentencing claims cannot be waived, such claims made pursuant to the PCRA must be presented in a timely PCRA petition. See Commonwealth v. Taylor, ---A.3d---, 2013 WL , at *2 (Pa. Super. April 19, 2013). Appellant raised his illegal sentencing claim in his PCRA petition, and the PCRA court dismissed the petition filed [on April 27, 2012, approximately] two years after the date of [Appellant s] guilty plea, May 3, 2010 as untimely where Appellant failed to allege or prove that any of the timeliness exceptions codified in [section 9545 of the PCRA] are applicable to the instant [petition]. (PCRA Court Order, 1/02/13, at unnumbered page 1). 11 Appellant did not file an appeal from the court s order dismissing his PCRA petition, despite the court s specific advisement that the order was a final order from which an appeal may be filed with the Superior Court within thirty days of the date of the order. (PCRA Court Order, 1/02/13, at unnumbered page 2). Furthermore, Appellant has already litigated his claim that the DOC improperly ran his new sentence and parole violation backtime consecutively in the Commonwealth Court. As noted above, the Commonwealth Court 11 A PCRA petition must be filed within one year of the date the petitioner's judgment of sentence becomes final unless the petitioner alleges and proves that an exception to the one-year time-bar is met. See Taylor, supra at *5 (citing 42 Pa.C.S.A. 9545(b))

11 properly determined that the DOC appropriately ran the new sentence and parole violation backtime consecutively under the applicable section of the Prisons and Parole Code, 61 Pa.C.S.A. 6138(a), and relevant caselaw, which provides that a parole violator convicted for another offense must serve his backtime and the new sentence in consecutive order. (See Markovitz v. Wetzel, supra at 1-2). Because Appellant already litigated his sentencing claim in the Commonwealth Court, he cannot relitigate the same issue under the PCRA. See 42 Pa.C.S.A. 9543(a)(3) (to be eligible for PCRA relief, the petitioner must plead and prove by a preponderance of the evidence that the allegation of error has not been previously litigated or waived); 42 Pa.C.S.A. 9544(a)(3)(an issue has been previously litigated if it was raised and decided in a proceeding collaterally attacking the conviction or sentence); see also Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011). Accordingly, we quash this appeal. Appeal quashed. Judgment Entered. Deputy Prothonotary Date: 7/3/