Com. v. Heagy, T.

J-S67020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TYLER T. HEAGY

Appellant No. 667 MDA 2015

Appeal from the Judgment of Sentence October 7, 2014 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000680-2014

BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J. FILED JANUARY 15, 2016

Appellant, Tyler T. Heagy, appeals from the judgment of sentence

entered October 7, 2014, in the Court of Common Pleas of Lebanon County.

After careful review, we quash.

On October 7, 2014, Appellant entered a guilty plea to criminal

trespass, two counts of simple assault, reckless endangerment, criminal

mischief, and two summary counts of harassment.1 Immediately thereafter,

the trial court sentenced Appellant to an aggregate term of time served to

23 months’ imprisonment. Appellant’s trial counsel did not file a post-

sentence motion within ten days of the entry of the judgment of sentence. ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 3503(a)(1)(ii); 2701(a)(1); 2705; 3304(a)(2); and 2709(a)(1), respectively. J-S67020-15

However, on October 20, 2014, Appellant, who was incarcerated, filed a pro

se post-sentence motion seeking to withdraw his guilty plea. Over the

following months, Appellant filed several pro se petitions, including a petition

seeking the appointment of new counsel for litigating his post-sentence

motion, which the trial court granted on January 22, 2015. Newly appointed

counsel thereafter filed a Memorandum Supporting Defendant’s Post-

Sentence Motion on February 27, 2015. The trial court denied Appellant’s

post-sentence motion on March 16, 2015, and Appellant filed the instant

appeal on April 14, 2015.

Prior to reaching the merits of Appellant’s arguments, we must first

determine whether this Court has jurisdiction to hear this appeal. A notice of

appeal must be filed within 30 days of the entry of the order being appealed.

See Pa.R.A.P. 903(a); Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa.

Super. 2000). This Court may not extend the time for filing a notice of

appeal. See Pa.R.A.P. 105(b).

Rule 720 of the Pennsylvania Rules of Criminal Procedure provides that

a party may file post-sentence motions no later than 10 days after

imposition of sentence. A timely motion tolls the appeal period; an untimely

motion does not. See Commonwealth v. Dreves, 839 A.2d 1122 (Pa.

Super. 2003) (en banc); Commonwealth v. Felmlee, 828 A.2d 1105 (Pa.

Super. 2003) (en banc). This Court has long recognized that the 30-day

appeal period must be strictly construed, as it is jurisdictional in nature.

See Moir, 766 A.2d at 1254. Therefore, “where the defendant does not file

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a timely post-sentence motion, there is no basis to permit the filing of an

appeal beyond 30 days after the imposition of sentence.” Commonwealth

v. Green, 862 A.2d 613, 618 (Pa. Super. 2004) (en banc).

Here, Appellant’s judgment of sentence was entered on October 7,

2014. Therefore, the due date for the filing of a post-sentence motion with

the clerk of courts was October 17, 2014. See 1 Pa.C.S.A. § 1908;

Pa.R.Crim.P. 720(A)(1). Appellant’s motion was not filed with the clerk of

courts until October 20, 2014. Thus, on its face, Appellant’s post-sentence

motion did not toll the 30-day appeal period. See Pa.R.Crim.P. 720(A)(3)

(“If the defendant does not file a timely post-sentence motion, the

defendant’s notice of appeal shall be filed within 30 days of imposition of

sentence….”).

Appellant asserts, and the trial court agreed, that his post-sentence

motion was timely filed pursuant to the prisoner mailbox rule. See Response

to Motion to Show Cause, 5/26/15; Trial Court Opinion, 3/16/15 at 4-5. We

disagree.

Under the prisoner mailbox rule, timeliness of a filing from an

incarcerated pro se party is measured from the date the prisoner places the

filing in the institution’s mailbox. See Smith v. Pa. Bd. Of Prob. and

Parole, 683 A.2d 278, 281 (Pa. 1996). This rule applies to “all appeals from

pro se prisoners[.]” Commonwealth v. Jones, 700 A.2d 423, 426 (Pa.

1997) (citation omitted).

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Our review of the record reveals that Elizabeth Judd, Esquire,

represented Appellant at trial. At the time Appellant filed his pro se post-

sentence motion, counsel had not sought to withdraw her appearance, and

was thus still representing Appellant. Although Appellant filed a pro se post-

sentence motion, our courts have made clear that a defendant who is

represented by counsel may not engage in hybrid representation by filing

pro se documents. See, e.g., Commonwealth v. Ali, 10 A.3d 282, 293

(Pa. 2010) (where appellant was represented by counsel on appeal, his pro

se Rule 1925(b) statement was a “legal nullity”); Commonwealth v. Ellis,

626 A.2d 1137, 1139, 1141 (Pa. 1993) (“[T]here is no constitutional right to

hybrid representation either at trial or on appeal. ... A [defendant] may not

confuse and overburden the court by his own pro se filings of briefs at the

same time his counsel is filing briefs on his behalf.”). Thus, the imperative

was on Appellant’s counsel to file a timely post-sentence motion, and

because Appellant was still represented by counsel at the time he filed his

pro se post-sentence motion, that pro se filing constituted a legal nullity.

Although Appellant later requested and was appointed new counsel for

the purpose of litigating his post-sentence motion, the Memorandum of Law

Supporting Defendant’s Post-Sentence Motion filed February 27, 2015, did

not excuse or rectify the untimely filing of Appellant’s post-sentence

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motion.2 The notice of appeal filed by Appellant’s new counsel was likewise

untimely as it was filed over six months after the imposition of the judgment

of sentence, well in excess of the 30-day requirement.

Although the trial court in this case ruled on the merits of the untimely

post-sentence motion following the appointment of new counsel, see

Opinion and Order, 3/16/15, the trial court’s order “is no substitute for an

order expressly granting nunc pro tunc relief.” Dreves, 839 A.2d at 1129.

Based on the foregoing, Appellant has failed to preserve his right to

appellate review by filing a timely post-sentence motion and/or a timely

notice of appeal. We therefore quash the appeal. Our quashal is without

prejudice to Appellant to seek post-conviction relief.

Appeal quashed.

Judge Bowes joins the memorandum.

Judge Platt concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/15/2016

____________________________________________

2 Appellant’s new counsel did not request permission from the trial court to file a post-sentence motion nunc pro tunc. See Dreves, 839 A.2d at 1128 (“If the trial court does not expressly grant nunc pro tunc relief, the time for filing an appeal is neither tolled nor extended.”).

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