Commonwealth v. Ortiz

1

COMMONWEALTH OF PENNSYLVANIA v. ANTONIO ORTIZ Appellant

No. 628 EDA 2022

No. J-S45011-22

Superior Court of Pennsylvania

March 13, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered January 12, 2022 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0003089-2021

Joseph D. Seletyn, Esq.

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM

OLSON J.:

Appellant Antonio Ortiz, appeals from the January 12, 2022 judgment of sentence entered in the Court of Common Pleas of Lehigh County that imposed an aggregate sentence of 3 to 10 years' incarceration after Appellant pleaded guilty to inter alia, manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance (fentanyl) and receiving stolen property (a firearm).^[1] Appellant's counsel filed an Anders brief^[2] and a petition to withdraw with this Court. We grant counsel's petition to withdraw and affirm the judgment of sentence.

A review of the record demonstrates that at trial court docket number CP-39-CR-0003089-2021 ("Case 3089-2021"), Appellant pleaded guilty to the aforementioned criminal offenses on January 12, 2022. That same day, and as part of the same negotiated plea agreement, Appellant also pleaded guilty to aggravated assault of a police officer and resisting arrest or other law enforcement^[3] at trial court docket number CP-39-CR-0001598-2021 ("Case 1598-2021"). At trial court docket number CP-39-CR-0001599-2021 ("Case 1599-2021"), Appellant pleaded guilty to fleeing or attempting to elude a police officer.^[4] Finally, at trial court docket number CP-39-CR-0003090-2021 ("Case 3090-2021"), Appellant pleaded guilty to simple assault - fear of imminent serious bodily injury.^[5]

Upon accepting Appellant's guilty plea,^[6] the trial court sentenced Appellant, that same day, as follows: at Case 3089-2021, Appellant was sentenced to 3 to 10 years' incarceration for possession with the intent to deliver a controlled substance and 12 to 24 months' incarceration for receiving stolen property; at Case 1598-2021, Appellant was sentenced to 2 to 10 years' incarceration for aggravated assault and 3 to 12 months' incarceration for resisting arrest; at Case 1599-2021, Appellant was sentenced to 3 to 12 months' incarceration for fleeing or attempting to elude a police officer; and at Case 3090-2021, Appellant was sentenced to 6 to 12 months' incarceration for simple assault. The sentences imposed at the aforementioned trial court dockets were to run concurrently, with credit for time served (50 days), and the sentences were to run consecutively to any sentence Appellant was currently serving.^[7] Ultimately, Appellant was sentenced to an aggregate term of 3 to 10 years' incarceration, with the aggregate sentence to run consecutively to the sentence Appellant was currently serving, which was 2 to 5 years' incarceration.

On January 19, 2022, Appellant filed pro se a "petition in lieu of [a] more formal petition to appeal [an] illegal sentence" ("post-sentence motion").^[8] A notation on the trial court docket demonstrates that a copy of Appellant's pro se post-sentence motion was forwarded to Appellant's counsel via electronic mail.

On February 3, 2022, the trial court conducted a hearing on Appellant's pro se post-sentence motion. Appellant, his counsel, and counsel for the Commonwealth were present at, and participated in, the hearing. At the conclusion of the hearing, the trial court denied Appellant's pro se post-sentence motion. Trial Court Order, 2/3/22.

On February 8, 2022, Appellant filed pro se a "petition in lieu of [a] more formal petition to appeal, correct, [or] modify [a] sentence" ("pro se petition to appeal").^[9] The trial court perceived Appellant's pro se petition to appeal as a notice of appeal and forwarded the same to this Court. See Trial Court Docket at 2/15/22 entry; see also Trial Court Order, 2/15/22. Appellant's pro se petition to appeal was accepted by this Court as a notice of appeal and docketed at 491 EDA 2022.

On February 15, 2022, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Trial Court Order, 2/15/22. A copy of the trial court's February 15, 2022 order was sent to Appellant's counsel via electronic mail on February 16, 2022.

On March 2, 2022, Appellant's counsel filed a counseled notice of appeal, which was docketed with this Court at 628 EDA 2022.^[10] On March 3, 2022, the trial court ordered Appellant to file a Rule 1925(b) statement. Counsel filed a statement of intent to file an Anders brief in lieu of a Rule 1925(b) statement on March 10, 2022.^[11] On September 6, 2022, counsel filed with this Court an Anders brief, as well as a petition to withdraw as counsel for Appellant.

Preliminarily, we must review the procedural history of the case sub judice to determine whether the March 2, 2022 counseled notice of appeal was timely filed, as the timeliness of an appeal implicates this Court's jurisdiction. Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en banc) (stating, the timeliness of an appeal implicates this Court's jurisdiction and, as such, this Court may consider the issue of jurisdiction sua sponte), appeal denied, 882 A.2d 477 (Pa. 2005); see also Pa.R.Crim.P. 720(A)(2)(a) and (3) (stating, "[i]f 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" otherwise, the notice of appeal must be filed within 30 days of the entry of the order deciding the post-sentence motion).

Upon entry of appearance, retained counsel continues to represent a defendant "through direct appeal or until granted leave to withdraw by the court[.]" Pa.R.Crim.P. 120(A)(4). It is well-established that a criminal defendant, such as Appellant, who is represented by counsel, has no constitutional right to hybrid representation in either the trial court or an appellate court. Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993).

If hybrid representation occurs at the trial court level, Pennsylvania Rule of Criminal Procedure 576(a) sets forth the procedural requirements for accepting pro se filings as follows:

(4) In any case in which a defendant is represented by an attorney, if the defendant submits for filing a written motion, notice, or document that has not been signed by the defendant's attorney, the clerk of courts shall accept it for filing, time stamp it with the date of receipt and make a docket entry reflecting the date of receipt, and place the document in the criminal case file. A copy of the time stamped document shall be forwarded to the defendant's attorney and the attorney for the Commonwealth within 10 days of receipt.

(5) If a defendant submits a document pro se to a judge without filing it with the clerk of courts, and the document requests some form of cognizable legal relief, the judge promptly shall forward the document to the clerk of courts for filing and processing in accordance with this rule.

Pa.R.Crim.P. 576(a)(4) and (5). A pro se filing has no tolling effect.

Pa.R.Crim.P. 576 Comments (stating, "[t]he requirement that the clerk [of courts] time stamp and make docket entries of the [pro se] filing[] only serves to provide a record of the filing, and does not trigger any deadline nor require any response"); see also Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (stating that, "the 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"), abrogated on other grounds by, Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021).

Pennsylvania Rule of Criminal Procedure 720 sets forth post-sentence procedures, in pertinent part, as follows:

Rule 720. Post-Sentence Procedures; Appeal (A) Timing.

(1) Except as provided in paragraphs (C) and (D), a written post-sentence motion shall be filed no later than 10 days after imposition of sentence.

(2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed:

(a) within 30 days of the entry of the order deciding the motion; (b) within 30 days of the entry of the order denying the motion by operation of law in cases in which the [trial court] fails to decide the motion; or

(c) within 30 days of the entry of the order memorializing the withdrawal in cases in which the defendant withdraws the motion.

(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, except as provided in paragraph (A)(4) [(concerning when the Commonwealth files a timely motion to modify a sentence)].

Pa.R.Crim.P. 720(A)(1-3).

In the instant case, after Appellant was sentenced on January 12 2022, Appellant filed a pro se post-sentence motion while still represented by counsel. In accord with Rule 576, the trial court accepted Appellant's pro se post-sentence motion for filing and docketed the same on January 24, 2022.^[12]The clerk of courts also sent a copy of the pro se post-sentence motion to Appellant's counsel of record.^[13] The trial court then acted upon Appellant's pro se post-sentence motion by scheduling a hearing on the matter.^[14] In denying Appellant's pro se post-sentence motion, the trial court stated,

So at this point, [Appellant], the motion that you have filed is called a petition to appeal an illegal sentence. I am going to deny that motion because there is nothing that is illegal about this [sentence based upon a review of] the sentencing sheets[] I complied with the plea agreement [] that you

...