Com. v. Merring, B. (memorandum)

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J-S30020-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. BENJAMIN W. MERRING Appellant No. 1819 MDA 2011 Appeal from the Judgment of Sentence August 15, 2011 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0002721-2007 BEFORE: BENDER, P.J.E., MUNDY, J., and JENKINS, J. MEMORANDUM BY MUNDY, J.: FILED JUNE 02, 2014 Appellant, Benjamin W. Merring, appeals from the August 15, 2011 judgment of sentence of time served, entered after this Court vacated the legal and petition to withdraw her appearance pursuant to Anders v. California, 386 U.S. 738 (1967). After careful review, we affirm the judgment of sentence ition to withdraw. summarized the early history of this case. On June 18, 2008, a jury found [Appellant] guilty of fleeing or attempting to elude police, 75 Pa.C.S.A. § 3733(a), driving an unregistered vehicle, privileges are suspended or revoked, 75 Pa.C.S.A. § 1543(a), failing to use safety belts, 75 Pa.C.S.A. J-S30020-14 § 4581(a)(2), and operating a vehicle without valid inspection, 75 Pa.C.S.A. § 4703(a). On September 17, 2008, the [trial] court sentenced [Appellant] on count 1, as a second-time section 3733(a) offender, probation. The court ordered [Appellant] to pay fines pursuant to the remaining convictions. Additionally, the court ordered [Appellant] not to [Appellant] filed a timely notice of appeal to this Court. The trial court ordered [Appellant] to file a Pennsylvania Rule of Appellate Procedure 1925(b) statement. The [trial] court then filed an opinion pursuant to Pa.R.A.P. 1925(a), which thoroughly disposed of the issues presented. By order dated for failure to file a brief. On October 10, 2009, [Appellant] was charged with violating the terms and conditions of his probation by: (1) failing to notify his probation officers of unfavorable contact with law enforcement within 72 hours (stemming from his citation for failing to stop his vehicle at a red light signal), (2) possessing or having access to a firearm, (3) failing to pay costs and fines relating to his criminal prosecution, and (4) operating a motor vehicle Gagnon II [, Gagnon v. Scarpelli, 411 U.S. 778 (1973),] hearing on November 2, 2009, the [trial] court found that [Appellant] had violated his probation by driving his motor vehicle without a valid the court revoked his intermediate punishment and reconsideration. -2- J-S30020-14 Commonwealth v. Merring, 23 A.3d 1078, at 2-3 (unpublished memorandum) (citations and footnotes omitted). Appellant timely appealed his February 24, 2010 revocation sentence.1 His counsel filed a motion to withdraw together with an Anders brief. This and third issues were 6503 of the Vehicle Code, which limited any sentence for a second or subsequent conviction for violating Section 3733 to no more than six . Merring, supra at 18, citing 75 Pa.C.S.A. § 6503.2 On January 10, 2011, a panel of this Court remanded the case to the trial Id. at 19. ____________________________________________ 1 Appellant raised the following issues in that appeal. 1. Whether the lower court had jurisdiction over the Appellant[?] 2. Whether the lower court erred in finding that thus infringing on his fundamental right to travel[?] 3. Whether the lower court erred in imposing an illegal sentence and/or committed an abuse of discretion when it did not credit him for his incarceration time[?] 4. Whether the lower [court] abused its discretion in revoking his parole[?] Merring, supra at 3-4. 2 Effective September 4, 2012, the legislature amended Section 6503 to eliminate reference to convictions under 75 Pa.C.S.A. § 3733. -3- J-S30020-14 On August 15, 2011, Appellant appeared for resentencing represented by Dominic Mastri, Esquire. At that hearing, the trial court sentenced Appellant to time served and waived all fines and costs. On September 14, 2011, Appellant filed a pro se notice of appeal. As Appellant was represented by couns pro se notice of appeal in accordance with Pennsylvania Rule of Criminal Procedure 576(A)(4).3 On October 20, 2011, Assistant Public Defender, Donna DeVita, Esquire (Attorney DeVita), faxed a letter to the Lackawanna pro se notice of appeal to this Court.4 Our Prothonotary received the notice of appeal on ____________________________________________ 3 Rule 576(A)(4) provides 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 bee 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 attorney and the attorney for the Commonwealth within 10 days of receipt. Pa.R.Crim.P. 576(A)(4). Further, Rule 576(A)(4) applies to a pro se notice of appeal. Commonwealth v. Cooper, 27 A.3d 994, 1006 n.17 (Pa. 2011). 4 The letter states as follows. (Footnote Continued Next Page) -4- J-S30020-14 October 24, 2011, initially noting it as a pro se appeal. Attorney DeVita entered her appearance in this Court on behalf of Appellant on November 9, 2011.5 What then ensued is a protracted and convoluted procedural history occasioned by the attempt of Attorney DeVita to withdraw before the trial court and this Court without following the procedures and dictates of Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988), or Anders, supra and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). (Footnote Continued) Petition to _______________________ In a conversation with you on Wednesday, October 12, 2011, you informed me that Julie from believe that this appeal should be forwarded on to the Superior Court for processing. Kindly do so at your earliest convenience. 5 pro se actions have no legal effect while he or she remains represented by counsel. Commonwealth v. Hall, 476 A.2d 7, 9-10 (Pa. Super. 1984); see also Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) pro se filings while represented by counsel are legal nullities), appeal denied, 936 A.2d 40 (Pa. 2007). However, our Supreme Court has held that a pro se notice of appeal filed by an appellant while represented by counsel shall be considered merely premature if counsel and the trial court take appropriate actions to perfect the appeal. Cooper, supra at 1008 (Pa. 2011). pro se notice of appeal to this Court and her subsequent entry of appearance effectively perfected this appeal. Accordingly, we have jurisdiction to address the merits of the appeal. -5- J-S30020-14 Withdraw as Counsel, 11/22/11, (filed before the trial court)6, Application to Withdraw as Counsel, 1/11/12 (filed before this Court). As a result, this Court deferred further action on this appeal pending appearance of new counsel, or the trial court conducting an on-the-record Grazier hearing, proceed pro se. Per Curiam Order, 2/7/12, at 1; Per Curiam Order, 1/4/13, at 1. In the absence of any report from the trial court of its compliance in conducting a Grazier hearing, petition to withdraw and directed her to file a docketing statement. 7 Curiam Order, 9/16/13, at 1. Per After further delay by counsel, which was admonished by this Court, she filed a new application to withdraw together with an Anders brief on February 7, 2014. Appellant has not filed any Anders brief.8 ____________________________________________ 6 without conducting a Grazier hearing. Appellant filed a pro se appeal from that order on January 20, 2012, which was docketed in this Court at 171 MDA 2012. This Court dismissed that appeal on March 12, 2012 for failure to comply with Pa.R.A.P. 3517. 7 In its Rule 1925(a) opinion, the trial court recounts its efforts to comply Grazier hearing. From that account failure to achieve that goal and the inordinate delay in advancing this appeal. 8 The trial court did not order Appellant to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). The trial court filed a Rule 1925(a) opinion on October 3, 2013, apparently (Footnote Continued Next Page) -6- J-S30020-14 In her Anders Brief, counsel raises the following five issues on A. Whether the lower court had jurisdiction over the Appellant? B. Whether the lower court erred in finding that vehicle, thus infringing on his fundamental right to travel? C. Whether the lower court violated his rights under Pa.R.Cr[im].P. 600 in the underlying criminal case? D. department E. of transportation was a Whether the Appellant was denied the assistance of counsel in the underlying criminal charge? Anders Brief at 4. Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citation omitted). Additionally, we revi Anders brief for compliance with the requirements set forth by our Supreme Court in Santiago. [W]e hold that in the Anders brief that accompanies court(Footnote Continued) _______________________ -7- J-S30020-14 withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous. Santiago, supra, at 361. Anders brief to h[er] client. Attending the brief must be a letter that advises the client of his right to: (1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or attention in addition to the points raised by counsel in the Anders Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal whether the Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Instantly we are satisfied that counsel has complied with the requirements of Anders and Santiago. Counsel carefully summarized the pertinent procedural history and made appropriate references to the record. -8- J-S30020-14 She acknowledged her own review of the record, articulated that no issues could arguably support an appeal, and stated her conclusion that the appeal is frivolous. Further, she set forth the reasons upon which she based that conclusion. Counsel has also complied with the notification requirements described in Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005), and its progeny. Since receiving notice, Appellant has not filed any response. We therefore proceed with our independent review of the record pro se notice of appeal indicated he was appealing from the August 15, 2011 judgment of determinations, etc. from the filing of the original papers in the [trial] court on January 18, 2007 continuing to the date of the sentencing order of quoting Appeal, 9/14/11, at 1. Thus, all the issues raised by counsel in her Anders disposed of by this Court in earlier appeals or could have been raised in those appeals but were not. illegal sentence. [W]here a case is remanded to resolve a limited issue, only matters related to the issue on remand -9- J-S30020-14 may be appealed. Commonwealth v. Jackson, 765 A.2d 389 (Pa. Super. 2000). In Jackson, this hearing to determine whether the Commonwealth acted with due diligence, as required by Pa.R.Crim.P. Id. at 390. Upon remand, the trial court found the Commonwealth acted with due diligence. On appeal, the appellant raised three issues, the last of which Id. at 391. This Court concluded that the last issue was waived, as it was unrelated to the matter on remand and had not been previously raised in the trial court. Id. at 395. Commonwealth v. Lawson, 789 A.2d 252, 253 (Pa. Super. 2001). None of the Anders brief issues relate to the propriety of the trial nly issue encompassed in already served time on the underlying charges in excess of the maximum permitted by Section 6503 of the Vehicle Code, on remand the trial court sentenced Appellant to time served and discharged him. Accordingly, we again agree with counsel that there are no non-frivolous issues to be appealed relative to the limited issues on remand. appeal Goodwin, supra. Accordingly, we grant August 15, 2011 judgment of sentence. Judgment of sentence affirmed. Petition to withdraw granted. - 10 - J-S30020-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/2/2014 - 11 -

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