Com. v. Kennoy, J. (memorandum)

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J-S04001-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JEFFREY MARK KENNOY, Appellant No. 355 EDA 2012 Appeal from the PCRA Order Entered December 16, 2011 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0006475-2007 BEFORE: BENDER, P.J., SHOGAN, J., and FITZGERALD, J.* MEMORANDUM BY BENDER, P.J. FILED JANUARY 23, 2014 Appellant, Jeffrey Mark Kennoy, appeals pro se December 16, 2011 order denying his petition for relief filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. ยงยง 9541-9546. reasons, we remand for further proceedings For the following consistent with this memorandum decision. Appellant pled guilty on December 30, 2009, to two counts of aggravated assault and various firearm offenses. On June 28, 2010, he was did not file a direct appeal; instead, he filed a pro se PCRA petition on May 10, 2011. Kate M. Kelly, Esq., was appointed to represent Appellant and ____________________________________________ * Former Justice specially assigned to the Superior Court. J-S04001-14 filed an amended petition on his behalf. After conducting a hearing on entered on December 16, 2011. Appellant filed a timely pro se notice of appeal.1 The PCRA court directed Appellant, who was still represented by Attorney Kelly, to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. Anders/McClendon Brief in Lieu of Concise Statement 2 Com of Matters She then filed with the trial court a petition to withdraw as counsel, as well as an Anders brief. The issued a Pa.R.A.P. 1925(a) opinion stating that Attorney Kelly should have filed her petition to withdraw with this Court. See PCRA Court Opinion, 5/15/13, at 2 (citing Pa.R.A.P. 1925(c)(4)). Now, on appeal, Appellant has filed a pro se brief, while nothing has been forthcoming from Attorney Kelly. These circumstances are problematic ____________________________________________ 1 mailed on January 13, 2012, but was not docketed until January 18, 2012. pro se notice of appeal as being timely filed. See Commonwealth v. Little, 716 A.2d 1287, 1288 (Pa. Super. 1998) (stating appeals filed by pro se prisoner priso 2 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). -2- J-S04001-14 for several reasons. First, when Appellant filed a notice of appeal, the PCRA withdraw. See Pa.R.A.P. 1701(a) (directing that, except as otherwise prescribed, after an appeal is taken, the trial court may no longer proceed further in the matter); see also Commonwealth v. Cooper, 27 A.3d 994, app should have filed her petition to withdraw with this Court. See Pa.R.A.P. 1925(c)(4). Because she did not, Attorney Kelly is still counsel of record for Appellant. Accordingly, we are unable to consider his pro se brief, as to do so would be to permit hybrid representation in violation of Commonwealth v. Ellis, 626 A.2d 1137, 1141 (Pa. 1993) (disapproving of pro se filings where the appellant is represented by counsel). Instead, the appropriate pro se brief is to forward it to Attorney Kelly, and to await action by Attorney Kelly before proceeding further in this appeal. Commonwealth v. Jette 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 pro se brief to Attorney Kelly. Additionally, we order Attorney Kelly to file, with this Court -3- J-S04001-14 to Turner/Finley, within thirty days of the date this memorandum decision is filed.3 Case remanded for further proceedings. Jurisdiction retained. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/23/2014 ____________________________________________ 3 Rule 1925(c)(4), we do not have a trial court opinion addressing any of we will remand for the filing of an opinion at that point. -4-

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