Com. v. Sibble, K. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KERRY JOHN SIBBLE
Appellant No. 545 WDA 2014
Appeal from the PCRA Order December 30, 2013
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000118-2012
CP-61-CR-0000157-2011
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 30, 2015
Kerry John Sibble (“Appellant”) appeals from the order of the Venango
County Court of Common Pleas denying his petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We remand
to the PCRA court for further proceedings consistent with this opinion.
On March 22, 2011, Appellant was charged at CP-61-CR-0000157-
2011 with driving under the influence/general impairment (2nd offense),1
driving under the influence/highest rate of alcohol (2nd offense),2
restrictions of alcoholic beverages,3 and careless driving.4 On March 8,
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1
75 Pa.C.S. § 3802(a)(1).
2
75 Pa.C.S. § 3802(c).
3
75 Pa.C.S. § 3809(a).
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2012, Appellant pled guilty to all charges. He requested a continuance of
his sentencing hearing because he had a separate case pending and wanted
to be sentenced for both cases at the same hearing.
The charges in the second case, CP-61-CR-0000118-2012, stemmed
from an April 1, 2011 criminal information, alleging criminal conspiracy to
manufacture a controlled substance (methamphetamine)5 and possessing
precursors with intent to manufacture.6 On April 12, 2012, Appellant pled
guilty to the conspiracy to manufacture count and the Commonwealth nolle
prossed the possessing precursors count.
On April 12, 2012, the trial court granted Appellant’s motion to change
the sentencing date to April 27, 2012 and to impose sentence for both
convictions at the same hearing.
On April 27, 2012, the trial court sentenced Appellant at CP-61-CR-
0000157-2011 (the March 8, 2012 conviction) to one to five years’
incarceration for DUI/highest rate and imposed $25.00 fines for the
summary offenses of restrictions of alcoholic beverages and careless driving.
The trial court did not impose a sentence for DUI/general impairment, which
it found merged with DUI/highest rate. The trial court sentenced Appellant
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(Footnote Continued)
4
75 Pa.C.S. § 3714(a).
5
18 Pa.C.S. § 903(a)(1); 35 P.S. § 780-113(a)(30).
6
35 P.S. § 780-113.1(a)(3).
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at CP-61-CR-0000118-2012 (the April 12, 2012 conviction) to 2 to 5 years’
incarceration for criminal conspiracy, which was to run consecutive to the
sentence imposed at CP-61-CR-0000118-2012.
Appellant filed a motion to reconsider sentence, which the trial court
denied on May 7, 2012. Appellant did not appeal.
On January 10, 2013, Appellant filed a PCRA petition. The PCRA court
appointed counsel7 and held a hearing on November 1, 2013. On December
30, 2013, the PCRA court denied the petition. Appellant filed a pro se notice
of appeal.8 On March 31, 2014, the court granted Appellant in forma
pauperis status. On April 30, 2014, Appellant filed a pro se statement of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). On May 13, 2014, the PCRA court issued a 1925(a)
opinion adopting its December 30, 2013 opinion denying Appellant’s PCRA
petition.
Appellant raises the following issue on appeal:
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7
Counsel did not file an amended PCRA petition.
8
The court issued the order denying his PCRA petition on December 30,
2013. Appellant’s proof of service states he mailed his notice of appeal on
January 23, 2014. The clerk of court did not docket the notice until March
25, 2014. Pursuant to the prisoner mailbox rule, the notice was timely.
Commonwealth v. Hopfer, 965 A.2d 270, 272 n.2 (Pa.Super.2009)
(“Pursuant to the ‘prisoner mailbox rule,’ we deem [an appellant’s]
documents filed on the date when he placed them in the hands of prison
authorities for mailing.”).
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Did the lower court judge erred [sic] when he denied my
ineffective counsel claims?
Appellant’s Brief at 1.
We cannot review this claim. We may not review pro se filings
submitted by a counseled appellant. See Commonwealth v. Willis, 29
A.3d 393, 399 (Pa.Super.2011) (court erred in considering merits of pro se
amended PCRA petition where defendant had counsel); Commonwealth v.
Jette, 23 A.3d 1032, 1036 (Pa.2011) (Supreme Court of Pennsylvania has
“long-standing policy that precludes hybrid representation”).9 A defendant
has a right to representation by counsel for a first PCRA petition.
Commonwealth v. Stossel, 17 A.3d 1286, 1288 (Pa.Super.2011). This
right exists “throughout the post-conviction collateral proceedings, including
any appeal from disposition of the petition for post-conviction collateral
relief.” Pa.R.Crim.P. 904(F)(2); accord Commonwealth v. Brown, 836
A.2d 997, 998-99 (Pa.Super.2003). Where counsel has entered an
appearance on a defendant’s behalf, “counsel is obligated to continue
representation until the case is concluded or counsel is granted leave by the
court to withdraw his appearance.” Brown, 836 A.2d at 999. Further,
“[w]hen a waiver of the right to counsel is sought at the post-conviction and
appellate stages, an on-the-record determination should be made that the
waiver is a knowing, intelligent, and voluntary one.” Commonwealth v.
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9
Hybrid representation is “self-representation together with counseled
representation.” Commonwealth v. Ellis, 626 A.2d 1137, 1138 (Pa.1993).
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Grazier, 713 A.2d 81, 82 (Pa.1998). For waiver of the right to PCRA
counsel, the court must determine at the Grazier hearing whether Appellant
understands: “(1) his right to be represented by counsel; (2) that if he
waived this right, he will still be bound by all normal procedural rules; and
(3) that many rights and potential claims may be permanently lost if not
timely asserted.” Commonwealth v. Robinson, 970 A.2d 455, 459
(Pa.Super.2009). A Grazier hearing is required even when neither party
challenges the lack of a hearing. See Stossel, 17 A.3d at 1290.
Because Appellant filed a pro se notice of appeal of the denial of his
first PCRA petition, we remand this case to the PCRA court for a Grazier
hearing. The PCRA court shall conduct the hearing within 30 days of the
date of this memorandum. If Appellant wishes to proceed pro se, the PCRA
court may permit Appellant’s counsel to withdraw, and the PCRA court shall
return the record to this Court for disposition of the appeal. If, however,
Appellant does not waive his right to counsel, the PCRA court shall
determine whether Appellant’s counsel abandoned him and either appoint
new counsel to represent Appellant or direct his counsel to continue to
represent Appellant on appeal.10 If Appellant wishes to proceed with
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10
If counsel continues to represent Appellant, counsel would have the
following three options:
Counsel could resume his representation and file an
advocate’s brief in appellant’s behalf, counsel could
resume his representation and file a [brief pursuant to
(Footnote Continued Next Page)
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counsel, the PCRA court shall instruct counsel to file an amended Rule
1925(b) statement and the trial court shall issue a supplemental Rule
1925(a) opinion. The 1925(a) opinion shall be filed within 45 days of the
Grazier hearing.
Case remanded for further proceedings consistent with this
memorandum. Jurisdiction retained.
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(Footnote Continued)
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927
(1988), and Commonwealth v. Finley, 379 Pa.Super.
390, 550 A.2d 213 (1988),] or counsel could petition the
PCRA court for leave to withdraw prior to the filing of a
brief with this court.
Brown, 836 A.2d at 999 (quoting Commonwealth v. Quail, 729 A.2d 571,
573 n.2 (Pa.Super.1999)).
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