Commonwealth v. Vinson

• Decision Date: 14 April 2021
• Docket Number: No. 645 MDA 2020,645 MDA 2020
• Citation: 249 A.3d 1197
• Parties: COMMONWEALTH of Pennsylvania v. Jason Brandon VINSON, Appellant
• Court: Pennsylvania Superior Court

249 A.3d 1197

COMMONWEALTH of Pennsylvania

v.Jason Brandon VINSON, Appellant

No. 645 MDA 2020

Superior Court of Pennsylvania.

Submitted March 8, 2021

Filed April 14, 2021

Todd M. Mosser, Philadelphia, for appellant.

Kirsten A. Gardner, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant, Jason Brandon Vinson, appeals from the March 27, 2020, order entered in the Court of Common Pleas of Lycoming County dismissing his first petition filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541 - 9546, at lower court docket numbers CP-41-CR-0002027-2014 ("CR-2027-2014") and CP-41-CR-0001574-2014 ("CR-1574-2014"). After a careful review, we affirm.

The relevant facts and procedural history are as follows: On March 3, 2017, at lower court docket number CR-2027-2014, Appellant, who was represented by private counsel, George Lepley, Esquire, pled nolo contendere to two counts of burglary, one count of conspiracy to commit burglary, one count of criminal trespass, three counts of theft by unlawful taking, and two counts of receiving stolen property. On April 17, 2017, at lower court docket number CR-1574-2014, Appellant pled guilty to one count of theft from a motor vehicle.

The cases were consolidated for sentencing, and following a sentencing hearing on November 21, 2017, Appellant was sentenced to ten years to twenty years for one count of burglary, one and one-half years to five years for one count of receiving stolen property, and one and one-half years to five years for one count of theft by unlawful taking. These sentences were imposed consecutively to one another.¹

At the conclusion of the sentencing hearing, the trial court provided Appellant with his post-sentence and appellate rights. N.T., 11/21/17, at 31. The trial court informed Appellant that, since he was represented by counsel, he should file his post-sentence motion or direct appeal with the assistance of counsel. Id.

Thereafter, on November 30, 2017, despite being represented by counsel, Appellant filed a pro se post-sentence motion at each lower court docket number. On December 28, 2017, new private counsel, Michael C. Morrone, Esquire, entered his appearance on behalf of Appellant. On December 29, 2017, Attorney Morrone filed a post-sentence motion on behalf of Appellant at each lower court docket number.

On March 9, 2018, the trial court held a post-sentence motion hearing at which Appellant, Attorney Lepley, and Attorney Morrone were present. During the hearing, Appellant admitted that, after sentencing, he did not ask his counsel, Attorney Lepley, to file post-sentence motions or a direct appeal. N.T., 3/9/18, at 9. Attorney Morrone testified he met with Appellant on December 29, 2017, and he filed a post-sentence motion after the meeting. Id. at 8. The trial court noted on the record that Attorney Lepley had not requested permission to withdraw his representation, and during the time period for Appellant to file a timely post-sentence motion, Appellant was represented by Attorney Lepley. Id. at 10-11.

Accordingly, the trial court determined Appellant's November 30, 2017, pro se post-sentence motion was a legal nullity. Id. at 12-13. The trial court further indicated the counseled December 29, 2017, post-sentence motion was untimely, and the trial court denied Appellant permission to file a post-sentence motion nunc pro tunc . The trial court noted it was granting Attorney Lepley permission to withdraw his representation and Attorney Morrone would represent Appellant in future proceedings. Id. at 13.

On April 4, 2018, despite the fact he was represented by Attorney Morrone, Appellant filed a pro se appeal to this Court, and on September 13, 2018, this Court issued a rule to show cause as to why the appeal should not be quashed as untimely.

On September 27, 2018, Attorney Morrone filed a response on behalf of Appellant indicating that Appellant filed "a timely pro se post-sentence motion, which [had] never been denied or acted upon by the trial court." Appellant's Counseled Response, filed 9/27/18. He requested that this Court remand the matter and direct the trial court to rule on the November 30, 2017, pro se post-sentence motion. Id.

By order entered on September 28, 2018, this Court sua sponte quashed Appellant's pro se appeal as untimely filed. Specifically, we held the following:

Appellant was sentenced on November 21, 2017. Before trial counsel was granted leave to withdraw, Appellant filed a pro se post-sentence motion on November 30, 2017. New appellate counsel subsequently filed a post-sentence motion on December 29, 2017. The trial court denied counsel's motion on March 9, 2018, and also denied Appellant permission to file a post-sentence motion nunc pro tunc . Appellant filed a notice of appeal on April 6, 2018.

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 (Pa.Super. 2000). This Court may not extend the time for filing a notice of appeal. See Pa.R.A.P. 105(b). Pa.R.Crim.P. 720 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. Commonwealth v. Dreves , 839 A.2d 1122 (Pa.Super. 2003) (en banc ); Commonwealth v. Felmlee , 828 A.2d 1105 (Pa.Super. 2003) (en banc ). Where a party is represented by counsel and files a pro se pleading, the proper response is to refer the pleading, which is a nullity, to counsel. See Pa.R.Crim.P. 576(a)(4) ; Commonwealth v. Jette , 23 A.3d 1032 (Pa. 2011) ; Commonwealth v. Ellis , 626 A.2d 1137 (Pa. 1993) (defendant does not have right to self-representation together with counseled representation at trial or appellate level); Commonwealth v. Nischan , 928 A.2d 349 (Pa.Super. 2007) (rejecting pro se post-sentence motion filed by counseled defendant as nullity).

By this Court's order of September 13, 2018, Appellant was directed to show cause as to why this appeal should not be quashed as untimely filed. Appellant filed a response, but did not present legal argument to justify this Court's jurisdiction. Therefore, the above-captioned appeal is hereby QUASHED .

Commonwealth v. Vinson , 611 MDA 2018 (Pa.Super. filed 9/28/18) (per curiam order).

Appellant did not file a petition for allowance of appeal with our Supreme Court. Rather, on March 7, 2019, Appellant, represented by Attorney Morrone, filed a counseled PCRA petition at each lower court docket number, and on August 30, 2019, as well as on November 6, 2019, Appellant filed counseled amended PCRA petitions.

Following a hearing, on March 27, 2020, the PCRA court dismissed Appellant's PCRA petition on the basis it was untimely filed. The order was filed at both lower court docket numbers CR-1574-2014 and CR-2027-2014.

On April 24, 2020, Attorney Morrone filed on behalf of Appellant a single notice of appeal, which listed both docket numbers CR-1574-2014 and CR-2027-2014.² The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement, and consequently, Appellant did not file a Rule 1925(b) statement. The PCRA court filed a Pa.R.A.P. 1925(a) opinion.

On appeal, Appellant sets forth the following issues in his "Statement of Questions Involved" (verbatim):

1. Rather than quash this appeal pursuant to Walker , should this Court allow a remand so that counsel can cure prior counsel's^[3] failure to file multiple notices of appeal on both docket numbers?

2. Should this Court reverse the PCRA court's finding of untimeliness where such a finding violates Defendant's state and federal constitutional rights to effective assistance of collateral counsel?

Appellant's Brief at 2 (suggested answers omitted) (footnote added).

Initially, we address whether the instant appeal should be quashed under Commonwealth v. Walker , 646 Pa. 456, 185 A.3d 969 (2018). In Walker , our Supreme Court held on June 1, 2018, that "prospectively, where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each case." Walker , 185 A.3d at 971. The Court explained that "[t]he Official Note to [Pa.R.A.P.] 341 provides a bright-line mandatory instruction to practitioners to file separate notices of appeal." Id. at 976-77. Further, the Court announced that "the proper practice under [Pa.R.A.P.] 341(a) is to file separate appeals from an order that resolves issues arising on more than one docket." Id. at 977. "The failure to do so," the Supreme Court continued, "will result in quashal of the appeal." Id. (footnote omitted).

Subsequently, in Commonwealth v. Stansbury , 219 A.3d 157 (Pa.Super. 2019), this Court recognized that the failure to file separate notices of appeal may be excused where there is a breakdown in the operation of the trial court. Id. at 160. Specifically, this Court noted that "[w]e have many times declined to quash an appeal when the defect resulted from an appellant's acting in accordance with misinformation relayed to him by the trial court." Id.

In Stansbury , the PCRA court advised the appellant that he had thirty days " ‘to file a written notice of appeal to the Superior Court. Said notice of appeal must be filed with the Clerk of Courts....’ " Id. at 159 (quoting trial court order) (emphasis omitted). On appeal, this Court concluded the PCRA court's failure to advise the appellant of the need to file separate notices of appeal constituted "a breakdown in the court operations such that we may overlook" any Walker defect." Id. at 160. Therefore, this Court declined to quash Stansbury's appeal under Walker and addressed the substance of his appeal. Id. More recently, in Commonwealth v. Larkin , 235 A.3d 350, 353-54 (Pa.Super. 2020) (en banc ), this Court affirmed the practice set forth in Stansbury .

In the case sub judice , on April 24, 2020, Appellant filed a single notice of...