J.S04041/14 

NON-PRECEDENTIAL DEC ISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

 : PENNSYLVANIA 

Appellee : 

: 

 v. : 

 : 

 : 

MARTIN LUTHER DERR, : 

 : 

 Appellant : No. 1686 EDA 2013 

Appeal from the Judgment of Sentence March 22, 2013 

In the Court of Common Pleas of Northampton County 

Criminal Division No(s).: CP-48-CR-0000658-2011 

BEFORE: BENDER, P.J., SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 16, 2014 

Appellant, Martin Luther Derr, appeals from the judgment of sentence1

entered in the Northampton County Court of Common Pleas following the 

revocation of his parole.2 Appellant argues: (1) his notice of appeal was 

 

*

 Former Justice specially assigned to the Superior Court. 

1

 Appellant purported to appeal from the May 9, 2013 order denying his 

motion for reconsideration of sentence. However, the appeal lies properly 

from the judgment of sentence imposed on March 22 2013, and we have 

amended the caption accordingly. 

2

“When an offender is sentenced to a maximum term of imprisonment of 

less than two years, the common pleas court retains the authority to grant 

and revoke parole; when the maximum term is two years or more, authority 

to grant or revoke parole is vested in the Parole Board.” Commonwealth 

v. Hanson, 856 A.2d 1254, 1258 (Pa. Super. 2004). 
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timely filed; (2) the trial court failed to state on the record reasons for 

revoking his parole and imposing its sentence; (3) his Gagnon II3

 hearing 

was not speedily held; (4) the trial court denied his right to counsel for a 

post-sentence motion; and (5) he was not provided written notice of his 

alleged parole violations. We hold the notice of appeal was timely filed, but 

vacate the order denying Appellant’s pro se post-sentence motion and 

remand for counsel to file a new post-sentence motion on Appellant’s behalf.

We first consider the trial court’s suggestion that Appellant’s notice of 

appeal was untimely. See Trial Ct. Op., 6/27/13, at 1-3.4 “[T]he timeliness 

of an appeal implicates our jurisdiction[.]” Commonwealth v. Trinidad, 

90 A.3d 721, 724 (Pa. Super. 2014) (citations omitted). A notice of appeal 

shall be filed within thirty days of the order from which the appeal is taken. 

Pa.R.A.P. 903(a). Because the underlying sentence was imposed after 

revocation of parole, the post-sentence proceedings are governed by 

Pennsylvania Rule of Criminal Procedure 708.5 Subsection (E) provides: “A 

 

3

“A Gagnon I hearing is a pre-revocation hearing to determine if probable 

cause exists that a violation was committed. After this determination is 

made, a Gagnon II hearing is conducted where the Commonwealth is 

required to establish that the defendant did violate his parole/probation.” 

Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa. Super. 2011); see 

Gagnon v. Scarpelli, 411 U.S. 778 (1973). 

4

 The three-page opinion addresses only the timeliness of Appellant’s notice 

of appeal. 

5 See also Pa.R.Crim.P. 708, cmt (“Rules 704, 720, and 721 do not apply to 

revocation cases.”).
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motion to modify a sentence imposed after a revocation shall be filed within 

10 days of the date of imposition. The filing of a motion to modify sentence 

will not toll the 30-day appeal period.” Pa.R.Crim.P. 708(E) (emphasis 

added); see also Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. 

Super. 2001). However, this Court has declined to quash an appeal where a 

“problem arose as a result of the trial court’s misstatement of the appeal 

period, which operated as a breakdown in the court’s operation.” 

Coolbaugh, 770 A.2d at 791. In Coolbaugh, the “breakdown” was the trial 

court’s erroneous advice to the defendant at sentencing that he would have 

thirty days from the denial of his post-sentence motion to appeal to the 

Superior Court. Id. at 790-91.

Furthermore, we note that when a criminal defendant is represented 

by counsel, “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.” Commonwealth v. Jette, 23 A.3d 

1032, 1044 (Pa. 2011) (reiterating there is no right to hybrid 

representation); see also Pa.R.Crim.P. 576(A)(4) (stating that when 

criminal defendant, who is represented by attorney, submits motion for filing 

that has not been signed by attorney, clerk of court shall accept it for filing 

and forward copy to counsel). 

In the case sub judice, current appellate counsel, Brian M. Monahan, 

Esq. of the Public Defender’s Office, entered his appearance for Appellant in 
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the underlying criminal case. Appellant was then represented at the March 

22, 2013 revocation hearing by Robert Patterson, Esq.6

 At that proceeding, 

the trial court revoked Appellant’s parole and imposed a new sentence.

There is no indication in the record that either Attorney Patterson or 

Attorney Monahan requested, or was granted, leave to withdraw. 

Nevertheless, Appellant then filed a pro se post-sentence motion on April 

1st. Pursuant to the Rules we set forth above, Appellant’s notice of appeal 

would generally have been due Monday, April 22nd,7 and the post-sentence 

motion would not have tolled this deadline. See Pa.R.A.P. 903(a); 

Pa.R.Crim.P. 708(E); Coolbaugh, 770 A.2d at 791. The court issued an 

order denying the motion on May 9th—which fell after the April 22nd appeal 

deadline. Appellant then filed a notice of appeal through Attorney Monahan 

on June 5th. The notice of appeal is thus facially untimely under Rule of 

Appellate Procedure 903(a) and Rule of Criminal Procedure 708(E). 

In its opinion, the trial court maintains that following sentencing, 

 

6

 In a pro se letter written from Appellant to the trial court, dated the day 

after the court revoked his parole, Appellant stated that he was represented 

at the Gagnon II hearing by “a different Public defender than the one [he] 

had” when he was originally sentenced on the underlying possession offense. 

Appellant’s Ltr., 4/1/13, at 3. However, the certified record provides no 

additional information as to whether Attorney Patterson was also from the 

Public Defender’s office.

7

 The thirtieth day after sentencing fell on Sunday, April 21, 2013. Appellant 

thus had until the following day to file a notice of appeal. See 1 Pa.C.S. § 

1908. 
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Appellant signed a form entitled “Important Post-Gagnon II Hearing 

Rights,” which correctly set forth, inter alia, the time periods for filing a 

post-sentence motion and appeal, and the rule that a post-sentence motion 

would not toll the thirty-day period for filing an appeal. Trial Ct. Op. at 3 

n.1. Our review of the form confirms the same. 

Appellant argues on appeal, however, there was a breakdown in the 

court’s operation. Specifically, he cites the court’s May 9, 2013 order 

denying his pro se post-sentence motion, which erroneously stated that he 

had thirty days from the date of that order to file an appeal. See Order, 

5/9/13, at 1. The Commonwealth responds that Appellant was provided the 

correct information at the time of sentencing, and the court’s subsequent 

misstatement “did not occur until the 30-day period had long expired.” 

Commonwealth’s Brief at 5.

We further note that the certified record does not indicate whether the 

court forwarded Appellant’s pro se motion to either Attorney Patterson or 

Attorney Monahan. See Jette, 23 A.3d at 1044. Instead, it is clear that 

court ruled on the motion. See Jette, 23 A.3d at 1044. There is likewise no 

indication in the record or trial docket of whether the order was provided to 

either Attorney Monahan or Attorney Patterson. 

In light of the trial court’s apparent failure to forward the pro se

motion to counsel and its ruling on the pro se motion, and despite the postGagnon II hearing form’s correct advice as to the time requirements for 
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filing an appeal, we agree with Appellant that there was a breakdown in 

court operations necessitating excusal of his otherwise untimely notice of 

appeal. See Coolbaugh, 770 A.2d at 790-91. We thus hold this Court has 

jurisdiction over this appeal. See Trinidad, 90 A.3d at 724. 

As stated above, the trial court’s opinion discusses only the timeliness 

of Appellant’s notice of appeal. We could remand for the court to file an 

amended Pa.R.A.P. 1925(a) opinion addressing his claims. However, we 

again note the court’s error in ruling on Appellant’s pro se post-sentence 

motion—an issue Appellant’s counsel has not broached. See Pa.R.Crim.P. 

708(E); Coolbaugh, 770 A.2d at 791; see also Pa.R.Crim.P. 122(B)(2) 

(“When counsel has been appointed . . . the appointment shall be effective 

until final judgment, including any proceedings upon direct appeal.”). We 

also cannot determine whether Attorney Monahan has crafted the appellate 

brief with any assumptions that certain issues may have been waived by the 

failure to raise them in the post-sentence motion. 

Furthermore, we note some deficiencies in the record that could 

hamper our review. For example, in arguing he was not provided written 

notice of the alleged parole violations, Appellant avers that neither the 

record nor docket indicate that the petition to revoke was served on him. 

Our review of the record confirms there is no certificate of service or 
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notation in the docket of service on anyone.8

 There is also no transcript of 

the Gagnon I hearing, the contents of which may or may not be 

informative. In addition, one contested issue at the Gagnon II hearing was 

whether Appellant completed drug treatment or provided proof of such 

completion. The probation officer, while testifying that Appellant did not 

provide proof of completion, also stated Appellant attempted to re-enroll in 

drug treatment but “they [sic] sent him back [because h]e didn’t have 

enough time left on his supervision.” N.T. at 5-6. There is no further 

discussion or elaboration. See id. at 6. 

In light of all the foregoing, and with caution to err in protecting 

Appellant’s rights over promoting judicial economy in this particular case, we 

vacate the order denying Appellant’s pro se post sentence motion and 

remand for counsel to file a post-sentence motion on Appellant’s behalf. In 

considering the new motion, the court may conduct any proceedings it 

deems appropriate. Because the court will rule afresh on any issues raised 

in the counseled motion, we do not consider any of Appellant’s substantive 

issues in this appeal.9

 

8 See Pa.R.Crim.P. 576(B)(1) (“All written motions . . .shall be served upon 

each party . . . concurrently with filing.”), 576(B)(4)(a) (“All documents that 

are filed and served . . . shall include a certificate of service.”).

9

 We emphasize that this memorandum, including our statements above 

concerning service of the petition to revoke and Appellant’s attempts to reenroll in treatment, is not to be construed as endorsement of any claim. 

Instead, it is for the trial court to consider any claim presented, with the 
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Order denying post-sentence relief vacated. Case remanded for 

proceedings consistent with this memorandum. Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/16/2014 

 

benefit of the parties’ arguments and first-hand knowledge of the 

proceedings.