J-S42001-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHN GIBSON

Appellant No. 2101 MDA 2016

Appeal from the Judgment of Sentence May 26, 2016

In the Court of Common Pleas of Huntingdon County

Criminal Division at No(s): CP-31-CR-0000099-2015

BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED OCTOBER 20, 2017

Appellant, John Gibson, appeals, pro se, from his judgment of 

sentence entered May 26, 2016, as made final by the entry of a November 

16, 2016 order that denied his post-sentence motions by operation of law. 

We remand with instructions.

The record reveals the following facts. On March 4, 2016, Appellant 

pled guilty to driving under the influence—highest rate of alcohol1 (“DUIhighest rate”) and driving with blood alcohol concentration (“BAC”) of .02 or 

greater while license is suspended.2 On May 26, 2016, the trial court 

sentenced Appellant to 30 to 60 months’ imprisonment on the DUI-highest 

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1 75 Pa. C.S.A. § 3804(c).

2 75 Pa. C.S.A. § 1543(b)(1.1)(i).
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rate charge, together with a consecutive term of 90 days’ imprisonment for 

the license suspension charge. Appellant filed a timely post-sentence motion 

on June 2, 2016.3 On August 16, 2016, Appellant filed a supplemental 

post-sentence motion in the nature of a motion in arrest of judgment. In 

that motion, counsel alleged that the decision of the United States Supreme 

Court in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) cast doubt on 

Appellant’s DUI-highest rate conviction. Pursuant to Pa.R.Crim.P. 

720(B)(3)(b), counsel also requested a 30-day extension of time in which to 

decide Appellant’s post-sentence motions. The trial court granted the 

motion for extension of time on August 17, 2016 and, ultimately, Appellant’s 

post-sentence motions were denied by operation of law on October 31, 

2016. See Pa.R.Crim.P. 720(B)(3)(b). The clerk of courts, however, did not 

enter the order denying Appellant’s post-sentence motions until November 

16, 2016, at which time the clerk forwarded notice of the court’s denial of 

Appellant’s motions to trial counsel. 

On December 6, 2016, trial counsel filed a motion seeking leave to 

withdraw, appointment of new counsel for Appellant, and reinstatement of 

Appellant’s direct appellate rights.4 Trial counsel’s submission also included 

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3

In his counseled post-sentence motion, Appellant challenged the 

discretionary aspects of his sentence on grounds that the punishment was 

excessive.

4 Appellant’s time to file an appeal had not yet run on December 6, 2016. 

Further discussion of the timeliness issue follows infra.
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an application for leave to allow Appellant to proceed in forma pauperis. On 

December 14, 2016, Appellant filed a pro se motion (captioned as a motion 

for withdrawal of counsel) seeking the appointment of a new attorney and 

leave to proceed in forma pauperis.

5

 

Appellant filed a pro se notice of appeal dated December 15, 2016. 

The envelope attached to Appellant’s notice bore a post-mark indicating that 

prison officials and/or postal authorities received the mailing on December 

16, 2016. The clerk of courts docketed the notice of appeal on December 

19, 2016.6

On January 3, 2017, the trial court, pursuant to Pa.R.A.P. 1925(b), 

ordered Appellant’s counsel7to file a concise statement of errors complained 

of on appeal (“concise statement”) within 21 days. In response, both 

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5 Appellant’s motion cited Pa.R.Crim.P. 122 in support of his request for the 

appointment of new counsel. Appellant’s Motion, 12/14/16, at 1. In 

relevant part, the rule states: “a motion for change of counsel by a 

defendant to whom counsel has been assigned shall not be granted except 

for substantial reasons.” Pa.R.Crim.P. 122(C). Appellant’s reliance on Rule 

122 is misplaced since he employed the services of privately retained 

counsel, not appointed counsel, before the trial court. As we shall discuss, 

however, the significance of Appellant’s reference to Rule 122 is that he 

sought representation when he filed the December 14, 2016 motion and that 

he did not seek to proceed pro se at that time.

6 A handwritten notation at the bottom of Appellant’s notice of appeal 

indicates that the filing was forwarded to trial counsel and this Court on 

December 21, 2016.

7 The docket indicates that the court forwarded its order only to Appellant’s 

counsel.
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Appellant and trial counsel filed concise statements. Counsel filed his 

concise statement on January 23, 2017 and Appellant filed a separate 

concise statement docketed on January 27, 2017.8 The concise statements 

from Appellant and his counsel are dated January 23, 2017 and contain 

verifications that the information contained therein is true and correct. On 

February 6, 2017, the trial court issued an order allowing counsel to 

withdraw. In its Rule 1925(a) opinion filed on February 15, 2017, the trial 

court addressed the issues raised in Appellant’s pro se concise statement. 

Appellant submitted a pro se brief to this Court to aid our resolution of the 

issues he raises on appeal. 

Appellant presents three issues for our review.

I. Has the sentencing court abused it[s] discretion by 

imposing sentences beyond the guidelines?

II. Was Appel[l]ant[‘]s plea knowing, intelligent and 

voluntary?[]

III. Has the trial court erroneously determined, that the U.S. 

Supreme Court ruling decided at the time Appellant[‘]s 

post-sentence motions were pending was not applicable to 

his situation?[]

Appellant’s Brief at 4.

We are unable to reach the merits of Appellant’s claims, as this case 

presents a number of procedural concerns. First, questions exist as to the 

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8 A second copy of Appellant’s concise statement was docketed on February 

1, 2017.
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timeliness of this appeal. It is undisputed that we may examine the 

timeliness of an appeal on our own motion since the issue relates to our 

jurisdiction to undertake appellate review. See In re Adoption of W.R., 

823 A.2d 1013, 1015 (Pa. Super. 2003). Our rules of criminal procedure 

make clear that, where a defendant files a timely post-sentence motion, he 

has 30 days from the entry of the order denying the motion by operation of 

law in which to file his notice of appeal. Pa.R.Crim.P. 720(A)(2)(b). 

Here, Appellant’s timely post-sentence and supplemental postsentence motions were denied by operation of law on October 31, 2016. 

However, the clerk of courts failed to enter the order denying Appellant’s 

post-sentence motions until November 16, 2016, when the clerk mailed 

notice of the order to trial counsel. This failure constitutes a breakdown in 

the processes of the court. See Commonwealth v. Khalil, 806 A.2d 415, 

420 (Pa. Super. 2002). Therefore, Appellant had 30 days from the date the 

order was entered, i.e. November 16, 2016, in which to file a timely notice 

of appeal. Id.; Pa.R.Crim.P. 720 cmt. (“[w]hen a defendant files a timely 

post-sentence motion, the 30-day period for the defendant's direct appeal 

on all matters in that case ... is triggered by ... the denial of the motion by 

operation of law” and the appeal period runs from the date of entry of the 

order as established by Pa.R.A.P. 108); see Pa.R.A.P. 108(a)(1) (“in 

computing any period of time under these rules involving the date of entry 

of an order by a court or other government unit, the day of entry shall be 
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the day the clerk of the court or the office of the government unit mails or 

delivers copies of the order to the parties”); see also Pa.R.A.P. 903(a) 

(notice of appeal must be filed within 30 days after the entry of the order 

from which the appeal is taken). Therefore, Appellant needed to file his 

notice of appeal on or before December 16, 2016.

Appellant filed a pro se notice of appeal, which the clerk of courts 

docketed on December 19, 2016. On its face, the appeal appears to be 

untimely. As we stated above, however, Appellant dated the notice of 

appeal December 15, 2016 and the envelope attached to the notice bears a 

post-mark dated December 16, 2016.

At the time of filing, Appellant remained incarcerated. Under the 

prisoner mailbox rule, a notice of appeal filed by a prisoner acting pro se is 

considered filed on the date it is placed into the prison mail system. 

Commonwealth v. Jones, 700 A.2d 423, 425-426 (Pa. 1997). However, 

the prisoner mailbox rule generally applies only when a prisoner is 

unrepresented. Id. When Appellant filed his pro se notice of appeal, he still 

had counsel of record. Thus, while Appellant’s notice of appeal may have 

been timely under the prisoner mailbox rule, it is unclear whether that rule 

can properly be applied given that counsel remained attached to the case.

Our prior cases offer some insight as to whether and how the prisoner 

mailbox rule can properly be applied within the context of this case. It is 

well-settled that hybrid representation is heavily disfavored in this 
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Commonwealth. See Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 

2011). In fact, pro se filings submitted by counseled defendants are 

generally treated as legal nullities. Commonwealth v. Ali, 10 A.3d 282, 

293 (Pa. 2010), citing Commonwealth v. Ellis, 626 A.2d 1137, 1139, 1141 

(Pa. 1993). On the other hand, this Court also recognized that a counseled 

defendant may act on his own behalf in order to protect important rights 

where counsel remains technically attached to the case but is no longer 

serving his client’s interest. See Commonwealth v. Williams, 151 A.3d 

621, 624 (Pa. Super. 2016) (Superior Court required to docket pro se notice 

of appeal filed by counseled litigant); see also Commonwealth v. 

Leatherby, 116 A.3d 73, 78-79 (Pa. Super. 2015) (where defendant was 

effectively abandoned by counsel and trial court failed to timely appoint new 

counsel, pro se post-sentence motion tolled appeal period and did not offend 

considerations of hybrid representation).

We are constrained to remand this case under the circumstances 

before us. Before the expiration of the appeal period, on December 6, 2016 

and December 14, 2016, respectively, trial counsel and Appellant filed 

motions with the trial court seeking the discontinuation of counsel’s 

involvement in this case, the appointment of new counsel, and leave to allow 

Appellant to proceed in forma pauperis. These filings suggest that Appellant 

intended to challenge his convictions and sentence on direct appeal and that

he sought to do so with the assistance of new counsel. The submissions also 
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suggest that a breakdown in the relationship between counsel and Appellant 

was beginning to occur. The trial court, however, did not address the 

motions until February 6, 2017, nearly two months after they were filed, 

when it issued an order allowing counsel to withdraw but did not appoint 

counsel for purposes of appeal. On remand, the trial court shall determine 

whether counsel effectively abandoned Appellant following the denial of his 

post-sentence motions and, if so, whether Appellant filed a protective appeal 

that should be deemed timely under the prisoner mailbox rule. 

In addition to the timeliness issue, a separate matter to be considered 

and resolved on remand raises issues of great importance. “The right to 

counsel in a criminal proceeding is a fundamental right guaranteed by the 

Sixth Amendment of the United States Constitution and Article One, Section 

Nine of the Pennsylvania Constitution.” Commonwealth v. McDonough, 

812 A.2d 504, 506 (Pa. 2002), citing Faretta v. California, 422 U.S. 806 

(1975). An indigent defendant’s right to counsel extends to proceedings 

before the trial court and to any direct appeal filed as of right. Ross v. 

Moffitt, 417 U.S. 600, 610 (1974). “A trial judge has a duty to protect a 

defendant's constitutional right to counsel.” McDonough, 812 A.2d at 508; 

Commonwealth v. Davido, 868 A.2d 431, 437 (Pa. 2005). We have 

observed that the right to counsel can be waived only after a “penetrating 

and comprehensive” colloquy establishes that the defendant has knowingly, 

intelligently, and voluntarily relinquished his right to counsel. See
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Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (“When 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.”); see also Commonwealth v. 

Clyburn, 42 A.3d 296, 300-301 (Pa. Super. 2012).

As we stated above, both Appellant and trial counsel filed motions in 

early December 2016 seeking counsel’s detachment from this case, the 

appointment of new counsel, and permission for Appellant to proceed in 

forma pauperis. Despite this, the trial court did not address these motions 

for nearly two months, when it granted counsel leave to withdraw without 

considering whether Appellant was entitled to the appointment of 

replacement counsel. Moreover, there is no transcript of a waiver-of-counsel 

colloquy in the certified record and Appellant has proceeded before this 

Court through the submission of a pro se brief.9 Effectively, the trial court’s 

actions have deprived Appellant of his right to counsel on direct appeal 

without the probing inquiry required by law and despite strong indications 

that Appellant desired representation. On remand, in addition to factual 

findings regarding the timeliness of this appeal and the applicability of the 

prisoner mailbox rule, the trial court shall determine, on-the-record, whether 

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9

In addition, the trial court received concise statements from both trial 

counsel and Appellant, but elected to address only the issues raised in 

Appellant’s pro se filing.
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Appellant was entitled to the appointment of counsel and whether he 

knowingly and intelligently waived his right to an attorney. If Appellant is 

entitled to the appointment of counsel and he desires representation on 

appeal, then the trial court shall appoint counsel and direct the filing of a 

counseled concise statement and appellate brief. The trial court shall 

complete these inquiries within 45 days of the date on which our order is 

filed.

Case remanded. Jurisdiction retained.