J-S47007-16

2016 PA Super 262

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HENRY L. WILLIAMS,

Appellant No. 2078 MDA 2015

Appeal from the Judgment of Sentence October 16, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0001747-2010

BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.

OPINION BY SHOGAN, J.: FILED NOVEMBER 23, 2016

Appellant, Henry L. Williams, appeals from the judgment of sentence 

entered on October 16, 2015. For the reasons that follow, we affirm.1

On April 19, 2011, Appellant was found guilty by a jury of corrupt 

organizations, criminal conspiracy, criminal use of a communication facility, 

and four counts of possession with intent to deliver a controlled substance. 

On August 4, 2011, Appellant was sentenced to an aggregate term of eleven 

to twenty-two years of incarceration. The sentence included mandatory 

minimum sentences based on the weight of the controlled substances 

pursuant to 18 Pa.C.S. § 7508. Appellant filed a direct appeal to this Court, 

 

1 This appeal was quashed on August 1, 2016, because Appellant’s 

counseled notice of appeal was untimely, and Appellant’s pro se notice of 

appeal, while timely, was initially considered a nullity as hybrid 

representation. Reconsideration was granted on September 28, 2016, to 

allow this Court to address the effect of Appellant’s pro se notice of appeal. 
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and we affirmed the judgment of sentence on May 8, 2013. 

Commonwealth v. Williams, 1399 MDA 2011, 81 A.3d 993 (Pa. Super. 

filed May 8, 2013), appeal denied, 80 A.3d 777 (Pa. filed November 19, 

2013).

While Appellant’s direct appeal was pending, the United States 

Supreme Court decided Alleyne v. United States, 133 S.Ct. 2151 (2013). 

In Alleyne, the Supreme Court held, “Any fact that, by law, increases the 

penalty for a crime is an ‘element’ that must be submitted to the jury and 

found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2155. In applying 

Alleyne, this Court has held that, generally, Pennsylvania’s mandatory 

minimum sentencing statutes are unconstitutional because the mandatory 

sentencing statutes “permit[] the trial court, as opposed to the jury, to 

increase a defendant’s minimum sentence based upon a preponderance of 

the evidence” standard. Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. 

Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015); and see 

Commonwealth v. Vargas, 108 A.3d 858, 876-877 (Pa. Super. 2014) (en 

banc) (holding 18 Pa.C.S. § 7508 unconstitutional under Alleyne), appeal 

denied, 121 A.3d 496 (Pa. 2015). Additionally, this Court has concluded 

that if a defendant’s case was pending on direct appeal when Alleyne was 

decided, that defendant was entitled to retroactive application of the holding 

from Alleyne. Newman, 99 A.3d at 90. 
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Appellant filed a timely petition for collateral relief pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. In light of 

Alleyne and the Pennsylvania cases interpreting that decision, the PCRA 

court granted Appellant’s PCRA petition, vacated his judgment of sentence, 

and directed Appellant to be resentenced. PCRA Order, 9/16/15. On 

October 16, 2015, the trial court resentenced Appellant.

Following resentencing, Appellant filed a timely counseled postsentence motion on October 26, 2015. The trial court denied the motion in 

an order that was filed on October 29, 2015. Appellant had until November 

28, 2015, thirty days from October 29, 2015, in which to file a timely 

appeal. Pa.R.A.P. 903; Pa.R.Crim.P. Rule 720(A)(2)(a). However, because 

November 28, 2015 fell on a Saturday, Appellant had until Monday, 

November 30, 2015, to file his notice of appeal. 1 Pa.C.S. § 1908.

The docket reflects that Appellant filed a pro se notice of appeal on 

November 19, 2015. Because Appellant was represented by counsel, the 

notice of appeal was docketed in the trial court and forwarded to counsel on 

November 25, 2015 pursuant to Pa.R.Crim.P. 576(A)(4). The pro se notice 

of appeal was not forwarded to this Court. Appellant’s counsel subsequently 

filed an untimely notice of appeal on December 1, 2015.

In this Commonwealth, hybrid representation is not permitted. See 

Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011) (concluding that 

a petitioner’s pro se motion for remand when that petitioner is represented 
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by counsel is impermissible as hybrid representation). Accordingly, this 

Court will not accept a pro se motion while an appellant is represented by 

counsel; indeed, pro se motions have no legal effect and, therefore, are legal 

nullities. See Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 

2007) (discussing a pro se post-sentence motion filed by a petitioner who 

had counsel). When a counseled defendant files a pro se document, it is 

noted on the docket and forwarded to counsel pursuant to Pa.R.Crim.P. 

576(A)(4), but no further action is to be taken. Moreover, a pro se filing has 

no tolling effect. See Pa.R.Crim.P. 576 cmt. (“The requirement that the 

clerk time stamp and make docket entries of the filings in these cases only 

serves to provide a record of the filing, and does not trigger any deadline 

nor require any response.”). 

We point out, however, that Superior Court Internal Operating 

Procedure (“I.O.P.”) 65.24 addresses hybrid representation in the context of 

a notice of appeal as follows:

Where a litigant is represented by an attorney before the 

Court and the litigant submits for filing a petition, motion, brief 

or other type of pleading in the matter, it shall not be accepted 

for filing, but noted on the docket and forwarded to counsel of 

record.

Exceptions:

1. A pro se notice of appeal received from the trial 

court shall be docketed, even in instances where 

the pro se [appellant] was represented by 

counsel in the trial court.
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2. A motion by the pro se for appointment of new 

counsel, for reasons such as abandonment by 

counsel, or to proceed pro se shall be docketed and 

referred to Central Legal Staff, or the merits panel if 

constituted, for review and further action by the 

Court.

3. A pro se brief or writing filed in response to 

counsel’s petition to withdraw from representation.

210 Pa. Code § 65.24 (emphasis added). Thus, we must address the 

difference between pro se filings, generally, that are “noted on the docket” 

under Pa.R.Crim.P. 576(A)(4), as opposed to a notice of appeal being 

“docketed” under I.O.P. 65.24. 

In Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993), the Supreme 

Court addressed issues created where a criminal defendant is represented by 

counsel, yet files a pro se appellate brief. The Court noted that while there 

is no right to hybrid representation, there is right of appeal pursuant to 

Article 5, § 9 of the Pennsylvania Constitution. Ellis, 626 A.2d at 1138. The 

Ellis Court distinguished between overburdening appellate courts with pro se

briefs and allowing for the protection of one’s constitutional right to an 

appeal. Id. at 1141.2 

Because a notice of appeal protects a constitutional right, it is 

distinguishable from other filings that require counsel to provide legal 

 

2 Cf. Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011) (discussing a 

procedural “quagmire” and holding that a pro se notice of appeal that was 

filed before a counseled post-sentence motion and a subsequent counseled 

notice of appeal should have been considered timely where the Superior 

Court administratively quashed the counseled appeal).
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knowledge and strategy in creating a motion, petition, or brief.3 We thus 

hold that this Court is required to docket a pro se notice of appeal despite 

Appellant being represented by counsel, based on the rationale in Ellis and 

I.O.P. 65.24. Additionally, in the case at bar, Appellant’s pro se notice of 

appeal was docketed in the trial court but not forwarded to this Court 

pursuant to Pa.R.A.P. 902 (note).4 We deem this a breakdown in the 

operation of the courts.5 Therefore, we shall accept this appeal as timely. 

On appeal, Appellant raises the following issues for this Court’s 

consideration:

1. Did sufficient evidence exist for the jury to find [Appellant] 

guilty of criminal conspiracy to deliver a controlled substance, or 

any counts of possession with the intent to deliver a controlled 

substance, where no drugs or physical evidence was presented 

at trial?

 

3 As noted by Justice Todd in her dissent in Cooper, the pro se filing of a 

notice of appeal where a defendant is represented by counsel is without 

question hybrid representation, and difficulties will arise; e.g., where a pro 

se appeal divests the trial court of jurisdiction under Pa.R.A.P. 1701 before a 

counseled post-sentence motion is filed. Cooper, 27 A.3d at 1009 (Todd, J., 

dissenting). However, this concern appears to have been addressed by the 

Majority in Cooper wherein such an appeal was labeled “merely premature” 

when the trial court addressed the post-sentence motion. Cooper, 27 A.3d 

at 1007.

4 The notice of appeal that was forwarded to this Court and docketed was 

the counseled notice of appeal filed on December 1, 2015.

5 See Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa. Super. 2015) 

(“[An appellant] should not be precluded from appellate review based on 

what was, in effect, an administrative breakdown on the part of the trial 

court.”).
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2. Did the court err by using “enhanced” sentencing guidelines, 

thereby elevating the offense gravity scores of the crimes due to 

the alleged weight of the controlled substances involved, without 

making any finding on the record at either the sentencing 

hearing or the resentencing hearing as to the weights of the 

controlled substances and relying on the weights of the 

controlled substances determined by the jury at the time of the 

trial?

Appellant’s Brief at 4.

In his first issue, Appellant presents a challenge to the sufficiency of 

the evidence underlying his 2011 convictions in this matter. Before we 

proceed further, we address the Commonwealth’s argument that Appellant’s 

issue is not properly before us. Commonwealth’s Brief at 13. In support of 

its argument, the Commonwealth cites to this Court’s decision in 

Commonwealth v. Anderson, 801 A.2d 1264 (Pa. Super. 2002).

In Anderson, we addressed the limited issues an appellant could raise 

in a second direct appeal where the appellant already had the benefit of a 

direct appeal and was later resentenced:

As noted supra, however, appellant has already had the benefit 

of a direct appeal, and at that time did not challenge his 

conviction on any basis, including counsel’s ineffectiveness. 

Rather, the only issues he raised concerned the 

unconstitutionality of his sentence. Having succeeded on these 

issues and having been re-sentenced following remand, 

appellant could not file another direct appeal attacking his

conviction: the only issues reviewable in a direct appeal would 

be challenges to the sentence imposed following remand.

Anderson, 801 A.2d at 1266. We agree with the Commonwealth.

As stated previously, Appellant has already litigated a direct appeal 

challenging his convictions and judgment of sentence. In that appeal, 
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Appellant raised one issue challenging the trial court’s ruling that allowed an 

FBI agent to testify in his capacity as both an expert and a lay witness. 

Pa.R.A.P. 1925(b) Statement, 8/24/11. This Court affirmed Appellant’s 

judgment of sentence in a Judgment Order filed on May 8, 2013.

Because Appellant had the benefit of a direct appeal, he is barred from 

raising any issues other than a challenge to the sentence imposed on 

remand. Anderson, 801 A.2d at 1266. Accordingly, Appellant’s first issue 

wherein he challenges the sufficiency of the evidence is waived for 

Appellant’s failure to raise it in his first direct appeal.

In his second issue, Appellant alleges that the trial court abused its 

discretion in applying an elevated offense gravity score (“OGS”) that was 

based on the weight of the controlled substances. A claim that the 

sentencing court used an incorrect OGS is a challenge to the discretionary 

aspects of one’s sentence. Commonwealth v. Lamonda, 52 A.3d 365, 

370-371 (Pa. Super. 2012).

It is well settled that a challenge to the discretionary aspects of a 

sentence is a petition for permission to appeal, as the right to pursue such a 

claim is not absolute. Commonwealth v. Treadway, 104 A.3d 597, 599 

(Pa. Super. 2014). Before this Court may review the merits of a challenge 

to the discretionary aspects of a sentence, we must engage in the following 

four-pronged analysis: 

[W]e conduct a four part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 
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and 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, 

see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial 

question that the sentence appealed from is not appropriate 

under the Sentencing Code, 42 Pa.C.S. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)). 

As discussed above, we have determined that Appellant filed a timely 

appeal. Appellant also properly included a statement pursuant to 

Pa.R.A.P. 2119(f) in his brief. However, we are constrained to agree with 

the positions taken by both the trial court and the Commonwealth that 

Appellant failed to preserve this challenge to the OGS at the time of 

sentencing or in a post-sentence motion. Trial Court Opinion, 1/29/16, at 

14-16; Commonwealth’s Brief at 20. A review of the record reveals that 

while Appellant did file a timely post-sentence motion, he never mentioned 

the OGS. Appellant only argued that his aggregate sentence was excessive 

due to the individual sentences being ordered to run consecutively as 

opposed to concurrently. Post-Sentence Motion, 10/26/15. Because the 

OGS was not raised in any manner, we conclude Appellant has waived this 

challenge to the discretionary aspects of his sentence. Moury, 992 A.2d at 

170.
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For the reasons set forth above, we conclude that Appellant is entitled 

to no relief. Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016