J-S51001-16

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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KENNETH JOHN SHAFFER

Appellant No. 2682 EDA 2015

Appeal from the Judgment of Sentence July 7, 2015

In the Court of Common Pleas of Wayne County

Criminal Division at No(s): CP-64-CR-0000042-2006

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 03, 2016

Appellant, Kenneth John Shaffer, appeals from the judgment of 

sentence entered in the Wayne County Court of Common Pleas, following his 

guilty plea to rape of a child, involuntary deviate sexual intercourse (“IDSI”), 

statutory sexual assault, aggravated indecent assault, indecent exposure, 

and corruption of minors.1 We remand with instructions. 

This Court previously set forth most of the relevant facts and 

procedural history of this case as follows:

On May 12, 2006, [Appellant] pled guilty to two counts 

each of aggravated indecent assault and corruption of a 

minor, and one count each of rape of a child, [IDSI], 

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1 18 Pa.C.S.A. §§ 3121(c), 3123(a)(7), 3122.1, 3125(a)(7), 3125(a)(8), 

3127(a), 6301(a)(1), respectively. 
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statutory sexual assault and [indecent exposure]. On 

September 11, 2006, the trial court sentenced [Appellant] 

to an aggregate sentence of 16 years and 6 months to 45 

years in prison. [Appellant] filed a Motion for 

reconsideration of sentence, which the trial court denied. 

Thereafter, the Commonwealth filed a Petition to Amend 

Sentence, averring that there was an error in the 

sentencing computation, but that the total sentence 

imposed was appropriate. On December 14, 2012, the 

trial court entered an Order which clarified that 

[Appellant’s] total sentence is 15 years and 6 months to 

45 years in prison. Subsequently, on February 28, 2013, 

the trial court entered another Order that amended the 

December 14, 2012 sentencing Order to read that 

[Appellant’s] total sentence is 16 years and 6 months to 

45 years in prison.

On July [19], 2013, [Appellant], pro se, filed [a Post 

Conviction Relief Act (“PCRA”)2] Petition. The PCRA court 

appointed Attorney Collins as counsel. Attorney Collins 

filed an amended PCRA Petition on [Appellant’s] behalf 

alleging improper sentencing on the rape of a child count. 

The PCRA court and the Commonwealth agreed that a 

sentencing error was made in relation to the rape of a child 

count. Accordingly, the PCRA court vacated the sentence 

imposed on that count only. On [March 4], 2014, following 

a hearing, the PCRA court resentenced [Appellant] solely 

on the rape of a child count to 66 months to 20 years in 

prison. Based on this resentencing, [Appellant’s] new total 

aggregate sentence was 16 to 45 years in prison. 

[Appellant] filed a Motion for reconsideration of sentence, 

which the PCRA court denied on March [12], 2014. 

Commonwealth v. Shaffer, No. 1085 EDA 2014, unpublished 

memorandum at 1-3 (Pa.Super. filed November 26, 2014) (footnotes 

omitted). 

On November 26, 2014, this Court vacated Appellant’s judgment of 

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2 42 Pa.C.S.A. §§ 9541-9546.
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sentence in its entirety and remanded for resentencing on all counts.3 The 

trial court resentenced Appellant on July 7, 2015, to consecutive terms of 

incarceration of five-and-one-half (51⁄2) to twenty (20) years for rape of a 

child, five (5) to ten (10) years for IDSI, one (1) to five (5) years for 

statutory sexual assault, two-and-one-half (21⁄2) to five (5) years for 

aggravated indecent assault (victim less than 13 years of age), and two (2) 

to five (5) years for aggravated indecent assault (victim less than 16 years 

of age). The court also imposed concurrent terms of incarceration of three 

(3) months to two (2) years for indecent exposure, and six (6) months to 

two (2) years for each count of corruption of minors. Thus, Appellant’s 

aggregate sentence was sixteen (16) to forty-five (45) years’ incarceration. 

Immediately following resentencing, Attorney Collins withdrew and the 

court appointed new counsel “for purposes of [Appellant’s] appeal only.” 

(See Order, filed July 7, 2015). On July 15, 2015, Appellant filed a pro se

post-sentence motion, which the court denied on August 3, 2015, without 

notice to counsel of record. Appellant filed a counseled notice of appeal on 

September 1, 2015. The court ordered Appellant to file a concise statement 

of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), with 

notice to counsel of record. Appellant filed a pro se Rule 1925(b) statement 

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3 This Court explained: “[W]e cannot determine from our review of the 

record whether the declared invalidity of the sentence on the rape of a child 

count would have affected the trial court’s sentencing on the remaining 

counts[.]” Id. at 3. 
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on October 9, 2015. The court issued its Rule 1925(a) opinion on October 

23, 2015, in response to Appellant’s pro se Rule 1925(b) statement. 

Counsel filed an amended Rule 1925(b) statement on November 30, 2015. 

Appellant raises the following issues for our review:

WHETHER [APPELLANT] WAS DENIED A FAIR SENTENCING 

HEARING BY THE COURT’S REFUSAL TO APPOINT AN 

EXPERT AND HOLD A HEARING ON [APPELLANT’S] SVP 

STATUS WHICH RESULTED IN A LINGERING FAILURE OF 

STRUCTURAL DUE PROCESS IN THIS SENTENCING 

PROCEEDING.

WHETHER THE SENTENCE IMPOSED ON [APPELLANT] WAS 

AN ILLEGAL SENTENCE BY VIRTUE OF THE SENTENCING 

COURT’S IMPOSITION OF A MECHANICAL SENTENCE, 

RATHER THAN AN INDIVIDUALIZED SENTENCE, MERELY 

DESIGNED TO REIMPOSE A PREVIOUSLY IMPOSED 

SENTENCE RATHER THAN AS A PRODUCT OF A CAREFUL 

WEIGHING OF THE SENTENCING FACTORS IN 42 

PA.C.S.A. § 9721, IN VIOLATION OF THE FUNDAMENTAL 

NORMS OF THE SENTENCING PROCESS.

WHETHER THE SENTENCE IMPOSED ON [APPELLANT] WAS 

ILLEGAL BY VIRTUE OF THE FACT THAT IT VIOLATED DUE 

PROCESS AND EQUAL PROTECTION AS THE RECORD 

SUPPORTS A PRESUMPTION THAT THE SENTENCE 

IMPOSED HEREIN SERVED TO VINDICATE A PRIOR 

SENTENCE IMPOSED BY THE COURT AND WAS NOT AN 

INDIVIDUALIZED SENTENCE IMPOSED THROUGH REVIEW 

AND CONSIDERATION OF THE SENTENCING FACTORS 

UNDER 42 PA.C.S.A. § 9721.

(Appellant’s Brief at 4). 

As a preliminary matter, “When counsel is appointed, ...the 

appointment shall be effective until final judgment, including any 

proceedings upon direct appeal.” Pa.R.Crim.P. 122(B)(2). See also 

Commonwealth v. Corley, 31 A.3d 293 (Pa.Super. 2011) (stating 
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defendant’s Sixth Amendment right to counsel extends through postsentence and direct appeal stages). Further, a defendant has no 

constitutional right to self-representation together with counseled 

representation (“hybrid representation”) at the trial level or on appeal. 

Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993). “An 

accused’s pro se actions have no legal effect while defense counsel remains 

authorized to represent the accused in all aspects of the proceedings.” 

Commonwealth v. Hall, 476 A.2d 7, 9-10 (Pa.Super. 1984). Pennsylvania 

Rule of Criminal Procedure 576 states in relevant part:

Rule 576. Filing and Service by Parties

(A) Filing

* * *

(4) In any case in which a defendant is represented by 

an attorney, if the defendant submits for filing a written 

motion, notice, or document that has not been signed by 

the defendant’s attorney, the clerk of courts shall accept it 

for filing, time stamp it with the date of receipt and make a 

docket entry reflecting the date of receipt, and place the 

document in the criminal case file. A copy of the time 

stamped document shall be forwarded to the 

defendant’s attorney and the attorney for the 

Commonwealth within 10 days of receipt.

Pa.R.Crim.P. 576(A)(4) (emphasis added). 

Instantly, on July 24, 2013, the court appointed Attorney Collins to 

represent Appellant in PCRA proceedings. That appointment remained 

effective through Appellant’s resentencing on March 4, 2014, Appellant’s 

direct appeal from the judgment of sentence entered on that date, and 
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Appellant’s most recent resentencing on July 7, 2015. Immediately following 

imposition of Appellant’s current sentence, the court granted Attorney 

Collins’ request to withdraw. The court simultaneously appointed new 

counsel, Joseph McGraw, Esq., but stated the appointment was for purposes 

of Appellant’s appeal only. Attorney McGraw did not file any post-sentence 

motions on Appellant’s behalf. Appellant, however, filed a pro se motion for 

reconsideration of sentence within ten days of imposition of sentence. 

Appellant at no point waived his right to counsel for any stage of the 

proceedings. Therefore, by the terms of the court’s order, Appellant was 

effectively denied his right to counsel during the entire ten-day window he 

had to file a timely post-sentence motion. Assuming the court’s 

appointment of Attorney McGraw was effective immediately, Appellant’s pro 

se motion for reconsideration of sentence would have constituted prohibited 

hybrid representation, requiring the clerk of courts to forward the filing to 

counsel of record. See Pa.R.Crim.P. 576(A)(4); Hall, supra. Nevertheless, 

the court ruled on Appellant’s pro se motion for reconsideration of sentence, 

and the certified record contains no indication that the clerk of courts ever 

forwarded the motion to Attorney McGraw, pursuant to Rule 576. 

Additionally, Attorney McGraw filed a notice of appeal on September 1, 

2015. The court issued a Rule 1925(b) order on September 14, 2015, with 

notice to counsel of record. While still represented by counsel, Appellant 

filed a pro se Rule 1925(b) statement on October 9, 2015. The certified 

record does not indicate that the clerk of courts ever forwarded Appellant’s 
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pro se Rule 1925(b) statement to Attorney McGraw. The court issued its 

Rule 1925(a) opinion on October 23, 2015, in response to the issues in 

Appellant’s pro se Rule 1925(b) statement. Attorney McGraw subsequently 

filed an “amended” Rule 1925(b) statement on November 30, 2015, well 

beyond the twenty-one day deadline and apparently without leave of court. 

See Pa.R.A.P. 1925(b)(2). These procedural irregularities implicate 

Appellant’s fundamental right to counsel and constitute a breakdown in the 

court’s operation, which resulted in Appellant’s waiver of any discretionary 

aspects of sentencing claims he now raises on appeal. Moreover, the trial 

court had no opportunity to address those claims. Under these 

circumstances, we conclude the best resolution of this matter is to restore 

Appellant to the position he would have occupied, absent these procedural 

irregularities. Thus, we remand the case to the trial court for further 

proceedings. Within ten (10) days of the filing date of this decision, counsel 

shall confer with Appellant and file a post-sentence motion nunc pro tunc

raising any appropriate sentencing claims Appellant wishes to pursue, after 

which Appellant can file a nunc pro tunc appeal in due course.4 Accordingly, 

we remand with instructions. 

Case remanded with instructions. Jurisdiction is relinquished. 

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4 The trial court imposed Appellant’s current sentence following remand from 

this Court, which directed the trial court to resentence Appellant on all 

counts. Therefore, Appellant can raise issues related to and within the scope 

of this Court’s previous remand (sentencing only). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/3/2016