Opinion
J-S88015-16 No. 1608 EDA 2016
01-27-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DARRYL RINGGOLD, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence of November 13, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003427-2014 BEFORE: OLSON, RANSOM AND STRASSBURGER, JJ. MEMORANDUM BY OLSON, J.:
Retired Senior Judge assigned to the Superior Court
Appellant, Darryl Ringgold, appeals from the judgment of sentence entered on November 13, 2015. We quash this appeal.
As our disposition is based upon the procedural posture of this case, we decline to outline the factual background of this case. On August 25, 2015, Appellant was convicted of possession of a firearm by a prohibited person, possession of a controlled substance, and possession of drug paraphernalia. On November 13, 2015, the trial court sentenced Appellant to an aggregate term of five to ten years' imprisonment.
On November 16, 2015, Appellant, while represented by counsel, filed a pro se post-sentence motion. A hearing on Appellant's motion was held on March 10, 2016. At that hearing, the trial court orally granted counsel's motion to withdraw and appointed the public defender's office to represent Appellant. The trial court later vacated the appointment of the public defender's office and appointed conflict counsel to represent Appellant. On May 17, 2016, conflict counsel filed an amended post-sentence motion which was denied on May 20, 2016. On May 31, 2016, Appellant filed a notice of appeal.
The motion was placed in the stream of prison mail on November 16, 2015; however, the Clerk of Courts of Montgomery County did not receive it until November 27, 2015.
On November 30, 2015, the Clerk of Courts of Montgomery County forwarded Appellant's pro se motion to his counsel as required by Pennsylvania Rule of Criminal Procedure 576(A)(4). Appellant's counsel took no action upon receipt of the motion.
Appellant presents one issue for our review:
Whether Appellant was denied his constitutional right to a jury trial on the [bifurcated] issue of whether he was a person not to possess a firearm when Appellant was only presented with the option to have the [trial court] sit as the factfinder for this issue or have the jury learn of his prior conviction prior to jury deliberations on the remaining charges[?]Appellant's Brief at 4 (complete capitalization omitted).
"Preliminarily, we address the timeliness of the instant appeal. Since it implicates our jurisdiction, we may raise the issue sua sponte." Commonwealth v. Duffy , 143 A.3d 940, 942 (Pa. Super. 2016) (citations omitted). As this Court has explained:
Ordinarily, when a post-sentence motion is filed, an appellant has [30] days from the denial of the post-sentence motion within which to file a notice of appeal. However, by the explicit terms of [Pennsylvania Rule of Criminal Procedure] 720(A)(2), the provision allowing [] 30 days from the denial of post-[sentence] motions is contingent upon the timely filing of a post-[sentence] motion. In order for the denial of post-sentence motions to become the triggering event, it is necessary that the post-sentence motions be timely filed. Absent a timely filed post-sentence motion, the triggering event remains the date sentence is imposed.Commonwealth v. Millisock , 873 A.2d 748, 750 (Pa. Super. 2005) (internal alterations, ellipsis, quotation marks, paragraph break, and citation omitted; emphasis removed).
In this case, Appellant's pro se post-sentence motion was a legal nullity. See Commonwealth v. Reid , 117 A.3d 777, 781 n.8 (Pa. Super. 2015) (pro se post-sentence motion while represented by counsel is a legal nullity). Thus, Appellant did not file an effective post-sentence motion until May 17, 2016, more than six months after his judgment of sentence was pronounced. As Appellant's post-sentence motion was untimely, Appellant was required to file his notice of appeal within 30 days of the pronouncement of his judgment of sentence. As Appellant's notice of appeal was filed on May 31, 2016, it was patently untimely. Accordingly, we lack jurisdiction over this appeal.
Unlike Commonwealth v. Leatherby , 116 A.3d 73, 78 (Pa. Super. 2015), the trial court in this case explicitly told Appellant at the conclusion of his sentencing hearing that he needed to inform the trial court if he wished to proceed pro se or have new counsel appointed to represent him for purposes of filing a post-sentence motion or notice of appeal. N.T., 11/13/15, at 20-21. Appellant failed to notify the trial court of this wish until the March 10, 2016 hearing. See N.T., 3/10/16, at 4. Thus, there was no breakdown in the judicial system which warrants disregarding the general rule against hybrid representation.
Appeal quashed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/27/2017