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Commonwealth v. Cogley

Superior Court of Pennsylvania

February 3, 2014

COMMONWEALTH OF PENNSYLVANIA,
v.
JAMES A. COGLEY, Appellant COMMONWEALTH OF PENNSYLVANIA,
v.
JAMES A. COGLEY, Appellant

NON-PRECEDENTI AL DECISION

Appeal from the Judgment of Sentence entered April 16, 2009, in the Court of Common Pleas of Butler County, Criminal Division, at No(s): CP-10-CR-0000964-2008, CP-10-CR-0000909-2008.

BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM

ALLEN, J.

In these consolidated pro se appeals, James A. Cogley ("Appellant"), challenges the judgment of sentence im posed by the trial court. We affirm.

The pertinent facts and procedural history have been summarized as follows:

The Commonwealth, over a period spanning December 2007 to February 2009, charged Appellant in twelve separate criminal com plaints, with a variety of criminal offenses. The cases were consolidated and made [ the] subject of a comprehensive plea agreement in which the Commonwealth recommended an aggregate sentence of 24 to 84 months' incarceration. On February 11, 2009, Appellant pled guilty to 14 counts in accordance with the plea agreement. With respect to eight of those counts, the plea agreement included a recommendation for restitution as ordered by the court.
On April 16, 2009, the trial court sentenced Appellant in accordance with the plea agreement. At sentencing, issues arose in connection with the amounts of restitution and the proper credit due for time served. At the sentencing hearing, after the Commonwealth's recitation of the terms of the plea agreement, Appellant's counsel stated the following[: ] "I would simply note that there are a number of restitution figures which we think are fairly inaccurate and would request – I will do so by motion – a hearing regarding the restitution." N.T., 4/ 16/ 09, at 7. At the conclusion of the sentencing hearing, the trial court stated the following[: ] "I will put the credit on each sentence as it's appropriate. If you disagree with the credit for time served, you can file that in the same motion and have the restitution hearing. And we will do the credit for time served at the same." Id. at 14. The trial court issued the respective sentencing orders later in the day on April 16, 2009.
Appellant filed handwritten post-sentence motions on April 24, 2009 that were not signed by his counsel of record. The motions pertain only to the sentences at five of the cases that were the subject of Appellant's plea agreement. Appellant's motions included a motion for credit for time served, a motion for modification of restitution, and a motion for modification of sentence. C.R. at 58. On April 27, 2009, pursuant to Pa.R.Crim.P. 576(A)(4), the Clerk of Courts forwarded a copy of Appellant's motions to his counsel of record. The record reflects that Appellant's counsel filed no response or subsequent action of any kind. On May 21, 2009, Appellant filed a pro se motion for "extraordinary relief for exigent circumstances to proceed pro se, " and by reference, renewed his earlier post-sentence motions. C.R. at 59. The record does not reflect that the Clerk of Courts forwarded a copy of this pro se filing to Appellant's attorney of record. On July 10, 2009, Appellant filed a pro se request for an answer to his earlier pro se motions. Appellant included with his motion, a proposed scheduling order upon which the trial court, on July 21, 2009, hand wrote an order denying Appellant's motions as follows[: ] " Denied [ -] untimely filed [ -] PCRA filed." C.R. at 66.

Commonwealth v. Cogley, 4 A.3d 675 (Pa.Super. 2010), unpublished memorandum at 1-4 (footnotes omitted). Appellant filed a pro se appeal to this Court. In an unpublished memorandum filed on June 4, 2010, we quashed Appellant's appeal as Appellant had filed it in an untimely manner. Cogley , supra .

In Appellant's prior direct appeal, we explained the trial court's reference to " PCRA filed" as follows:

[On May 21, 2009, Appellant also] filed a pro se petition for relief under the Post Conviction Relief Act (PCRA), pertaining to 903-08, 909-08, 963-08, 964-08 . Counsel was appointed to represent the Appellant in the PCRA on July 13, 2009. Appellant has since filed a number of pro se requests to withdraw the appointment of counsel. After filing his notice of appeal, Appellant also twice filed pro se motions requesting to withdraw his PCRA petition. As of the date of receipt of the certified record by this Court, no action had been taken on Appellant's PCRA related motions.

Cogley, unpublished memorandum at 4, n.7.

The trial court summarized the subsequent procedural history as follows:

On October 11, 2012, the [ PCRA court] granted [ Appellant's] PCRA request to reinstate post-sentence and direct appeal rights. On October 25, 2012, [ Appellant] filed Amended Post-Sentence Motions Nun [ sic] Pro Tunc. At the November 8, 2012 hearing on the post-sentence motions, [ Appellant] insisted on proceeding pro se, therefore [ the trial court] conducted a colloquy to insure that [ Appellant] understood the consequences of such action. After hearing, the [ trial court] issued orders on November 28, 2012. The [ trial court] considered the evidence presented at the hearing by [ Appellant], which consisted of bank statements, and modified the restitution sentences accordingly. At cases numbered [ 90 3-0 8] and [ 90 9-0 8 ], the [ trial court] granted restitution modification in part and denied it in part. At cases numbered [ 963-08 ] and [ 964-08 ] the motions were denied.

Trial Court Opinion, 4/ 26/ 13, at 1-2. These timely appeals followed. Both Appellant and the trial court ...


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