March 3, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
DARRYL WILLIAMS, Appellant
Appeal from the Judgment of Sentence October 19, 2011 in the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001859-2010
BEFORE: PANELLA, ALLEN, and STRASSBURGER, [*] JJ.
Darryl Williams (Appellant) appeals from the judgment of sentence entered October 19, 2011, after he pled guilty to two counts of possession of a controlled substance, two counts of possession with intent to deliver a controlled substance (PWID), two counts of possession of drug paraphernalia, and one count of possession of a small amount of marijuana. We vacate Appellant's judgment of sentence and remand with instructions.
Appellant was arrested on January 5, 2010, after police discovered cocaine in his vehicle. Additional cocaine also was located in Appellant's home. As a result, Appellant was charged with the aforementioned offenses.
Appellant filed a motion to suppress the physical evidence of his crimes, but this motion was denied. Appellant then entered into a negotiated guilty plea on October 19, 2011. Consistent with this agreement, the Commonwealth waived the mandatory minimum sentence of seven years' incarceration, and the trial court sentenced Appellant to four-and-a-half to nine years' incarceration followed by four years of probation. During sentencing, the parties and the trial court addressed whether Appellant was eligible for a reduced sentence pursuant to the Recidivism Risk Reduction Incentive Act (RRRI), 61 Pa.C.S. §§ 4501–4512. Their discussion was limited to the following.
[The assistant district attorney]: [Appellant] is not RRRI eligible.
THE COURT: That is on the record. He is not RRRI eligible.
[Appellant's counsel]: No.
THE COURT: All right.
N.T., 10/19/2011, at 11.
Appellant timely filed a pro se notice of appeal on October 26, 2011.However, Appellant's notice of appeal consisted of a single piece of paper without an accompanying proof of service. Appellant also failed to pay the appropriate filing fee or, in the alternative, submit a petition to proceed in forma pauperis. Accordingly, the Allegheny County Department of Court Records sent Appellant a letter requesting that he correct these deficiencies. Appellant did not comply.
On December 20, 2011, a new attorney, Jenee' N. Oliver, Esq., entered her appearance on Appellant's behalf but did nothing to advance the case. The case remained dormant for nearly nine months before a third attorney, Jennifer R. Chontos, Esq., entered her appearance and filed an amended notice of appeal on September 13, 2012. On September 26, 2012, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925. The order specified that Appellant had "twenty-one (21) days after the receipt of all court transcripts" to file his concise statement. It is unclear when Appellant received the relevant transcripts, but a concise statement was filed on October 24, 2012.
Appellant now raises the following issue on appeal. "Whether [Appellant's] sentence was illegal because the trial court failed to properly determine [Appellant's] RRRI eligibility?" Appellant's Brief at 5.
Before reaching the merits of Appellant's claim, we must discern whether we have jurisdiction over this appeal. As discussed supra, Appellant's notice of appeal was filed pro se while Appellant still was represented by counsel. Moreover, the notice of appeal was defective in that the appropriate filing fee was not paid, and because the notice was not accompanied by a certificate of service. See Pa.R.A.P. 905, 906.
Generally, our courts will not entertain pro se filings while an appellant remains represented, and such filings have been described as legal nullities. See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010). However, pro se notices of appeal present a special case. In Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011), our Supreme Court held that a pro se notice of appeal, filed while Cooper was represented by counsel, was not automatically a legal nullity, but was simply "premature." Id. at 1007. Admittedly, Cooper was a case with a unique procedural history that can be distinguished from that of the instant matter. Nonetheless, this Court and our Supreme Court have faced pro se notices of appeal filed by represented appellants both before and after Cooper, and we have not considered this defect to be fatal. See, e.g., Commonwealth v. Wilson, 67 A.3d 736, 738 (Pa. 2013) (explaining that "[Wilson] filed a pro se notice of appeal; it is not clear why his court-appointed counsel did not file the notice, " and proceeding to review the merits of Wilson's case without further discussion); Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.Super. 2009) (remanding for a Grazier hearing where, after the denial of Robinson's counseled petition pursuant to the Post Conviction Relief Act, Robinson filed a timely pro se appeal, and a petition requesting that he be allowed to proceed pro se, and the PCRA court entered an order permitting counsel to withdraw). Thus, we will not treat Appellant's pro se notice of appeal as a nullity.
We likewise conclude that the fact that Appellant's notice of appeal was defective in certain respects is not fatal to this appeal. Critically, Appellant timely filed his pro se notice of appeal within 30 days of his judgment of sentence. The Rules of Appellate Procedure state clearly that "[f]ailure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but it is subject to such action as the appellate court deems appropriate[.]" Pa.R.A.P. 902 (emphasis added). We find instructive this Court's decision in Commonwealth v. Bryant, 57 A.3d 191 (Pa.Super. 2012). In that case, "[the trial court] received a timely Notice of Appeal; however, this appeal was never docketed by the Superior Court. On August 2, 2011, this [trial] court reinstated [Appellant's] appellate rights nunc pro tunc and appointed new appellate counsel." Id. at 194. This Court discussed the issue as follows.
The trial court docket provides the text of the August 2, 2011 order, which indicates Appellant's first notice of appeal was timely filed. … That notice of appeal, even if perfected later by Appellant's second notice of appeal, properly invoked this court's jurisdiction. As the Commonwealth did not object to the second notice of appeal or the trial court's acceptance of that notice, and as this Court has all the information necessary to proceed to the merits, we deem it appropriate to reach those merits.
Id. at 194 n.4.
Similarly, in this case, the Commonwealth has not objected to the validity of either of Appellant's notices of appeal. Moreover, we have all we need to analyze Appellant's claim. While Appellant's initial pro se notice of appeal was defective in certain respects, those defects have since been remedied by way of Appellant's "amended" notice of appeal.
Appellant's claim that he was entitled to a RRRI sentence implicates the legality of his sentence. Commonwealth v. Pardo, 35 A.3d 1222, 1230 (Pa.Super. 2011) ("This Court has previously held that when a defendant challenges a trial court's disqualification of his entry into the RRRI program, the issue is one of legality of the sentence and is non-waivable.").
The scope and standard of review applied to determine the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. In evaluating a trial court's application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.
Commonwealth v. Armstrong, 74 A.3d 228, 239 (Pa.Super. 2013) (quoting Commonwealth v. Leverette, 911 A.2d 998, 1001–02 (Pa.Super. 2006))
While Appellant presents a single issue for our review, the argument in his brief may be divided into two distinct parts. Appellant first contends that the trial court's on-the-record determination of Appellant's RRRI eligibility should not count as a determination at all, and "'[w]here the trial court fails to make a statutorily required determination regarding a defendant's eligibility for a RRRI minimum sentence as required, the sentence is illegal[.]'" Appellant's Brief at 10 (quoting Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa.Super. 2010)). Appellant states that the trial court was required to make its own determination of Appellant's RRRI eligibility, but "[i]nstead, it relied upon the erroneous opinion of [the assistant district attorney] at the end of the sentencing hearing." Id. at 12. Appellant's second argument is that, in the alternative, the trial court's on-the-record determination of his RRRI eligibility is incorrect, not supported by evidence of record, and he should have received a RRRI sentence. Id. at 13. Because we conclude that this second argument entitles Appellant to relief in the form of a remand, we need not address whether the trial court's on-the-record determination of Appellant's RRRI eligibility was legally sufficient.
In order to be entitled to a RRRI sentence, a defendant must meet the definition of "eligible offender, " codified at 61 Pa.C.S. § 4503. The statute provides, in relevant part:
"Eligible offender." A defendant or inmate convicted of a criminal offense who will be committed to the custody of the department and who meets all of the following eligibility requirements:
(2) Has not been subject to a sentence the calculation of which includes an enhancement for the use of a deadly weapon as defined under law or the sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing or the attorney for the Commonwealth has not demonstrated that the defendant has been found guilty of or was convicted of an offense involving a deadly weapon or offense under 18 Pa.C.S. Ch. 61 (relating to firearms and other dangerous articles) or the equivalent offense under the laws of the United States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico or a foreign nation.
61 Pa.C.S. § 4503 (emphasis added).
The trial court states that Appellant is not an "eligible offender" based upon
"a criminal record, provided by the Commonwealth from the Superior Court of New Jersey, Essex County, indicating that on February 7, 1984 [Appellant] plead[ed] guilty to 1 count of Third Degree Unlawful Possession of a Weapon in violation of N.J.S. 2C:39-5b." Trial Court Opinion, 5/2/2013 at 4-5. This record is attached to the trial court's opinion as an appendix. The relevant New Jersey statute provides as follows.
b. Handguns. (1) Any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same as provided in N.J.S.2C:58-4, is guilty of a crime of the second degree. (2) If the handgun is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person it is a crime of the third degree.
The trial court concludes that "[Appellant's] guilty plea to N.J.S. 2C:39-5b is an equivalent offense to Firearms Not to Be Carried Without a License under 18 Pa.C.S.A. §6106, " and Appellant is thus ineligible for a RRRI sentence. Trial Court Opinion, 5/2/2013, at 5. Firearms not to be carried without a license is defined in the following manner.
(a) Offense defined.--
(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.
(2) A person who is otherwise eligible to possess [a] valid license under this chapter but carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.
18 Pa.C.S. 6106(a).
Appellant challenges the trial court's conclusions for two reasons. First, Appellant observes that the alleged criminal record relied on by the trial court was never made a part of the certified record, and appears only as an appendix to the trial court's Pa.R.A.P. 1925 opinion. Second, Appellant claims that, even if this record is correct, the offense in question does not render him ineligible for a RRRI sentence. Appellant asserts that he "was convicted of a felony of the third degree under [N.J.S. 2C:39-5b], thus showing, based upon the definition provided, that the 'firearm' that he possessed was what is commonly referred to as a BB or pellet gun." Appellant's brief at 18. Appellant contends that "possession of a BB gun is not a crime in Pennsylvania. As a result, the New Jersey crime is not an equivalent offense to 18 Pa.C.S. § 6106." Id. at 19-20.
We agree with Appellant that the record as it currently stands is insufficient to confirm that he is RRRI ineligible. As Appellant explains, merely attaching a document to a trial court opinion does not make that document part of the record, and the trial court may not rely on the alleged criminal record to justify its sentence. Hatalowich v. Bednarski, 461 A.2d 1292, 1294 (Pa.Super. 1983) ("[A] fact cannot become of record by virtue of its inclusion in the trial court opinion."); Commonwealth v. Edwards, 71 A.3d 323, 324 n.1 (Pa.Super. 2013) ("'It is axiomatic that an appellate court is limited to considering only those facts which have been duly certified in the record on appeal and, for purposes of appellate review, what is not of record does not exist.'") (quoting Law Office of Douglas T. Harris, Esquire v. Philadelphia Waterfront Partners, LP, 957 A.2d 1223, 1228 n.2 (Pa.Super. 2008)). We must therefore vacate Appellant's judgment of sentence and remand for a new determination of Appellant's RRRI eligibility, followed by resentencing.
Judgment of sentence vacated. Remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished. Judgment Entered.