J.S04041/14 NON-PRECEDENTIAL DEC ISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : MARTIN LUTHER DERR, : : Appellant : No. 1686 EDA 2013

Appeal from the Judgment of Sentence March 22, 2013 In the Court of Common Pleas of Northampton County Criminal Division No(s).: CP-48-CR-0000658-2011 BEFORE: BENDER, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 16, 2014 Appellant, Martin Luther Derr, appeals from the judgment of sentence1 entered in the Northampton County Court of Common Pleas following the revocation of his parole.2 Appellant argues: (1) his notice of appeal was

* Former Justice specially assigned to the Superior Court.

Appellant purported to appeal from the May 9, 2013 order denying his motion for reconsideration of sentence. However, the appeal lies properly from the judgment of sentence imposed on March 22 2013, and we have amended the caption accordingly. en an offender is sentenced to a maximum term of imprisonment of less than two years, the common pleas court retains the authority to grant and revoke parole; when the maximum term is two years or more, authority to grant or revoke parole is vested in the Commonwealth v. Hanson, 856 A.2d 1254, 1258 (Pa. Super. 2004).

J.S04041/14 timely filed; (2) the trial court failed to state on the record reasons for revoking his parole and imposing its sentence; (3) his Gagnon II3 hearing was not speedily held; (4) the trial court denied his right to counsel for a post-sentence motion; and (5) he was not provided written notice of his alleged parole violations. We hold the notice of appeal was timely filed, but pro se post-sentence motion and remand for counsel to file a new post-

appeal was untimely. See Trial Ct. Op., 6/27/13, at 1-3.4 Commonwealth v. Trinidad, 90 A.3d 721, 724 (Pa. Super. 2014) (citations omitted). A notice of appeal shall be filed within thirty days of the order from which the appeal is taken.

Pa.R.A.P. 903(a). Because the underlying sentence was imposed after revocation of parole, the post-sentence proceedings are governed by Pennsylvania Rule of Criminal Procedure 708.5

A Gagnon I hearing is a pre-revocation hearing to determine if probable cause exists that a violation was committed. After this determination is made, a Gagnon II hearing is conducted where the Commonwealth is Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa. Super. 2011); see Gagnon v. Scarpelli, 411 U.S. 778 (1973).

The three-page opinion add of appeal.

See also Pa.R.Crim.P. 708, cmt

-2- J.S04041/14 motion to modify a sentence imposed after a revocation shall be filed within days of the date of imposition. The filing of a motion to modify sentence will not toll the 30- added); see also Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001). However, this Court has declined to quash an appeal where a

period, which operated as a breakdown i Coolbaugh, 770 A.2d at 791. In Coolbaugh

thirty days from the denial of his post-sentence motion to appeal to the Superior Court. Id. at 790-91.

Furthermore, we note that when a criminal defendant is represented pro se pleading is to refer the pleading to counsel, and to take no further action on the pro se pleading unless counsel forw Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (reiterating there is no right to hybrid representation); see also Pa.R.Crim.P. 576(A)(4) (stating that when criminal defendant, who is represented by attorney, submits motion for filing that has not been signed by attorney, clerk of court shall accept it for filing and forward copy to counsel).

In the case sub judice, current appellate counsel, Brian M. Monahan, n

-3- J.S04041/14 the underlying criminal case. Appellant was then represented at the March 22, 2013 revocation hearing by Robert Patterson, Esq.6 At that proceeding,

There is no indication in the record that either Attorney Patterson or Attorney Monahan requested, or was granted, leave to withdraw.

Nevertheless, Appellant then filed a pro se post-sentence motion on April

would generally have been due Monday, April 22nd,7 and the post-sentence motion would not have tolled this deadline. See Pa.R.A.P. 903(a); Pa.R.Crim.P. 708(E); Coolbaugh, 770 A.2d at 791. The court issued an order denying the motion on May 9th which fell after the April 22nd appeal deadline. Appellant then filed a notice of appeal through Attorney Monahan on June 5th. The notice of appeal is thus facially untimely under Rule of Appellate Procedure 903(a) and Rule of Criminal Procedure 708(E).

In its opinion, the trial court maintains that following sentencing,

In a pro se letter written from Appellant to the trial court, dated the day after the court revoked his parole, Appellant stated that he was represented at the Gagnon II rtified record provides no additional information as to whether Attorney Patterson was also from the

The thirtieth day after sentencing fell on Sunday, April 21, 2013. Appellant thus had until the following day to file a notice of appeal. See 1 Pa.C.S. § 1908.

-4- J.S04041/14 -Gagnon II Hearing inter alia, the time periods for filing a post-sentence motion and appeal, and the rule that a post-sentence motion would not toll the thirty-day period for filing an appeal. Trial Ct. Op. at 3 n.1. Our review of the form confirms the same.

Appellant argues on appeal, however, there was a breakdown in the

denying his pro se post-sentence motion, which erroneously stated that he had thirty days from the date of that order to file an appeal. See Order, 5/9/13, at 1. The Commonwealth responds that Appellant was provided the corr -

We further note that the certified record does not indicate whether the court forwarded pro se motion to either Attorney Patterson or Attorney Monahan. See Jette, 23 A.3d at 1044. Instead, it is clear that court ruled on the motion. See Jette, 23 A.3d at 1044. There is likewise no indication in the record or trial docket of whether the order was provided to either Attorney Monahan or Attorney Patterson.

pro se motion to counsel and its ruling on the pro se motion, and despite the post- Gagnon II t advice as to the time requirements for

-5- J.S04041/14 filing an appeal, we agree with Appellant that there was a breakdown in court operations necessitating excusal of his otherwise untimely notice of appeal. See Coolbaugh, 770 A.2d at 790-91. We thus hold this Court has jurisdiction over this appeal. See Trinidad, 90 A.3d at 724.

amended Pa.R.A.P. 1925(a) opinion addressing his claims. However, we pro se post-sentence motion See Pa.R.Crim.P. 708(E); Coolbaugh, 770 A.2d at 791; see also Pa.R.Crim.P. 122(B)(2) el has been appointed . . . the appointment shall be effective

also cannot determine whether Attorney Monahan has crafted the appellate brief with any assumptions that certain issues may have been waived by the failure to raise them in the post-sentence motion.

Furthermore, we note some deficiencies in the record that could hamper our review. For example, in arguing he was not provided written notice of the alleged parole violations, Appellant avers that neither the record nor docket indicate that the petition to revoke was served on him.

Our review of the record confirms there is no certificate of service or

-6- J.S04041/14 notation in the docket of service on anyone.8 There is also no transcript of the Gagnon I hearing, the contents of which may or may not be informative. In addition, one contested issue at the Gagnon II hearing was whether Appellant completed drug treatment or provided proof of such completion. The probation officer, while testifying that Appellant did not provide proof of completion, also stated Appellant attempted to re-enroll in

-6. There is no further discussion or elaboration. See id. at 6.

In light of all the foregoing, and with caution to err in protecting

pro se post sentence motion and remand for counsel to file a post- considering the new motion, the court may conduct any proceedings it deems appropriate. Because the court will rule afresh on any issues raised in the counseled motion, we do not c issues in this appeal.9

See are filed and served . . . shall include a certificate of serv We emphasize that this memorandum, including our statements above - enroll in treatment, is not to be construed as endorsement of any claim.

Instead, it is for the trial court to consider any claim presented, with the

-7- J.S04041/14 Order denying post-sentence relief vacated. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary Date: 9/16/2014

-hand knowledge of the proceedings.

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