Com. v. Gibson, J.
2101 MDA 2016
| Pa. Super. Ct. | Oct 20, 2017Background
- John Gibson pled guilty to DUI—highest rate and driving with BAC ≥ .02 while license suspended; sentenced May 26, 2016 to 30–60 months plus 90 days consecutive.
- He filed timely post-sentence and supplemental motions; counsel sought a 30-day extension under Pa.R.Crim.P. 720(B)(3)(b).
- Post-sentence motions were denied by operation of law on October 31, 2016, but the clerk did not enter the denial/order until November 16, 2016 (court clerk delay).
- Gibson mailed a pro se notice of appeal dated December 15, 2016 (postmark Dec. 16); clerk docketed it Dec. 19, 2016. At mailing time Gibson still had counsel of record.
- Both Gibson and trial counsel filed motions in early December seeking counsel’s withdrawal and appointment of new counsel; the trial court granted withdrawal on Feb 6, 2017 but did not appoint new appellate counsel or conduct any waiver colloquy.
- Superior Court remanded for factfinding on timeliness (application of prisoner-mailbox rule) and whether Gibson was effectively abandoned and therefore entitled to appointed counsel or whether he validly waived counsel on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal | Gibson: pro se notice mailed Dec. 16, 2016 was within 30 days of clerk’s Nov. 16 entry; mailbox rule applies | Commonwealth: notice docketed Dec. 19; Gibson had counsel so mailbox rule may not apply; appeal appears untimely | Remanded: trial court must determine whether mailbox rule applies given counsel’s status and whether protective appeal should be deemed timely |
| Hybrid representation / pro se filings | Gibson: his pro se filings should be considered to protect rights amid counsel breakdown | Commonwealth: hybrid representation is disfavored; pro se filings by counseled defendants are usually nullities | Remanded: court must find whether counsel effectively abandoned Gibson, permitting pro se protective filings to be treated as timely |
| Right to counsel on direct appeal | Gibson: sought new counsel; lacked counsel for appeal and submitted pro se brief | Commonwealth: no on-record waiver of counsel was made | Held: trial court failed to protect Sixth Amendment rights; must determine if Gibson is entitled to appointed counsel and whether any waiver was knowing and voluntary |
| Application of Birchfield decision | Gibson: Birchfield may undermine his DUI–highest rate conviction (raised in motion in arrest of judgment) | Commonwealth: trial court previously concluded Birchfield was inapplicable | Not reached on merits; Superior Court remanded procedural issues first (timeliness and counsel) before addressing substantive impact of Birchfield |
Key Cases Cited
- Commonwealth v. Khalil, 806 A.2d 415 (Pa. Super. 2002) (clerk’s failure to enter order can constitute court process breakdown affecting appeal period)
- Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997) (prisoner-mailbox rule: prisoner’s filing is dated when placed in prison mail system)
- Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010) (pro se filings by counseled defendants are generally legal nullities)
- Commonwealth v. Leatherby, 116 A.3d 73 (Pa. Super. 2015) (where defendant was effectively abandoned by counsel, pro se post-sentence filing tolled appeal period)
- Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (waiver of counsel on the record requires comprehensive colloquy)
- Commonwealth v. McDonough, 812 A.2d 504 (Pa. 2002) (trial judge has duty to protect defendant’s right to counsel)
- Ross v. Moffitt, 417 U.S. 600 (U.S. 1974) (indigent defendant’s right to counsel extends to direct appeals of right)