J-S44006-24
2025 PA Super 59
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ELIJAH THOMPSON :
:
Appellant : No. 2223 EDA 2023
Appeal from the Judgment of Sentence Entered July 24, 2023
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002059-2020
BEFORE: NICHOLS, J., MURRAY, J., and LANE, J.
OPINION BY NICHOLS, J.: FILED MARCH 13, 2025
Appellant Elijah Thompson appeals from the judgment of sentence
imposed following his open guilty plea to aggravated assault, stalking,
endangering the welfare of children (EWOC), and recklessly endangering
another person (REAP).1 Appellant’s current counsel (Current Counsel) has
filed a petition to withdraw and an Anders/Santiago2 brief.3 After review,
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1 18 Pa.C.S. §§ 2702(a)(4), 2709.1(a)(1), 4304(a)(1), and 2705,
respectively.
2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
3 The instant appeal involves trial court docket 2059-2020 and was docketed
at Superior Court docket 2223 EDA 2023. We note that Appellant also filed
appeals at trial court dockets 4181-2019, which was docketed at Superior
Court docket 2224 EDA 2023, and 2060-2020, which was docketed at Superior
Court docket 2226 EDA 2023. The appeals at 2224 EDA 2023 and 2226 EDA
2023, will be addressed in separate memoranda.
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we deny Current Counsel’s petition to withdraw, vacate the judgment of
sentence entered on September 5, 2023, and reinstate and affirm the original
judgment of sentence entered on July 24, 2023 at docket 2059-2020.
The relevant facts and procedural history of this case are well known to
the parties. Briefly, the record reflects that on January 24, 2023, Appellant
entered an open guilty to aggravated assault, stalking, EWOC, and REAP. See
N.T. Guilty Plea, 1/24/23, at 10-16. During the colloquy, the Commonwealth
summarized the facts underlying this matter as follows:
On July 7th, 2020, in Uwchlan Township, Chester County,
[Appellant] engaged in a course of conduct which had the effect
and purpose of placing Madeleine Devitis in fear of bodily injury
and causing her substantial emotional distress; specifically,
despite the fact that there was an active Protection from Abuse
Order ordering [Appellant] not to have any contact with her, he
did attempt to contact her repeatedly that day.
And ultimately, [Appellant] drove up next to her while she was at.
. . at a traffic light on Route 113 in Uwchlan Township, Chester
County, [Appellant] tried to wave to her and get her attention,
when she ignored him and didn’t respond, he then drove his
vehicle into the side of her vehicle.
She then left that traffic light, she drove into a nearby parking lot.
At that point, [Appellant] chased [her] in his vehicle into that
parking lot and he chased her around that vehicle – around that
parking lot in the vehicle recklessly. In doing so, he placed both
Ms. Devitis, his young child who was in the car at that time, as
well as other people in that parking lot at risk of serious bodily
injury or death.
…
The parking lot where this happened is where the Chester Springs
Limoncello Restaurant is located and there were people sitting out
in that parking area outside dining.
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During this entire interaction, [Appellant’s] child, it is a child he
shares with the victim, was in [Ms. Devitis’s] vehicle at that time.
And I believe at that point in time, the child was approximately
one year[] old.
Id. at 10-11.
On July 24, 2023, the trial court sentenced Appellant to a term of three
to ten years of incarceration for aggravated assault, one to five years of
incarceration for stalking concurrent to the sentence imposed for aggravated
assault, one to two years of incarceration for EWOC consecutive to the
sentence for aggravated assault, and six months to two years of incarceration
for REAP consecutive to the sentence for aggravated assault. See Sentencing
Order, 7/24/23; see also N.T. Sentencing, 7/24/23, at 39. This resulted in
an aggregate sentence of four and one-half to fourteen years of incarceration
at 2059-2020. Appellant filed a post-sentence motion on August 1, 2023,
which the trial court denied on August 16, 2023, and Appellant filed a timely
appeal on August 23, 2023.4 The trial court did not file an opinion pursuant
to Pa.R.A.P. 1925(a).
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4 Several attorneys represented Appellant from his guilty plea to the filing of
the notice of appeal and the Anders/Santiago brief. After Appellant filed his
notice of appeal, the trial court directed Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). However,
Appellant’s counsel at the time, P.J. Redmond, Esq., was permitted to
withdraw, and the trial court appointed Thomas P. McCabe, Esq., to represent
Appellant. Attorney McCabe requested an extension of time to file the Rule
1925(b) statement, which the trial court granted. Ultimately, however,
Attorney McCabe filed a notice of intent to file an Anders/Santiago brief
pursuant to Pa.R.A.P. 1925(c)(4) on November 17, 2023, and the trial court
did not file an opinion. Following Attorney McCabe’s election to the Court of
(Footnote Continued Next Page)
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In the Anders/Santiago brief, Current Counsel concluded that there
were no non-frivolous issues. Current Counsel further notes that to the extent
that Appellant seeks to challenge the discretionary aspects of his sentence,
Appellant failed to properly preserve that issue, and that there is no viable
claim that the trial court abused its discretion in sentencing Appellant.
Anders/Santiago Brief at 10.
“When faced with a purported Anders[/Santiago] brief, this Court may
not review the merits of any possible underlying issues without first examining
counsel’s request to withdraw.” Commonwealth v. Wimbush, 951 A.2d
379, 382 (Pa. Super. 2008) (citation omitted). Counsel must comply with the
technical requirements for petitioning to withdraw by (1) filing a petition for
leave to withdraw stating that after making a conscientious examination of
the record, counsel has determined that the appeal would be frivolous; (2)
providing a copy of the brief to the appellant; and (3) advising the appellant
of the right to retain private counsel, proceed pro se, or raise additional
arguments that the appellant considers worthy of the court’s attention. See
Commonwealth v. Goodwin,
928 A.2d 287, 290 (Pa. Super. 2007) (en
banc). In an Anders/Santiago brief, counsel must set forth the issues that
____________________________________________
Common Pleas of Chester County, the trial court appointed Scott J. Werner,
Jr., Esq., to represent Appellant. Due to a conflict, the trial court next
appointed Brian L. McCarthy, Esq. (Current Counsel), to represent Appellant
on January 3, 2024. Current Counsel filed his petition for an extension of time
to file a brief in this Court, and this Court granted Current Counsel an
extension of time and ordered that Appellant’s brief was due on or before May
3, 2024. Current Counsel ultimately concluded that there were no non-frivolous issues and filed an Anders/Santiago brief on May 2, 2024.
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the defendant wishes to raise and any other claims necessary to effectuate
appellate presentation of those issues. Commonwealth v. Millisock, 873
A.2d 748, 751 (Pa. Super. 2005).
Additionally, counsel must file a brief that meets the requirements
established in Santiago, namely:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361.
“Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “an
independent review of the record to discern if there are any additional, non-
frivolous issues overlooked by counsel.” Commonwealth v. Flowers,
113
A.3d 1246, 1250 (Pa. Super. 2015) (citation and footnote omitted); accord
Commonwealth v. Yorgey,
188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc).
Here, Current Counsel has complied with the procedural requirements
for seeking withdrawal by filing a petition to withdraw, sending Appellant a
letter explaining his appellate rights, informing Appellant of his right to
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proceed pro se or with private counsel, and supplying Appellant with a copy
of the Anders/Santiago brief. See Goodwin, 928 A.2d at 290. Current
Counsel also provided this Court with a copy of his letter to Appellant informing
him of his rights. Moreover, Current Counsel’s Anders/Santiago brief
complies with the requirements of Santiago, and the brief includes a
summary of the relevant factual and procedural history, refers to the portions
of the record that could arguably support Appellant’s claim, and sets forth the
conclusion that the appeal is frivolous. See Santiago,
978 A.2d at 361.
Accordingly, we conclude that Current Counsel has met the technical
requirements of Anders and Santiago, and we will proceed to address the
issue identified in the Anders/Santiago brief.
In the Anders/Santiago brief, Current Counsel identifies an issue
concerning whether the trial court imposed an excessive sentence by failing
to consider mitigating factors. See Anders/Santiago Brief at 10, 14.
This issue implicates the discretionary aspects of Appellant’s sentence.
See, e.g., Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008)
(explaining that “[a] challenge to an alleged excessive sentence is a challenge
to the discretionary aspects of a sentence” (citation omitted)). “[C]hallenges
to the discretionary aspects of sentencing do not entitle an appellant to review
as of right.” Commonwealth v. Derry,
150 A.3d 987, 991 (Pa. Super. 2016)
(citations omitted). Before reaching the merits of such claims, we must
determine:
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(1) whether the appeal is timely; (2) whether Appellant preserved
his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P.
2119(f)] concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is inappropriate under the
sentencing code.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations
omitted).
“To preserve an attack on the discretionary aspects of sentence, an
appellant must raise his issues at sentencing or in a post-sentence motion.
Issues not presented to the sentencing court are waived and cannot be raised
for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a). “The
determination of what constitutes a substantial question must be evaluated
on a case-by-case basis.” Commonwealth v. Battles,
169 A.3d 1086, 1090
(Pa. Super. 2017) (citation omitted). “A substantial question exists only when
the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Grays,
167 A.3d 793, 816 (Pa. Super. 2017)
(citation omitted).
Instantly, although Appellant filed a post-sentence motion, the post-
sentence motion read, in its entirety, as follows:
1. [Appellant] was sentenced to an aggregate 6-23 years with
accurate credit for time served of a little more than 3 years.
The sentence was for three different assault cases. Two were
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after open guilty pleas, and the third was after verdict in a
bench trial.
2. The [trial c]ourt imposed permissible (that is guidelineallowed) sentences in each of [the] 8 counts as to which a
sentence could be imposed. [Appellant] accepts the [trial
c]ourt’s sentencing authority as to the minimums imposed and
acknowledges its requirement that he be jailed for punitive
reasons and too acknowledges that he was arrested on two
cases while he was out on bail for the 1st one. [Appellant]
accepts that he must serve a sentence and that the [trial
c]ourt’s selection of a state prison is proportionate to his
criminal conduct.
3. [Appellant] thinks the maximums imposed are a little harsher
than might have been necessary to deliver imposed [sic]. He
offers no new evidence or information on which to argue the
[trial c]ourt’s sentences as imposed.
WHEREFORE, [Appellant] requests that [the trial court] consider
his request in particular whether the [trial c]ourt might attain its
purpose with a shorter potential maximum sentence.
Post-Sentence Mot., 8/1/23, at 1-2 (some formatting altered).
We note that Appellant filed identical post-sentence motions at three
separate trial court dockets, and that Appellant has failed to specify which
sentence he purported to challenge within these three dockets. Moreover,
Appellant never alleged in these three identical motions that the trial court
failed to consider mitigating factors when it imposed sentence in any of these
cases. Accordingly, we agree with Current Counsel that Appellant failed to
preserve his challenge to the discretionary aspects of his sentence on appeal,
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and therefore, an appeal on this claim would be frivolous. 5 See Malovich,
903 A.2d at 1251; see also Pa.R.A.P. 302(a).
However, upon independent review, we observe that on September 5,
2023, the trial court purported to amend the sentence imposed on July 24,
2023, at trial court docket number 2059-2020. As noted, on July 24, 2023,
the trial court sentenced Appellant to a term of three to ten years of
incarceration for aggravated assault. However, the trial court did not specify
whether this sentence was to run concurrently or consecutively to any of the
sentences in the instant case or the other two dockets. See Sentencing Order,
____________________________________________
5 We acknowledge that Current Counsel notes that although Appellant may
possibly assert claims concerning prior counsel’s ineffectiveness, such claims
must generally wait for review under the Post-Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. See Anders/Santiago Brief at 10. See
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (holding that,
absent specified circumstances not applicable here, “claims of ineffective
assistance of counsel are to be deferred to PCRA review”). Further, although
the record reflects that Appellant was represented by counsel throughout the
proceedings in both the trial court and this Court, Appellant filed pro se
motions challenging, among other things, the stewardship of prior attorneys.
See Pro Se Post-Sentence Mot., 8/14/23; Pro Se Correspondence, 9/27/23.
However, Appellant’s pro se filings are nullities because at all relevant times,
Appellant was represented by counsel, and hybrid representation is not
permitted. See Commonwealth v. Jette,
23 A.3d 1032, 1036 (Pa. 2011)
(there is no right to hybrid representation); see also Commonwealth v.
Nischan,
928 A.2d 349, 355 (Pa. Super. 2007) (providing that a pro se
motion filed when a defendant is represented by counsel is a legal nullity; the
appellant “had no right to file a pro se motion because he was represented by
counsel” (citation omitted)). Further, Appellant did not file a response to
Current Counsel’s petition to withdraw as counsel. It is axiomatic that under
these circumstances, any claims Appellant may have concerning ineffective
assistance of counsel must be raised under the PCRA. See Holmes,
79 A.3d
at 576.
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7/24/23. Also, at docket number 2059-2020, the trial court imposed a
sentence of one to five years of incarceration for stalking and ordered that
this sentence was to run concurrently with the sentence imposed for
aggravated assault. See id. Additionally at docket 2050-2020, the trial court
sentenced Appellant to a term of one to two years of incarceration for EWOC
and ordered that this sentence was to run consecutively to the sentence for
aggravated assault. See
id. Finally at docket 2059-2020, the trial court
imposed a sentence of six months to two years of incarceration for REAP,
which was to run consecutively to the sentence for aggravated assault. See
id. The trial court imposed an aggregate sentence of four and one-half to
fourteen years of incarceration at docket 2059-2020 on July, 24, 2023. See
id; see also N.T. Sentencing, 7/24/23, at 39.
Despite Appellant filing his notice of appeal on August 23, 2023, on
September 5, 2023, the trial court purported to amend Appellant’s sentence
at docket 2059-2020, without a resentencing hearing and without Appellant
being present; further, the trial court ordered the sentence for aggravated
assault to run consecutively to the sentence imposed at docket 4181-2019.
See Am. Sentencing Order, 9/5/23.
This Court has previously explained:
Except as otherwise provided or prescribed by law, a court
upon notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such
order has been taken or allowed.
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42 Pa.C.S. § 5505. “Generally, 42 Pa.C.S. § 5505 precludes the
entry of an order modifying a final order more than thirty days
after its entry.” Commonwealth v. Concordia, 97 A.3d 366,
371 (Pa. Super. 2014). Nonetheless, a trial court retains the
inherent jurisdiction to correct obvious or patent errors in its
orders, even if it is outside the standard 30-day paradigm, when
warranted. See id. “An alleged error must qualify as a clear
clerical error or a patent and obvious mistake in order to be
amenable to correction.” Commonwealth v. Ellsworth, 97 A.3d
1255, 1257 (Pa. Super. 2014) (citation omitted).
Even if there is a clear mistake, that does not relieve the court of
its obligation to give notice as required by 42 Pa.C.S. § 5505 to
both the defendant and the district attorney of the proposed
changes and an opportunity to respond to those changes. Not
only is such a notice required by 42 Pa.C.S. § 5505, the sentencing
process must also satisfy due process, which similarly requires a
notice and opportunity to respond. See Commonwealth v.
Wright, 494 A.2d 354, 359 (Pa. 1985); Commonwealth v.
Eldred, 207 A.3d 404 (Pa. Super. 2019).
It is in accord with those mandates that we have held that a trial
court “is empowered to modify a sentence only if it notifies the
defendant and the district attorney of its intention to do so.”
Commonwealth v. Hobson, 452 A.2d 22, 23 (Pa. Super. 1982)
(citing Commonwealth v. Horsman, 361 A.2d 433 (Pa. Super.
1976)). Modification of a sentence without notifying the
defendant is inconsistent with “the accused being present at every
vital stage of the criminal process.” Commonwealth. v.
Pastorkovic, 567 A.2d 1089, 1092 (Pa. Super. 1989). Moreover,
if the sentence is modified without giving notice, it is without
effect. See Commonwealth v. Reed, 386 A.2d 41 (Pa. Super.
1978).
Commonwealth v. Blair, 230 A.3d 1274, 1277 (Pa. Super. 2020) (some
formatting altered); see also Commonwealth v. Borrin,
80 A.3d 1219,
1227 (Pa. 2013) (plurality) (holding that the trial court could not modify a
sentencing order more than thirty days after it was entered to address
whether a sentence was consecutive or concurrent); Pa.R.A.P. 1701(a)
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(providing that “[e]xcept as otherwise prescribed by these rules, after an
appeal is taken . . . the trial court . . . may no longer proceed further in the
matter”); Pa.R.Crim.P. 602(A) (stating that “[t]he defendant shall be present
at every stage of the trial including . . . at the imposition of sentence”). 6
Here, Appellant filed a timely notice appeal on August 23, 2023, prior to
the entry of the September 5, 2023 amended judgment of sentence. Further,
Appellant was not present nor notified that the trial court intended to modify
his sentence, additionally we discern no patent or obvious error in the July 24,
2023 judgment of sentence that would be amenable for correction. On this
record, we conclude that the trial court lacked jurisdiction to amend the July
24, 2023 judgment of sentence, and the September 5, 2023 judgment of
sentence is a legal nullity of no effect. See Blair, 230 A.3d at 1277; see also
Borrin,
80 A.3d at 1227; 42 Pa.C.S. § 5505; Pa.R.A.P. 1701(a).7
For these reasons, we vacate the September 5, 2023 amended sentence
as a nullity, reinstate and affirm the July 24, 2023 judgment of sentence, and
deny Current Counsel’s motion to withdraw. Current Counsel shall remain
counsel of record through the completion of Appellant’s direct appeal process.
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6 Although the right to be present at sentencing and the right to allocution
may be waived, there is no indication that Appellant waived those rights in
this case. See Commonwealth v. Faulk, 928 A.2d 1061, 1066 (Pa. Super.
2007) (regarding waiver of the right to be present); Commonwealth v.
Hardy,
99 A.3d 577, 579 (Pa. Super. 2014) (regarding waiver of the right to
allocution). As discussed, Appellant did not have notice of the trial court’s
intent to amend his sentence.
7 We discern no additional non-frivolous issues following our independent
review.
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Current Counsel’s petition to withdraw is denied. Amended judgment of
sentence entered on September 5, 2023 is vacated. July 24, 2023 judgment
of sentence at docket 2059-2020 is reinstated and affirmed. Jurisdiction
relinquished.
Date: 3/13/2025
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