J-A22029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

JAMONT W. HENRY

                            Appellant               No. 2108 MDA 2015


         Appeal from the Judgment of Sentence September 30, 2015
            In the Court of Common Pleas of Lackawanna County
             Criminal Division at No(s): CP-35-CR-0001054-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                      FILED NOVEMBER 07, 2016

       Appellant, Jamont W. Henry, appeals from the judgment of sentence

entered in the Lackawanna County Court of Common Pleas, Criminal

Division, following his nolo contendere plea to aggravated assault with a

deadly weapon, possession with intent to deliver a controlled substance

(“PWID”), and criminal conspiracy to deliver a controlled substance. 1 We

remand for further proceedings consistent with this memorandum.

       The relevant facts and procedural history of this case are as follows.

On March 23, 2014, the police responded to a report of a male screaming in

the back of a residence and carrying a gun. The man, later identified as the

____________________________________________


1
  18 Pa.C.S.A. § 2702(a)(4); 35 Pa.C.S.A § 780-113(a)(30); and 18
Pa.C.S.A. § 903; respectively.
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Appellant, became emotionally distraught when he observed his paramour,

who lived with him, engaging in sexual relations with another man. Appellant

fired a warning shot near the two individuals to stop them. When officers

arrived at the scene and placed Appellant into custody, they conducted a

sweep of the residence and discovered storage containers, one of which was

filed with individual packets of heroin.

      That day, the Commonwealth filed a criminal complaint against

Appellant charging him with various drug- and firearm-related offenses.

Appellant waived his arraignment on June 2, 2014. Following his preliminary

hearing and pre-trial omnibus motion hearing, the court dismissed some of

Appellant’s charges. Appellant entered a plea of nolo contendere to

aggravated assault with a deadly weapon, PWID, and criminal conspiracy to

deliver a controlled substance on November 24, 2015. In exchange for the

plea agreement, the Commonwealth agreed to drop all of the remaining

charges against Appellant. Attorney Donna DeVita of the Public Defender’s

Office represented Appellant during the plea process. The court sentenced

Appellant to 2 to 5 years’ imprisonment for aggravated assault, 18 months

to 36 months’ imprisonment for PWID, and 18 months to 36 months’

imprisonment for criminal conspiracy, both of which were to run concurrent

with the aggravated assault sentence.

      Appellant filed pro se post-sentence motions to withdraw his plea and

for the reconsideration of his sentence. The court forwarded the motions to


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Attorney DeVita, but counsel never filed anything of record relating to them.

Appellant filed a pro se notice of appeal. The court ordered, pursuant to

Pa.R.A.P. 1925(b), Appellant to file a concise statement of errors complained

of on appeal, but Attorney DeVita never filed one. Instead, the court filed a

Rule 1925(a) opinion stating that it knew Appellant wished to file an appeal,

but the court was unsure of Appellant’s specific appellate issues.

      Appellant filed a second pro se notice of appeal on December 2, 2015,

and this Court received the notice of appeal on December 8, 2015. Attorney

DeVita was placed on the docket as counsel and was sent an order directing

her to file a docketing statement, but counsel never filed one. This Court

issued an order remanding to the trial court for a hearing to determine

whether counsel abandoned Appellant. After the hearing, the court entered

an   order   finding   Attorney   DeVita   did   not   abandon   Appellant   and

recommended Appellant’s appellate rights be reinstated. Of her own accord,

Attorney DeVita filed a “notice of appeal nunc pro tunc” which she docketed

at 704 MDA 2016, a docket separate from the instant appeal, even though

Appellant’s direct appeal rights were never reinstated and Attorney DeVita

neither sought nor was granted permission to file an appeal nunc pro tunc

below. Thereafter, Attorney DeVita filed an application for the consolidation

of the appeals. This Court denied the application and quashed the appeal at

704 MDA 2016, as untimely and duplicative. Appellant filed his brief with this

Court.


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        Appellant raises two issues for our review:

           WHETHER THE LOWER COURT IMPOSED AN ILLEGAL
           SENTENCE WHEN IT STATED IN THE SENTENCING ORDER
           THAT IT WAS IMPOSING A SENTENCE ON 18 PA.C.S.A §
           2702(A)(1), A FIRST DEGREE FELONY, WHEN [APPELLANT]
           HAD PLED [NOLO CONTENDERE] TO 18 PA.C.S.A. §
           2702(A)(4), A SECOND DEGREE FELONY?

           WHETHER THE LOWER COURT ERRED WHEN IT FAILED TO
           HONOR [APPELLANT’S] PLEA AGREEMENT WITH THE
           COMMONWEALTH THAT [APPELLANT’S] SENTENCE WOULD
           BE TWO YEARS?

Appellant’s Brief, at 4.

        Before we address the merits of Appellant’s issues on appeal, we must

first determine whether Appellant has preserved his claims for our review.

Failure to file a Rule 1925(b) statement generally constitutes a waiver of all

issues. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). In

Lord, our Supreme Court established a bright line rule that provided, “in

order to preserve their claims for appellate review, [a]ppellants must comply

whenever the trial court orders them to file a Statement of [Errors]

Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a

1925(b) statement will be deemed waived.” Id.

        Our Supreme Court, however, amended Rule 1925 to provide a

remedy where a criminal appellant’s counsel fails to file a court-ordered Rule

1925(b) statement.2 Section 1925(c)(3) provides:

____________________________________________


2
    Rule 1925 was amended on May 10, 2007, and again on January 13, 2009.



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     (3) If an appellant in a criminal case was ordered to file a
     Statement and failed to do so, such that the appellate court is
     convinced that counsel has been [per se] ineffective, the
     appellate court shall remand for the filing of a Statement [nunc
     pro tunc] and for the preparation and filing of an opinion by the
     judge.

Pa.R.A.P. 1925(c)(3). In interpreting Rule 1925(c)(3), this Court has held

that counsel’s failure to file a Rule 1925(b) statement constitutes per se

ineffectiveness. See Commonwealth v. Burton, 973 A.2d 428, 431-32

(Pa. Super. 2009) (en banc).

     The complete failure to file the 1925 concise statement is per se
     ineffectiveness because it is without reasonable basis designed
     to effectuate the client’s interest and waives all issues on appeal.
     Likewise, the untimely filing is per se ineffectiveness because it
     is without reasonable basis designed to effectuate the client’s
     interest and waives all issues on appeal. Thus[,] untimely filing
     of the 1925 concise statement is the equivalent of a complete
     failure to file. Both are per se ineffectiveness of counsel from
     which appellants are entitled to the same prompt relief.

     The view that Rule 1925(c)(3) does not apply to untimely 1925
     concise statements would produce paradoxical results. The
     attorney who abandons his client by failing to file a 1925 concise
     statement would do less of a disservice to the client than the
     attorney who files a 1925 concise statement beyond the deadline
     for filing.

Id. at 432–33 (footnote omitted) (emphasis added).

     If counsel fails to file a Rule 1925(b) statement before the trial court

files a Rule 1925(a) opinion, the court in its opinion should note the per se

ineffectiveness of counsel and permit counsel to file a statement nunc pro

tunc or appoint new counsel “because a failure to comply with the order

would prohibit appellate review.” Commonwealth v. Thompson, 39 A.3d


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335, 341 n.11 (Pa. Super. 2012) (citing Burton, 973 A.2d 432 (“Filing of

Rule 1925 concise statement when ordered is a ‘prerequisite to appellate

merits review’ and is ‘elemental to an effective perfection of the appeal.’”))

      Instantly, Appellant filed pro se post-sentence motions relating to his

plea and his sentence; the court forwarded the motions to Attorney DeVita,

but counsel did nothing. Appellant filed a pro se notice of appeal, and the

court ordered a Rule 1925(b) statement, but Attorney DeVita never filed

one. Appellant filed a second pro se notice of appeal and this Court placed

Attorney DeVita on the docket as counsel and was sent an order directing

her to file a docketing statement, but counsel never filed one. This Court

issued an order remanding the appeal to the trial court for a hearing to

determine whether Attorney DeVita abandoned Appellant. After the court

determined counsel did not abandon Appellant, Attorney DeVita filed a

“notice of appeal nunc pro tunc” which she docketed at a separate docket

from the instant appeal, even though Appellant’s direct appeal rights were

never reinstated and Attorney DeVita neither sought nor was granted

permission to file an appeal nunc pro tunc below. Attorney DeVita then filed

an application for consolidation of the appeals, which this Court ultimately

denied.

      Given   Attorney    DeVita’s   consistent    and   continuous    per       se

ineffectiveness, we remand this case back to the trial court with the directive

to remove Attorney DeVita as counsel and to appoint new counsel to assist


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Appellant. See Burton, 973 A.2d at 431-33; Thompson, 39 A.3d at 341.

To restore Appellant’s constitutional rights, new counsel must promptly

review Appellant’s plea and sentence claims, file post-sentence motions nunc

pro tunc, and file an appeal, if necessary, along with a Rule 1925(b)

statement, if ordered. In other words, new counsel may file proper post-

sentence motions, and depending on the outcome, a counseled appeal.

Accordingly, Appellant can be placed in the same position he would have

been in if Attorney DeVita had performed her duties, and Appellant’s issues

may be properly preserved for the trial court and any subsequent appellate

review.

     Case remanded with instructions. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2016




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