J-S11011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 TONY BURTON                              :
                                          :
                   Appellant              :   No. 832 EDA 2018

            Appeal from the PCRA Order Entered March 14, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0005522-2012


BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                             FILED JUNE 07, 2019

      Appellant, Tony Burton, appeals from the order denying his petition filed

pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541-9546.

For the following reasons, we remand for the service of a time-stamped copy

of the Pa.R.A.P. 1925(b) statement upon the PCRA judge and the filing of a

PCRA court opinion pursuant to Pa.R.A.P. 1925(a).

      The PCRA court summarized the procedural history of this case as

follows:

            On June 27, 2014, this [c]ourt sentenced [Appellant] to five
      to ten years incarceration for possession of a firearm by a
      prohibited person and a consecutive one to two years
      incarceration for carrying a firearm without a license.        On
      September 29, 2014, this [c]ourt denied his Motion to Reconsider
      his sentence and his Suppression Motion. [Appellant] appealed
      and the Superior Court affirmed on January 12, 2016.
      Commonwealth v. Burton, 136 A.3d 1029 (Pa. Super.
      2016)(table). On October 2016, the Supreme Court denied his
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      Petition for Allowance of Appeal. Commonwealth v. Burton, 160
      A.3d 763 (Pa. 2016) (table).

             [Appellant] filed a pro se PCRA Petition on December 22,
      2016. On July 18, 2017, appointed counsel filed an Amended
      Petition. This [c]ourt determined that the issues raised in the
      Amended Petition were without merit. Pursuant to Pennsylvania
      Rule of Criminal Procedure Rule 907, a letter was sent to
      [Appellant] via certified mail to advise [Appellant] that his request
      for post-conviction relief would be denied/dismissed without
      further proceedings within 20 days. The Amended Petition was
      denied on March 14, 2018.

            On March 22, 2018, this [c]ourt received Notice that
      [Appellant] appealed to the Superior Court of Pennsylvania from
      the Order entered on March 14, 2018. On March 27, 2018, this
      [c]ourt issued an Order requiring [Appellant] to file and provide
      the undersigned with a time stamped copy of a Statement of
      Matters Complained of on Appeal no later than 21 days from the
      entry of the Order pursuant to Rule 1925(b) of the Pennsylvania
      Rules of Appellate Procedure. To date, this [c]ourt has not
      received [Appellant’s] Statement of Matters Complained of on
      Appeal.

PCRA Court Amended Opinion, 6/15/18, at 1-2 (emphasis added). The PCRA

court then stated that “[Appellant’s] failure to timely file and serve his 1925(b)

statement has resulted in the waiver of all issues on appeal.” Id. at 2.

      Appellant now presents the following issues for our review:

      I. Whether the [c]ourt erred in ruling Appellant’s claim is waived
      for failure to timely file a 1925(b) Statement of Matters
      Complained on Appeal.

      II. Whether the court erred in not granting relief on the PCRA
      petition alleging Trial/Appellate Counsel was ineffective.

Appellant’s Brief at 8.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

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PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that are

supported in the record and will not disturb them unless they have no support

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.

Super. 2014).

      We first consider the ramifications of the PCRA court’s allegations that

Appellant failed to file a Pa.R.A.P. 1925(b) statement. We are mindful that,

in Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998), our Supreme

Court held that if an appellant is directed to file a concise statement of matters

to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in

that statement are waived. In Commonwealth v. Butler, 812 A.2d 631 (Pa.

2002), the Court further expanded on the Lord holding, stating that waiver

automatically applies when a Pa.R.A.P. 1925(b) statement is not filed or if an

issue is not included in the Pa.R.A.P. 1925(b) statement, even when the

question of waiver has not been raised by the other party, and even when the

trial court has chosen to overlook the failure by addressing the issues it

assumed would be raised. However, our Supreme Court amended Pa.R.A.P.




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1925 and added a procedure for appellate courts to rectify a criminal

appellant’s failure to file a Pa.R.A.P. 1925(b) statement.

      The pertinent part of the amended rule is found in subsection (c)(3),

and provides as follows:

      (c) Remand.–

                                    * * *

      (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 addition, the Explanatory Note to subsection (c)(3)

provides the following guidance:

      This paragraph allows an appellate court to remand in criminal
      cases only when the appellant has completely failed to respond to
      an order to file a Statement. It is thus narrower than (c)(2) ….
      Prior to these amendments of this rule, the appeal was quashed if
      no timely Statement was filed or served; however, because the
      failure to file and serve a timely Statement is a failure to
      perfect the appeal, it is presumptively prejudicial and
      ‘clear’ ineffectiveness. See, e.g., Commonwealth v. Halley,
      582 Pa. 164, 172, 870 A.2d 795, 801 (2005); Commonwealth
      v. West, 883 A.2d 654, 657 (Pa. Super. 2005). Direct appeal
      rights have typically been restored through a post-conviction relief
      process, but when the ineffectiveness is apparent and per se, the
      court in West recognized that the more effective way to
      resolve such per se ineffectiveness is to remand for the
      filing of a Statement and opinion. See West, 883 A.2d at
      657.

Pa.R.A.P.   1925   at   Note   (2007)   (emphases     added).      Accordingly,

notwithstanding the decisions in Lord and Butler, pursuant to the amended

version of Pa.R.A.P. 1925, the failure by counsel to serve a Pa.R.A.P. 1925(b)


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statement, as ordered, is presumptively prejudicial and clear ineffectiveness,

and this Court is directed to remand for the filing of a Pa.R.A.P. 1925(b)

statement with the trial judge, nunc pro tunc, and for the preparation and

filing of an opinion by the lower court.

      Moreover, in Commonwealth v. Burton, 973 A.2d 428, 432 (Pa.

Super. 2009) (en banc), this Court declared, “The complete failure to file a

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.” We explained in Burton that “under the amended rule,

the remedy now for failure to file a 1925 concise statement is remand to allow

nunc pro tunc filing of the statement.” Id. at 431.

      Appellant has stated in his brief that he “disagrees with the [PCRA

c]ourt’s determination due to the electronic filing of such document that

occurred on April 5, 2018 at 7:49 a.m.” Appellant’s Brief at 13. Our review

of the certified record reflects that Appellant filed his Pa.R.A.P. 1925(b)

statement with the clerk of court’s on April 5, 2018, and the item was docketed

on that date. Although the PCRA court entered an order on March 28, 2018,

that directed Appellant to serve a time stamped copy of the Pa.R.A.P. 1925(b)

statement with the PCRA judge, there is no indication that Appellant complied

with that portion of the PCRA court’s order. Hence, we conclude that Appellant

properly filed the 1925(b) statement with the clerk of courts, but neglected to

serve a time stamped copy on the PCRA judge.


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       Thus, we are convinced that the failure of Appellant’s counsel to serve

upon the PCRA judge a time stamped copy of the Pa.R.A.P. 1925(b) statement

as directed amounts to per se ineffectiveness.               Consequently, we are

compelled to remand for Appellant’s counsel to serve upon the PCRA judge a

time-stamped copy of the Pa.R.A.P. 1925(b) statement nunc pro tunc within

ten days of the date of this memorandum, and for the preparation of a

Pa.R.A.P. 1925(a) opinion by the PCRA court, to be filed with this Court within

forty-five days thereafter.1

       Case    remanded       for   further    proceedings   consistent   with   this

memorandum. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/19




____________________________________________


1 See Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa. Super. 2008)
(retaining jurisdiction when remanding for the filing of a Pa.R.A.P. 1925(b)
statement and preparation of a trial court opinion).

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