J-S65041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FAROUK JUNINOE RIVERA,

                            Appellant                No. 1050 EDA 2014


              Appeal from the Judgment of Sentence July 8, 2013
                in the Court of Common Pleas of Monroe County
               Criminal Division at No.: CP-45-CR-0000550-2010


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 25, 2015

        Appellant, Farouk Juninoe Rivera, appeals nunc pro tunc from the

judgment of sentence imposed after a Gagnon1 hearing for a probation

violation, following an open guilty plea to unlawful use of a computer.2 We

affirm.

        The trial court summarized the procedural history of this case as

follows:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (probationer is
entitled to a “preliminary hearing . . . to determine whether there is
probable cause to believe that he has committed a violation of his [probation
(Gagnon I)], and the other a somewhat more comprehensive hearing prior
to the making of the final revocation decision [(Gagnon II)].”).
2
    18 Pa.C.S.A. § 7611(a)(1).
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           On March 5, 2010, Appellant was arrested by the Pocono
     Mountain Regional Police Department in connection with several
     fraudulent bank transactions.

            On March 12, 2010, Appellant waived his preliminary
     hearing.      Accordingly, on April 26, 2010, a [c]riminal
     [i]nformation was filed against Appellant, charging him with the
     following five counts: [u]nlawful [u]se of a [c]omputer, graded
     as a third degree felony (18 Pa.C.S.A. § 7611(a)(1)); [f]orgery—
     [u]nauthorized [a]ct in [w]riting, graded as a second degree
     felony (18 Pa.C.S.A. § 4101(a)(2)); [f]orgery—[u]tters [f]orged
     [w]riting, graded as a third degree felony (18 Pa.C.S.A. §
     4101(a)(3)[)]; [t]heft [b]y [d]eception—[f]alse [i]mpression,
     graded as a first degree misdemeanor (18 Pa.C.S.A. §
     3922(a)(1)), and; [c]omputer [t]respass—[t]ransfer of [f]unds,
     graded as a third degree felony (18 Pa.C.S.A. § 7615(a)(4)).

           On June 22, 2010, Appellant pleaded guilty to [c]ount
     [one], of the [c]riminal [i]nformation, [u]nlawful [u]se of a
     [c]omputer, in exchange for the Commonwealth’s agreement to
     nolle prosequi the remaining four charges.

           On September 1, 2010, Appellant was sentenced to a
     period of incarceration not less than eleven[-]and[-]one[-]half
     (11 ½) months nor more than twenty[-]three (23) months to be
     followed by a period of one year of probation. Additionally,
     Appellant was ordered to make restitution to PNC Bank in the
     amount of $1,022.00 and to PPL Electric Utilities in the amount
     of $700.00.

           On September 13, 2010, Appellant filed a [m]otion for
     [r]econsideration of [s]entence. After a hearing on the matter,
     said [m]otion was denied by [o]rder of [the trial c]ourt dated
     September 17, 2010 [and filed September 28, 2010].

           On October 18, 2010, the Commonwealth filed to nolle
     prosequi Counts II through V of the [c]riminal [i]nformation. By
     [o]rder of [the trial c]ourt dated October 21, 2010 [and filed
     October 22, 2010], said [m]otion was granted.

           On August 1, 2011, Appellant filed a [p]etition for [p]arole.
     After a hearing on the matter, said [m]otion was granted by
     [o]rder of [the trial c]ourt dated August 15, 2011 [and filed
     August 17, 2011].

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            On May 30, 2013, after Appellant maxed on his parole and
      was towards the end of his period of probation, Appellant was
      arrested by the Wilkes-Barre Township Police Department and
      charged with two counts each of [i]dentity [t]heft, [c]riminal
      [u]se of a [c]ommunication [f]acility, [a]ccess [d]evice [i]ssued
      to [a]nother [w]ho [d]id [n]ot [a]uthorize [u]se, and [t]heft by
      [d]eception. Appellant was incarcerated in the Luzerne County
      Correctional Facility with bail set at $10,000.00.

             On June 3, 2013, the Commonwealth filed a [p]etition for
      [v]iolation of [p]robation in connection with the above captioned
      case, alleging that Appellant’s arrest in Luzerne County violated
      the terms of his probation. A copy of this petition was served on
      Appellant’s counsel of record, the Monroe County Public
      Defender Office.

            On July 2, 2013, a Gagnon I hearing was held at which
      time [the trial c]ourt determined that there was probable cause
      to detain Appellant for a Gagnon II hearing. Said Gagnon II
      hearing was held on July 8, 2013 after which Appellant’s
      probation was revoked by [o]rder of [the trial c]ourt. Appellant
      was then sentenced to a period of incarceration not less than
      twenty[-]one (21) months nor more than forty[-]two (42)
      months with a time served credit of eleven[-]and[-]a[-]half (11
      ½) months. Throughout the course of the probation revocation
      proceedings, Appellant was represented by Attorney Jason LaBar
      of the Monroe County Public Defender Office.

(Trial Court Opinion, 5/14/14, at 1-3).

      Appellant filed a pro se petition for modification of sentence on August

6, 2013, which the trial court ordered the Monroe County Clerk of Courts to

forward to the Monroe County Public Defender Office. (See Order, 8/08/13).




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        On October 18, 2013, Appellant filed a pro se petition pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, seeking

release from custody, correction of sentence, and modification of sentence.3

        Appellant filed a second pro se PCRA petition on October 30, 2013

seeking release from custody, correction of sentence, and vacation of

sentence.4

        On November 12, 2013, the court appointed Attorney Donald M. Leeth

to represent Appellant.          Counsel filed an amended PCRA petition on

December 2, 2013.5 The PCRA court held a hearing on January 21, 2014,

and reinstated Appellant’s direct appeal rights nunc pro tunc on February 27,

2014.

        Appellant timely appealed on March 25, 2014. On March 27, 2014, the

trial court entered an order directing Appellant to file a Rule 1925(b)

statement within twenty-one days, by April 17, 2014.            See Pa.R.A.P.

1925(b).     The order advised that “any issue not properly included in the
____________________________________________


3
   Appellant claimed that the sentence following his probation violation
hearing resulted in him receiving a second sentence for the same charge he
pleaded guilty to on June 22, 2010. (See PCRA Petition, 10/18/13, at 3).
4
  Appellant claimed that he did not receive written notice of the probation
violation proceedings. (See PCRA Petition, 10/30/13, at 3).
5
  In addition to the issues raised in Appellant’s pro se petitions, counsel
asserted that “[p]rior counsel rendered ineffective assistance of counsel by
failing to pursue a [p]etition for [r]econsideration of the sentence . . . [and]
an appeal.” (Amended PCRA Petition, 12/02/13, at unnumbered page 2
¶11).



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concise statement timely filed and served pursuant to subdivision (b) shall

be deemed waived.” (Concise Statement Order, 3/27/14, at 1).

      On April 17, 2014, Appellant requested an extension within which to

file his Rule 1925(b) statement due to a delay in receiving the notes of

testimony.    (See Motion for Extension of Time, 4/17/14, at unnumbered

page 2 ¶6). The trial court granted Appellant’s motion on April 21, 2014 and

directed him to file his Rule 1925(b) statement on or before May 5, 2014.

(See Concise Statement Order, 4/21/14, at 1). Appellant failed to file his

statement timely, instead, filing it eight days late on May 13, 2014. The trial

court entered its Rule 1925(a) opinion on May 14, 2014.         See Pa.R.A.P.

1925(a).

      Appellant raises the following issues for our review:

      1.    Whether the Commonwealth failed to notify [Appellant] in
      writing of [the] probation violation charges?

      2.    Whether Appellant may challenge the discretionary aspects
      of sentencing after revocation of a split sentence?

             A.   If so, whether the sentence imposed following
             revocation of Appellant’s split sentence was
             excessive?

(Appellant’s Brief, at 4).

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

determine whether he properly preserved them for our review.                Rule

1925(b) provides, in relevant part:

      (b) Direction to file statement of errors complained of on
      appeal; instructions to the appellant and the trial court.—
      If the judge entering the order giving rise to the notice of appeal

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      (“judge”) desires clarification of the errors complained of on
      appeal, the judge may enter an order directing the appellant to
      file of record in the trial court and serve on the judge a concise
      statement of the errors complained of on appeal (“Statement”).

                                   *    *    *

            (2) Time for filing and service.—The judge shall allow the
      appellant at least 21 days from the date of the order’s entry on
      the docket for the filing and service of the Statement. Upon
      application of the appellant and for good cause shown, the judge
      may enlarge the time period initially specified or permit an
      amended or supplemental Statement to be filed. . . . In
      extraordinary circumstances, the judge may allow for the filing
      of a Statement or amended or supplemental Statement nunc pro
      tunc.

             (3) Contents of order.—The judge’s order directing the
      filing and service of a Statement shall specify:

            (i) the number of days after the date of entry of the
            judge’s order within which the appellant must file
            and serve the Statement;

            (ii) that the Statement shall be filed of record;

            (iii) that the Statement shall be served on the judge
            pursuant to paragraph (b)(1);

            (iv) that any issue not properly included in the
            Statement timely filed and served pursuant to
            subdivision (b) shall be deemed waived.

            4) Requirements; waiver.

                                  *   *    *
                   (vii) Issues not included in the Statement
            and/or not raised in accordance with the provisions
            of this paragraph (b)(4) are waived.

Pa.R.A.P. 1925(b)(2), (3), (4)(vii).

      An en banc panel of this Court has held:


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J-S65041-14


            Our    Supreme       Court    intended   the    holding  in
      [Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)] to operate
      as a bright-line rule, such that “failure to comply with the
      minimal requirements of Pa.R.A.P. 1925(b) will result in
      automatic waiver of the issues raised.” Commonwealth v.
      Schofield, . . . 888 A.2d 771, 774 ([Pa.] 2005) (emphasis
      added); see also [Commonwealth v.] Castillo, 888 A.2d
      [775, 780 (Pa. 2005)]. Given the automatic nature of this type
      of waiver, we are required to address the issue once it comes to
      our attention. Indeed, our Supreme Court does not countenance
      anything less than stringent application of waiver pursuant to
      Rule 1925(b): “[A] bright-line rule eliminates the potential for
      inconsistent results that existed prior to Lord, when . . .
      appellate courts had discretion to address or to waive issues
      raised in non-compliant Pa.R.A.P. 1925(b) statements.” Id.
      Succinctly put, it is no longer within this Court’s discretion to
      ignore the internal deficiencies of Rule 1925(b) statements.

                                  *    *    *

             Stated simply, it is no longer within this Court’s discretion
      to review the merits of an untimely Rule 1925(b) statement
      based solely on the trial court’s decision to address the merits of
      those untimely raised issues. Under current precedent, even if a
      trial court ignores the untimeliness of a Rule 1925(b) statement
      and addresses the merits, those claims still must be considered
      waived: Whenever a trial court orders an appellant to file a
      concise statement of [errors] complained of on appeal pursuant
      to Rule 1925(b) the appellant must comply in a timely manner.

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d

222, 224-25 (Pa. Super. 2014) (en banc) (emphases in original) (some

citations and quotation marks omitted).

      Here, the record reflects that on March 27, 2014, the trial court issued

an order in technical compliance with Rule 1925(b) requiring Appellant to file

a statement “within twenty-one (21) days from the date of this [o]rder’s

entry on the docket[.]”    (Concise Statement Order, 3/27/14, at 1).         The

order provided that “any issue not properly included in the concise

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statement timely filed and served pursuant to subdivision (b) shall be

deemed waived.” (Id.).

       On April 17, 2014, due to a delay in receiving the notes of testimony,

Appellant requested an extension within which to file his Rule 1925(b)

statement.     (See Motion for Extension of Time, 4/17/14, at unnumbered

page 2). The trial court granted him an extension to May 5, 2014. (See

Concise Statement Order, 4/21/14, at 1).         Appellant filed his untimely

concise statement eight days late, on May 13, 2014.

       Based on this record, because Appellant did not timely file his Rule

1925(b) statement, we conclude that he failed to comply with the minimal

requirements of Rule 1925(b). Consequently, he has waived all of his issues

on appeal.     See Pa.R.A.P. 1925(b)(4)(vii); see also Greater Erie Indus.

Dev. Corp., supra at 224-25. Accordingly, we may not address the merits

of those claims. See Greater Erie Indus. Dev. Corp., supra at 227.6

       Judgment of sentence affirmed.




____________________________________________


6
   We note that our “Rules of Appellate Procedure provide for limited
instances in which appellate courts may remand [criminal] cases to trial
courts in order to cure defects in Rule 1925 practice.” Greater Erie Indus.
Dev. Corp., supra at 227 n.7. Here, none of the circumstances are
applicable. See Pa.R.A.P. 1925(c).



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J-S65041-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/2015




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