J-S66024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
ROBERT EARL MORGAN,                      :
                                         :
                        Appellant        :     No. 331 MDA 2014


          Appeal from the PCRA Order Entered January 16, 2014,
           In the Court of Common Pleas of Lackawanna County,
            Criminal Division, at Nos. CP-35-CR-0002059-2010
                       and CP-35-CR-0003420-2010.


BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED NOVEMBER 25, 2014

      Appellant, Robert Earl Morgan, appeals from the order dismissing his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546.     For the following reasons, we remand for the

filing of a Pa.R.A.P. 1925(b) statement and a PCRA court opinion pursuant to

Pa.R.A.P. 1925(a).

      We summarize the procedural history of this case as follows.       In a

criminal information filed at docket number 2010 CR 2059, Appellant was

charged with one count each of possession of a controlled substance,

possession of a controlled substance with intent to deliver, possession of

drug paraphernalia, and criminal conspiracy. In a criminal information filed

at docket number 2010 CR 3420, Appellant was charged with one count
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each of delivery    of a controlled    substance   and   criminal use   of   a

communication facility. On December 17, 2010, Appellant pled guilty to one

count each of possession of a controlled substance with intent to deliver,

delivery of a controlled substance, and criminal use of a communication

facility. On March 15, 2011, the trial court sentenced Appellant to serve an

aggregate term of incarceration of seventy-three to 156 months, to be

followed by six years of probation. Thereafter, Appellant filed a motion for

reconsideration of sentence.    On July 22, 2011, the trial court granted

Appellant’s motion to reconsider, vacated its previously imposed sentence,

and sentenced Appellant to an aggregate term of incarceration of sixty-six to

144 months followed by six years of probation. Appellant did not file a direct

appeal.

      On February 14, 2012, Appellant, acting pro se, filed the instant PCRA

petition.   On June 11, 2012, the trial court appointed PCRA counsel to

represent Appellant.   On June 11, 2013, appointed counsel filed with the

PCRA court a petition to withdraw as counsel, a Turner/Finley letter,1 and

a copy of the letter addressed to Appellant advising Appellant of counsel’s

request to withdraw and Appellant’s right to retain private counsel or to

proceed pro se.    On January 16, 2014, the PCRA court entered orders




1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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dismissing Appellant’s PCRA petition and granting counsel permission to

withdraw. Appellant, pro se, filed a timely notice of appeal.

      On February 27, 2014, the PCRA court appointed counsel to represent

Appellant in this appeal. In addition, the PCRA court’s order of February 27,

2014, directed that a Pa.R.A.P. 1925(b) statement be filed within twenty-one

days. Thus, Appellant’s Pa.R.A.P. 1925(b) statement was due on or before

March 20, 2014. Thereafter, in an order dated April 1, 2014, and entered on

April 2, 2014, the PCRA court granted PCRA counsel an extension of time of

twenty-one    days    in   which   to   file    a   Pa.R.A.P.   1925(b)   statement.

Accordingly, Appellant’s Pa.R.A.P. 1925(b) statement was due on or before

April 23, 2014.      However, Appellant’s counsel untimely filed a Pa.R.A.P.

1925(b) statement on June 16, 2014. The PCRA court has not prepared an

opinion pursuant to Pa.R.A.P. 1925(a).2

      Appellant now presents the following issue for our review:

      I. WHETHER THE APPELLANT’S PCRA RIGHTS WERE DENIED
      WHERE HIS PCRA WAS DISMISSED PURSUANT TO A TURNER-
      FINLEY LETTER, HOWEVER, THE LOWER COURT FAILED TO GIVE
      NOTICE OF WHY IT WAS DISMISSING THE PCRA AND FAILED TO
      GIVE THE APPELLANT TIME IN WHICH TO ANSWER THE
      PROPOSED DISMISSAL?



2
  We note that in a letter dated April 7, 2014, the Deputy Prothonotary of
the Superior Court alerted Judge Michael J. Barrasse of a “missing item” in
the certified record required by Pa.R.A.P. 1925(a), that being the lower
court’s Pa.R.A.P. 1925(a) opinion, and asked Judge Barrasse to submit a
supplemental record with the missing item by April 21, 2014. Such has
never been received by this Court.

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Appellant’s Brief at 5. Before we address the merits of the issue presented,

we first consider the ramifications of Appellant’s failure to file a timely

Pa.R.A.P. 1925(b) statement and the lower court’s failure to prepare a

Pa.R.A.P. 1925(a) opinion.

      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. 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:

            (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




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     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).   The official note to subsection (c)(3) provides the

following additional 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),
     above. 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. The
     procedure set forth in West is codified in paragraph (c)(3). As
     the West court recognized, this rationale does not apply when
     waiver occurs due to the improper filing of a Statement. In such
     circumstances, relief may occur only through the post-conviction
     relief process and only upon demonstration by the appellant
     that, but for the deficiency of counsel, it was reasonably
     probable that the appeal would have been successful.             An
     appellant must be able to identify per se ineffectiveness to
     secure a remand under this section, and any appellant who is
     able to demonstrate per se ineffectiveness is entitled to a
     remand. Accordingly, this paragraph does not raise the concerns
     addressed in Johnson v. Mississippi, 486 U.S. 578, 588-89
     (1988) (observing that where a rule has not been consistently or
     regularly applied, it is not--under federal law--an adequate and
     independent      state    ground     for   affirming   petitioner’s
     conviction.)[.]

Pa.R.A.P. 1925 at Note (2007). Accordingly, notwithstanding the decisions

in Lord and Butler, pursuant to the amended version of Pa.R.A.P. 1925, the


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complete failure by counsel to file a Pa.R.A.P. 1925(b) 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

nunc pro tunc and for the preparation and filing of an opinion by the lower

court.

         An en banc panel of this Court subsequently clarified, in the following

discussion, that the same rationale applies for untimely filings:

                The complete failure to file the [Pa.R.A.P.] 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 [Pa.R.A.P.] 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.

                                       ***

               [I]f there has been an untimely filing, this Court may
         decide the appeal on the merits if the trial court had adequate
         opportunity to prepare an opinion addressing the issues being
         raised on appeal.

Commonwealth v. Burton, 973 A.2d 428, 432-433 (Pa. Super. 2009) (en

banc) (footnote omitted).

         Instantly, appointed counsel was ineffective per se because he filed

the Pa.R.A.P. 1925(b) statement in an untimely manner. Burton, 973 A.2d

at 433. In addition, the PCRA court failed to prepare an opinion pursuant to




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Pa.R.A.P. 1925(a). Consequently, we are compelled to remand for the filing

of a Pa.R.A.P. 1925(b) statement nunc pro tunc within thirty days of the

date this memorandum decision is filed, 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.3

      Remanded for further proceedings consistent with this memorandum.

Panel jurisdiction retained.




3
  See Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa. Super. 2008)
(retaining jurisdiction when remanding for the filing of a Rule 1925(b)
statement and preparation of a trial court opinion).

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