J-S79030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

KEVIN MOBLEY

                            Appellant               No. 642 EDA 2011


             Appeal from the Judgment of Sentence August 30, 2010
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004178-2007


BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                      FILED JANUARY 11, 2017

       Kevin Mobley appeals from the judgment of sentence entered on

August 30, 2010 by the Philadelphia County Court of Common Pleas.

Because Mobley has not filed a concise statement of errors complained of on

appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), we

remand.

       On August 30, 2010, Mobley pled nolo contendere to a charge of third-

degree murder1 and was sentenced to 15 to 30 years’ incarceration.        On

September 8, 2010, Mobley filed post-sentence motions, which he had

earlier presented as pro se pre-trial motions, in part, challenging the trial



____________________________________________


       1
           18 Pa.C.S. § 2502(c).
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court’s jurisdiction to hear his case.         On February 7, 2011, the trial court

entered an order denying Mobley’s post-sentence motions.2

       On March 8, 2011, Mobley filed a timely notice of appeal. On April 7,

2011, the trial court entered an order directing Mobley to file a statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21

days. Mobley never filed a 1925(b) statement.3 The trial court did not file

an opinion in support of its order pursuant to 1925(a),4 and the judge who

denied Mobley’s post-sentence motions is no longer sitting as a judge in

Philadelphia County.

       On appeal, Mobley avers that his counsel at the time never received

the trial court’s April 7, 2011 order, because it was sent to the wrong

address.    Mobley’s Br. at 5.       Mobley further avers that “previous counsel

never noticed that a 1925(b) Order was ever entered until previous counsel




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       2
        The trial court’s February 7, 2011 order disposing of Mobley’s post-
sentence motions includes the court’s reasons for denying the motions. See
Order, 2/7/11.
       3
        The record reflects Mobley was counseled at the time he filed his
notice of appeal and at the time the trial court entered the Rule 1925(b)
order.
       4
        On July 18, 2011, the trial court sent a letter to this Court, indicating
that it would forward the record without an opinion because Judge Renee
Cardwell Hughes was no longer sitting on the bench.



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was reviewing the Philadelphia Court of Common Pleas record that was in

the file in Superior Court.” Id.5

       Before addressing the merits of Mobley’s appeal, we must first address

whether Mobley has preserved his claims for appellate review.             As the

Pennsylvania Supreme Court has stated:

           Rule 1925(b) sets out a simple bright-line rule, which
           obligates an appellant to file and serve a Rule 1925(b)
           statement, when so ordered; any issues not raised in a
           Rule 1925(b) statement will be deemed waived; the courts
           lack the authority to countenance deviations from the
           Rule’s terms; the Rule’s provisions are not subject to ad
           hoc exceptions or selective enforcement; appellants and
           their counsel are responsible for complying with the Rule’s
           requirements; Rule 1925 violations may be raised by the
           appellate court sua sponte, and the Rule applies
           notwithstanding an appellee’s request not to enforce it;
           and, if Rule 1925 is not clear as to what is required of an
           appellant, on-the-record actions taken by the appellant
           aimed at compliance may satisfy the Rule.

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).

       However, Rule 1925(c)(3) provides “a procedure for appellate courts

to rectify a criminal appellant’s failure to file a Rule 1925(b) statement”:

           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.
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       5
       We note that this matter’s unusually lengthy procedural history at
the appellate level includes the substitution of appellate counsel in 2013.




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Pa.R.A.P. 1925(c)(3); see Commonwealth v. Scott, 952 A.2d 1190, 1191-

92 (Pa.Super. 2008).      Moreover, this Court has previously found that “the

complete failure by counsel to file a Rule 1925(b) statement, as ordered, is

presumptively prejudicial and clear ineffectiveness.”     Scott, 952 A.2d at

1192.

        Our review of the record reveals that Mobley’s prior appellate counsel

was per se ineffective, because Mobley failed to file a Rule 1925(b)

statement as ordered, even after discovery of the Rule 1925(b) order in the

record. Furthermore, the trial court has not prepared an opinion pursuant to

Rule 1925(a). Therefore, pursuant to Rule 1925(c)(3), we remand for the

filing of a Rule 1925(b) statement nunc pro tunc within 30 days of this

memorandum and for the preparation of an opinion by the trial court, to be

filed with this Court within 30 days after the filing of the 1925(b) statement.

See Pa.R.A.P. 1925(c)(3).

        Case remanded for further proceedings consistent with this decision.

Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2017




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