J-S38005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

STEVEN ALLEN MUMMERT

                        Appellant                   No. 1635 MDA 2014


    Appeal from the Judgment of Sentence entered on August 28, 2014
              In the Court of Common Pleas of Adams County
         Criminal Division at Nos.:   CP-01-CR-0000291-2014
                                      CP-01-CR-0000528-2013
                                      CP-01-CR-0000882-2013


BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                             FILED JUNE 22, 2015

     Steven Mummert appeals his August 28, 2014 judgment of sentence,

which was entered at the three docket numbers noted above, and consisted

of one new sentence and two sentences that arose from the probation

violations that occurred as a result of the new crime. After careful review,

we remand to the trial court pursuant to Pennsylvania Rule of Appellate

Procedure 1925(c)(3) for the due completion of the procedure prescribed by

Rule 1925.

     It is sufficient to recount the following procedure, without reference to

the underlying factual basis that resulted in conviction, because the

procedural history of this case compels our disposition. On August 28, 2014,

the trial court entered a judgment of sentence as follows:     At 291-2014,
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which involved a negotiated guilty plea to forgery, the trial court imposed a

sentence of thirty-six months’ probation, to run consecutively to any other

sentences for which Mummert was under supervision.                  Mummert’s guilty

plea at 291-2014 resulted in the revocation of probationary sentences

imposed at two prior dockets and resentencing upon those convictions. At

528-2013,      the   trial   court   revoked       Mummert’s   prior   sentence   and

resentenced him to one to five years’ incarceration. At 882-2013, the trial

court revoked Mummert’s prior sentence and resentenced him to serve one

to five years’ incarceration, said sentence to run concurrently with the

sentence imposed at 528-2013.

      On September 26, 2014, Mummert filed a timely notice of appeal.

Thereafter, the trial court directed Mummert to file a concise statement of

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

Mummert never complied, and, on December 23, 2014, the trial court issued

an opinion pursuant to Rule 1925(a).                 Therein, the trial court noted

Mummert’s failure to provide a concise statement and indicated that the

court was unable to discern what issues Mummert might intend to raise on

appeal. Consequently, the trial court opined that the instant appeal should

be quashed.      See Trial Court Opinion, 12/23/2014, at 3 (citing Everett

Cash Mut. Ins. Co. v. T.H.E. Ins. Co., 804 A.2d 31 (Pa. Super. 2002)).

      On February 26, 2015, counsel for Mummert filed in this Court a

“Motion for Leave to File Concise Statement of Matters Complained of on

Appeal Nunc Pro Tunc.” Therein, counsel averred as follows:

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      1.   [Mummert] was directed to file a Concise Statement of
      Matters Complained of on Appeal by the Court of Common Pleas,
      pursuant to Pa.R.A.P. 1925(b) but did not. . . .

      2.    Undersigned counsel is responsible for this error. This
      case was appealed to this Court in his absence (but on his
      behalf) by the Public Defender’s Office[,] and the file was
      consequently lost in the administrative shuffle.   It was not
      discovered until another appellant[’s] brief was timely filed
      yesterday, February 24th, 2015.

      3.    It is therefore respectfully requested that this Honorable
      Court grant leave for [Mummert] to file a Concise Statement to
      the lower court so that it has [the] opportunity to comment on
      the sole issue: direction in revocation sentencing.

      When counsel fails to file a Rule 1925(b) concise statement after the

trial court directs counsel to do so, counsel is constitutionally ineffective per

se.   Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa. Super. 2008).

For this reason, effective July 25, 2007, our Supreme Court amended Rule

1925 to establish a clear procedure for this Court to follow when counsel

fails to file a concise statement on behalf of a criminal defendant.        Rule

1925(c)(3) details the procedure to follow in that circumstance.

      Rule 1925. Opinion in Support of Order

                                    ****

      (c)   Remand.

                                    ****

      (3) If an appellant in a criminal case was ordered to file a
      [concise statement of the errors complained of on appeal] 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 [s]tatement nunc pro tunc and for the
      preparation and filing of an opinion by the judge.




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Pa.R.A.P. 1925(c)(3).    “The complete failure to file the [Rule 1925(b)]

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.”

Commonwealth v. Thompson, 39 A.3d 335, 339 (Pa. Super. 2012).

      As noted, the trial court ordered Mummert to file a Rule 1925(b)

statement and, by his own admission, counsel for Mummert simply failed to

do so. Thus, counsel was per se ineffective for failing to file a Rule 1925(b)

statement. Furthermore, for that reason, the trial court explicitly declined to

discuss the merits of any appellate issues that Mummert may have sought to

raise in this matter.   Accordingly, pursuant to Rule 1925(c)(3), we grant

counsel’s motion and remand this case to the trial court for due completion

of the procedures dictated by Rule 1925.

      Motion for Leave to File Concise Statement of Matters Complained of

on Appeal Nunc Pro Tunc granted. Case remanded. Jurisdiction retained.




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