J-S26028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellee

                       v.

RAYMOND LEE WERTZ, JR.

                             Appellant                        No. 1504 MDA 2014


               Appeal from the PCRA Order of September 8, 2014
                 In the Court of Common Pleas of Berks County
                Criminal Division at No: CP-06-CR-0002150-2013


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                                        FILED MAY 15, 2015

       Raymond Lee Wertz, Jr., appeals the September 8, 2014 order that

dismissed Wertz’s petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.                 Because Wertz has not

preserved any issues for appeal, we affirm.

       On October 10, 2013, the Commonwealth filed a criminal information

charging Wertz with over 100 total counts, including multiple charges each

of   burglary,   theft,     receiving    stolen   property,   criminal   trespass,   and

conspiracy.1     On November 1, 2013, Wertz pled guilty to sixteen counts,

including eleven counts of burglary, one count of conspiracy to commit


____________________________________________


1
     18 Pa.C.S.A. §§ 3502(a)(2) and (4), 3921(a), 3925(a), 3503(a)(1)(i),
and 903 (3502(a)(2), 3502(a)(4), 3921(a), 3925(a)), respectively.
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burglary, three counts of theft by unlawful taking, and one count of

conspiracy to commit theft. The remaining counts were dismissed.

       On November 1, 2013, the trial court sentenced Wertz to a negotiated

sentence of fourteen to forty months’ incarceration on six counts of burglary

with each sentence to run consecutively to each other. Wertz was sentenced

to six to twenty-four months’ incarceration on each remaining count of

burglary and one of the theft counts; and to twelve to twenty-four months’

incarceration each on two counts of theft, conspiracy to commit burglary,

and conspiracy to commit theft. Each of those sentences was ordered to run

concurrently with the first burglary sentence. Therefore, Wertz received an

aggregate sentence of seven to twenty years’ incarceration.2 Wertz did not

file a direct appeal.

       On April 24, 2014, Wertz filed a timely PCRA petition, in which he

alleged that his counsel was ineffective.        From the petition, it is unclear

whether Wertz was arguing that his counsel did not inform him that some of

his sentences were to run consecutively or that his counsel should have

struck a better bargain.         On April 29, 2014, the PCRA court appointed

counsel.

       On July 11, 2014, counsel filed a “no merit” letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

____________________________________________


2
     Wertz also was required to pay restitution in the amount of
$11,610.18.



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v. Finley, 550 A.2d 213 (Pa. Super. 1988), in which counsel sought to

withdraw from representing Wertz.              Counsel concluded that there were no

non-frivolous issues to be raised.             On August 6, 2014, the PCRA court

granted counsel’s request to withdraw and issued notice to Wertz of the

court’s intent to dismiss his PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907. On September 8, 2014, the PCRA court dismissed Wertz’s

petition.

       Prior to the actual dismissal of his petition, on September 3, 2014,

Wertz filed a notice of appeal with this Court. The notice was transmitted to

the clerk of courts of Berks County and filed there on September 8, 2014.3

On September 10, 2014, the PCRA court ordered Wertz to file a concise

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

Wertz never filed a concise statement.             On November 5, 2014, the PCRA

court filed a statement in lieu of an opinion pursuant to Pa.R.A.P. 1925(a), in


____________________________________________


3
      We recognize that Wertz filed his notice of appeal prematurely.
However, in similar cases we still have addressed a premature appeal when
“the subsequent actions [of the] court fully ripened it.” Commonwealth v.
Cooper, 27 A.3d 994, 1004 (Pa. 2011). See also Commonwealth v.
Little, 879 A.2d 293, 302 (Pa. Super. 2005) (permitting premature appeal
of petition for reconsideration when order denying petition was entered
between notice of appeal and consideration by appellate court);
Commonwealth v. Hamaker, 541 A.2d 1141, 1143 (Pa. Super. 1988)
(permitting a premature appeal of post-trial motions and citing Pa.R.A.P.
905 (“A notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.”)).



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which the court concluded that any and all issues that Wertz may pursue

were waived for failure to file a concise statement.

      Rule 1925(b) requires an appellant to file a concise statement if

ordered to do so by the presiding judge. Any issues not preserved in the

concise statement are waived.        Pa.R.A.P. 1925(b)(4)(viii).     Regarding

waiver, we have said:

      In 1998, our Supreme Court held that “in order to preserve their
      claims for appellate review, Appellants must comply whenever
      the trial court orders them to file a Statement of [Errors]
      Complained of on Appeal pursuant to                 Rule    1925.”
      Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).
      Subsequently, in Commonwealth v. Castillo, 888 A.2d 775
      (Pa. 2005), the Supreme Court affirmed its holding in Lord,
      ruling that a failure to file a 1925(b) statement within [the time
      proscribed] after entry of an order requesting the statement,
      regardless of the length of the delay, results in automatic
      waiver.

      The Supreme Court amended Rule 1925 in 2007. The current
      version extends the 14–day filing period of the statement to a
      minimum 21–day filing period and grants the judge, upon
      application of the appellant and for good cause shown, authority
      to enlarge the time period initially specified, or, in extraordinary
      cases, to allow for filing of a statement nunc pro tunc.
      Additionally, the Supreme Court added a new procedure under
      Rule 1925(c) for appellate courts to remedy a criminal
      appellant’s failure to file a Rule 1925(b) statement. Subsection
      1925(c)(3) provides:

         (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).     The official note to subsection (c)(3)
      further states:


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         Paragraph (c)(3) 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[.] 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[.] 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.

      Note to Pa.R.A.P. 1925.

      Paragraph (c)(3) of Rule 1925 codifies the procedure established
      by this Court in Commonwealth v. West, 883 A.2d 654 (Pa.
      Super. 2005). Note to Pa.R.A.P. 1925; see Commonwealth v.
      Hill, 16 A.3d 484, 496 n. 15 (Pa. 2011). “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.” Note to Pa.R.A.P. 1925; see West,
      supra at 657.

Commonwealth v. Thompson, 39 A.3d 335, 338-39 (Pa. Super. 2012)

(citations modified, footnotes omitted).

      Instantly, the PCRA court ordered Wertz to file a concise statement.

Wertz did not do so.     Therefore, he has failed to preserve any issues.

Further, because Wertz was representing himself, he does not benefit from

the remand procedure outlined in Pa.R.A.P.1925(c)(3).       As noted above,

Rule 1925(c)(3) is designed to rectify per se ineffective assistance of

counsel. Because Wertz does not have counsel, that rule has no applicability




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here.    Therefore, we are constrained to find that his issues on appeal are

waived.4 See Lord, supra.

        Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2015




____________________________________________


4
      Had we not found that Wertz’s issues were waived for failure to file a
concise statement, we would have found Wertz’s issues waived for failure to
comply with briefing requirements.       Wertz’s brief does not contain a
statement of jurisdiction, Pa.R.A.P. 2114; a statement of questions involved,
Pa.R.A.P. 2116; a statement of the case, Pa.R.A.P. 2117; or a summary of
argument, Pa.R.A.P. 2118. Most importantly, Wertz does not cite to any
relevant legal authority nor develop a legal argument which results in
waiver. See Pa.R.A.P. 2119(a); Commonwealth v. Johnson, 985 A.2d
915, 924 (Pa. 2009).



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