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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL O. ROBERTS PALADINO

                            Appellant                 No. 1468 WDA 2015


              Appeal from the Judgment of Sentence July 29, 2015
                In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0000437-2015


BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                  FILED JUNE 09, 2016

        Michael O. Roberts Paladino appeals from the judgment of sentence

imposed on July 29, 2015, in the Court of Common Pleas of Beaver

County.1,2 On April 14, 2015, Roberts Paladino pleaded guilty to charges of

sexual abuse of children – distribution of child pornography (3 counts),
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Roberts Paladino purports to appeal from the August 26, 2015, order
denying his post-sentence motion. We have corrected the caption to reflect
that Roberts Paladino’s appeal properly lies from the judgment of sentence
imposed on July 29, 2015. Commonwealth v. Dreves, 2003 PA Super 503,
839 A.2d 1122, 1125 n.1 (Pa. Super. 2003) (en banc).
2
  On November 4, 2015, this Court issued a per curiam order, directing
compliance with Pa.R.A.P. 3517 (filing of docketing statement). Thereafter,
on November 25, 2015, this Court dismissed this appeal for failure to file a
docketing statement. Counsel then sought reinstatement of the appeal,
which this Court granted on December 14, 2015.
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sexual abuse of children – possession of child pornography (10 counts), and

criminal use of communication facility.3         On July 29, 2015, the trial court

held an assessment hearing, found Roberts Paladino to be a Sexually Violent

Predator (SVP), and sentenced Roberts Paladino to 30 to 84 months’

incarceration, and seven years’ probation.          On August 13, 2015, Roberts

Paladino filed a post-sentence motion challenging his sentence that fell

beyond the aggravated range of the sentencing guidelines.4 The trial court

denied the motion on August 26, 2015, and Roberts Paladino filed a notice of

appeal on September 18, 2015. Thereafter, counsel filed Roberts Paladino’s

brief on appeal as an Anders5 brief. As will be discussed below, we remand

for counsel to file, within 30 days of the date the record is transmitted to the

trial court, either (1) a Pa.R.A.P. 1925(b) statement of matters complained

of on appeal, in which case the trial court is directed to file a Rule 1925(a)

opinion within 30 days thereafter, and counsel must file an advocate’s brief

with this Court within 30 days of the filing of the trial court’s opinion, or (2)

____________________________________________


3
    18 Pa.C.S. §§ 6312(c), 6312(d), and 7512(a), respectively.
4
  In part, Roberts Paladino’s post-sentence motion states: “It is the position
of [Roberts Paladino] that the Court’s sentence of 30 months to 84 months
on Counts 1, 2, and 3 unlawfully extend the minimum sentence beyond the
standard and aggregate range.” Roberts Paladino’s Post-Sentence Motion,
8/13/2015, at ¶4.
5
 Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).




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a statement of intent to file an Anders brief, pursuant to Rule 1925(c)(4), in

which case the trial court may decide whether an opinion is necessary or

immediately transmit the record back to this Court; counsel must also file

with this Court within 30 days thereafter a petition for leave to withdraw

from representation evidencing compliance with notice requirements for

withdrawal; and counsel must amend the Anders brief to include a Rule

2119(f) statement.

       Before we address counsel’s Anders brief, we must consider whether

this appeal is timely. We lack jurisdiction to consider untimely appeals, and

we may raise such jurisdictional issues sua sponte. See Commonwealth v.

Burks, 102 A.3d 497, 500 (Pa. Super. 2014).

       As already noted, sentencing occurred on July 29, 2015. Roberts

Paladino filed his post-sentence motion on August 13, 2015, after the 10-

day period provided for filing a post-sentence motion.      See Pa.R.Crim.P.

720(A)(1).6 As such, the post-sentence motion was untimely.

       With regard to the effect of a post-sentence motion on the timeliness

of an appeal, this Court has explained:

       In cases where no post-sentence motions (or Commonwealth’s
       motions to modify sentence) are filed, a defendant must file an
       appeal within 30 days of imposition of sentence in open court.
       Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(c)(3). If a defendant files
____________________________________________


6
  Rule 720(A)(1) provides: “Except as provided in paragraphs (C) and (D), a
written post-sentence motion shall be filed no later than 10 days after
imposition of sentence.”



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      a timely post-sentence motion, the appeal period does not
      begin to run until the motion is decided. Pa.R.Crim.P. 720(A)(2);
      Pa.R.A.P. 903(a). Except in circumstances not applicable here, a
      defendant must file a post-sentence motion within ten days of
      imposition of sentence. Pa.R.Crim.P. 720(A)(1).

      An untimely post-sentence motion does not toll the appeal
      period. Commonwealth v. Green, 2004 PA Super 433, 862
      A.2d 613, 618 (Pa. Super. 2004) (en banc) (“[T]he time for filing
      an appeal can be extended beyond 30 days after the imposition
      of sentence only if the defendant files a timely post-sentence
      motion.”).

                                    ****

      Under Commonwealth v. Dreves, 2003 PA Super 503, 839
      A.2d 1122, 1128 (Pa. Super. 2003) (en banc), a post-sentence
      motion nunc pro tunc may toll the appeal period, but only if two
      conditions are met. First, within 30 days of imposition of
      sentence, a defendant must request the trial court to consider a
      post-sentence motion nunc pro tunc. “The request for nunc pro
      tunc relief is separate and distinct from the merits of the
      underlying post-sentence motion.” Id. at 1128-29. Second, the
      trial court must expressly permit the filing of a post-sentence
      motion nunc pro tunc, also within 30 days of imposition of
      sentence. Id. at 1128 & n.6. “If the trial court does not
      expressly grant nunc pro tunc relief, the time for filing an appeal
      is neither tolled nor extended.” Id. at 1128. Moreover, “[t]he
      trial court’s resolution of the merits of the late post-sentence
      motion is no substitute for an order expressly granting nunc pro
      tunc relief.” Id. at 1129.


Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015)

(emphasis in original).

      Here, because Roberts Paladino’s post-sentence motion was untimely,

it did not extend the 30-day appeal period from the July 29, 2015 judgment

of sentence.    See Calaldi, supra, citing Green.          Moreover, Roberts

Paladino’s motion cannot be regarded as a post-sentence motion nunc pro


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tunc since the motion provided no explanation for the late filing and did not

request the trial court to consider the motion nunc pro tunc. In addition, the

trial court did not expressly grant nunc pro tunc relief and, therefore, its

decision on the merits does not qualify as an order expressly granting the

right to file a post-sentence motion nunc pro tunc.

       The record, however, reveals extraordinary circumstances exist here

that excuse Roberts Paladino’s late filing of the appeal. In Commonwealth

v. Patterson, 940 A.2d 493, 499–500 (Pa. Super. 2007), this Court held

that a breakdown in the court’s operation occurred where the trial court

denied the defendant’s untimely post-sentence motion within the appeal

period, but failed to apprise him he still had 15 days to file an appeal.   Here,

as in Patterson, the trial court’s August 26, 2015, order denying Roberts

Paladino’s untimely post-sentence motion was filed before the expiration of

the 30-day appeal period, and “did not notify [a]ppellant that, due to the

late filing of his post-sentence motion, he had to file an appeal within thirty

days of the imposition of sentence.” Patterson, supra at 499. See Order,

8/26/2015.7 Therefore, we are constrained to find that “a court breakdown

occurred,” id., and will not quash this appeal.
____________________________________________


7
  The trial court’s order denying Roberts Paladino’s post-sentence motion
states:

       AND NOW, this is hereby Ordered and Directed that the Motion is
       denied. [Roberts Paladino] understood when he entered his
       guilty pleas that he was exposed to 98 years[’] incarceration on
(Footnote Continued Next Page)


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      At the outset of our review, however, we detect numerous areas of

concern that are cause for remand prior to further review, namely, counsel’s

failure to preserve issues for appeal, counsel’s failure to satisfy the

requirements of Anders, and counsel’s failure to include a Pa.R.A.P. 2119(f)

statement in the Anders brief. We address these deficiencies sequentially.

      First, counsel for Roberts Paladino failed to comply with the trial

court’s September 21, 2015, order to file a concise statement of errors

complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b). The trial court has opined that due to this omission “all

issues are deemed waived.” Trial Court Order, 11/04/2015.

      It is well settled that a defendant’s failure to comply with the court’s

order to file a concise statement in compliance with Rule 1925 generally

results in waiver of all issues on appeal. See Commonwealth v. Lord, 719

A.2d 306 (Pa. 1998); Commonwealth v. Castillo, 888 A.2d 775 (Pa.

2005). However, where a criminal defendant’s issues are waived on direct

appeal under Lord due to his attorney’s failure to file a Rule 1925(b)

statement, it is presumed that the defendant suffered per se ineffectiveness.

Castillo, supra at 780. In this regard, Rule 1925 provides:



                       _______________________
(Footnote Continued)

      these 14 separate counts.     The sentence imposed was not
      “unlawful” as the motion suggests.

Order, 8/26/2015.



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      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).

      Pursuant to the recent amendments to Rule 1925, if counsel intends to

submit an Anders brief, the proper procedure is provided in Pa.R.A.P.

1925(c)(4). Therefore, at the time the trial court issued its order to file a

concise statement, counsel could have either (1) complied with the court’s

order and filed a Rule 1925(b) statement, or (2) filed a statement of intent

to file an Anders brief. Here, counsel’s failure to file a Rule 1925 statement

constitutes   per   se   ineffectiveness   and   deprives   Roberts   Paladino   of

meaningful review of his appeal.

      Under these circumstances, the most effective means to restore a

defendant’s rights on appeal is to remand for counsel to comply with the

court’s Rule 1925(b) order.      See Commonwealth v. McBride, 957 A.2d

752 (Pa. Super. 2008) (where counsel failed to file court-ordered Pa.R.A.P.

1925(b) statement and filed a brief pursuant to Anders, remand required

for filing of concise statement followed by preparation of trial court opinion

or a statement of intent to file an Anders brief in lieu of filing a concise

statement). Therefore, we must remand for either:




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        (1)   Counsel’s filing of a concise statement nunc pro tunc and
              the preparation of an opinion by the trial court,8 to be
              followed by counsel’s filing of an advocate’s brief in this
              Court, or

        (2)   Counsel’s filing of a statement of intent to file an Anders
              brief pursuant to Pa.R.A.P. 1925(c)(4).

        Secondly, we note that Roberts Paladino’s counsel has not complied

with the requirements of Anders.               “When faced with a purported Anders

brief, this Court may not review the merits of any possible underlying issues

without first examining counsel’s request to withdraw.” Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).

        Pursuant to Anders and Commonwealth v. Santiago, 978 A.2d 349

(Pa. 2009), the procedural requirements counsel must satisfy in requesting

to withdraw from representation are, as follows:

        Counsel must: 1) petition the court for leave to withdraw stating
        that, after making a conscientious examination of the record,
        counsel has determined that the appeal would be frivolous; 2)
        furnish a copy of the brief to the defendant; and 3) advise the
        defendant that he or she has the right to retain private counsel or
        raise additional arguments that the defendant deems worthy of the
        court's attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). Substantial compliance with these requirements is

sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super.

2007).


____________________________________________


8
    See Pa.R.A.P. 1925(b), (c)(3).



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      Santiago further requires that counsel’s Anders brief must:

      (1) provide a summary of the facts and procedural history, with
      citations to the record; (2) refer to anything in the record that
      counsel believes arguably supports the appeal; (3) set forth
      counsel’s conclusion that the appeal is frivolous; and (4) state
      counsel’s reasons for concluding the appeal is frivolous. Counsel
      should articulate the relevant facts of record, controlling case
      law, and/or statutes on point that have led to the conclusion that
      the appeal is frivolous.

Cartrette, supra at 1032 (citation omitted).

      Further, counsel must provide a copy of the Anders brief and petition

to withdraw to his client, together with a letter that advises his client of the

right to:

      (1) retain new counsel to pursue the appeal; (2) proceed pro se
      on appeal; or (3) raise any points that the appellant deems
      worthy of the court[’]s attention in addition to the points raised
      by counsel in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotations and citation omitted). See also Commonwealth v. Millisock,

873 A.2d 748, 751–752 (Pa. Super. 2005) (“[T]he prudent course is to

require counsel henceforth to attach to their petition to withdraw a copy of

the letter sent to their client advising him or her of their rights. Such a

requirement ensures proper notification to the client and relieves this Court

of having to make any assumptions..., a burden inappropriate for a

reviewing court.”).

      Instantly, although counsel has filed an Anders brief, there is no

separate petition to withdraw. We recognize we may treat counsel’s request


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in the Anders brief itself as such a request. See Commonwealth v.

Fischetti, 669 A.2d 399 (Pa. Super. 1995). (explaining “the more desirable

practice would be to submit a separate withdrawal request to the court”).

We also note the Anders brief certificate of service indicates that the

Anders brief was mailed to Roberts Paladino by U.S. first class mail.

However, there is no indication in the record or filings in this Court that

counsel advised Roberts Paladino by letter that he had the right to proceed

with newly retained counsel or pro se, or raise any points in addition to the

points raised by counsel in the Anders brief.      Therefore, counsel has not

properly complied with the technical requirements of Anders and its

progeny.

      Accordingly, if on remand counsel files a statement of intent to file an

Anders brief in lieu of a concise statement, we direct counsel to file with this

Court, within 30 days thereafter, a petition to withdraw from representation,

including the appropriate documentation evidencing counsel’s compliance

with the notice requirements discussed above.          See Orellana, supra;

Millisock, supra.

      Next, we address the procedural aspects of counsel’s Anders brief.

Here, the Anders brief states that “[a]n appeal of the discretionary aspects

of a sentence which was the result of a negotiated plea agreement is

patently frivolous.” Anders Brief at 10, citing Commonwealth v. Reichle,

589 A.2d 1140. This statement, however, has no application in this case,


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given    that   Roberts   Paladino   entered   an   open   guilty   plea.   See

Commonwealth v. Tirado, 870 A.2d 362, 368 n.5 (noting that “while a

guilty plea which includes sentence negotiation ordinarily precludes a

defendant from contesting the validity of his or her sentence other than to

argue that the sentence is illegal or that the sentencing court did not have

jurisdiction, open plea agreements are an exception in which a defendant

will not be precluded from appealing the discretionary aspects of the

sentence”) (emphasis in original).

        Furthermore, although the Anders brief addresses “the legality of the

sentence” imposed on Roberts Paladino, the discussion is framed in terms of

the trial court’s deviation from the sentencing guidelines. Anders Brief at

11. As such, this issue implicates the discretionary aspects of the sentence.

See Tirado, supra (challenge to sentence outside the guidelines implicates

discretionary aspects of sentence).     However, the Anders brief does not

contain a separate statement of reasons relied upon for allowance of appeal,

as required by Pa.R.A.P. 2119(f). We may review this issue notwithstanding

the absence of a Rule 2119(f) statement. See Commonwealth v. Lilley,

978 A.2d 995, 998 (Pa. Super. 2009) (examining the merits of a challenge to

discretionary aspects of a sentence where counsel failed to include Pa.R.A.P.

2119(f) statement within an Anders brief).          Nevertheless, since we are

remanding this case, we instruct counsel, if he continues to proceed

pursuant to Anders, to amend the Anders brief pursuant to Rule 2119(f).


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      To summarize, we remand this case to the trial court with the

following instructions:

      I.     Within 30 days of the date the record is transmitted to the trial

             court, counsel for Roberts Paladino must file in the trial court

             either (1) a Rule 1925(b) statement nunc pro tunc, or (2) a

             statement of intent to file an Anders brief, in accordance with

             Rule 1925(c)(4).

      II.    If counsel files a Rule 1925(b) statement, we direct the trial

             court to file a Rule 1925(a) opinion within 30 days thereafter,

             and then promptly certify and retransmit the trial court record to

             this Court.   Additionally, counsel must file an advocate’s brief

             with this Court within 30 days of the filing of the trial court’s

             opinion.

      III.   If counsel files a Rule 1925(c)(4) statement of intent to file an

             Anders brief, the trial court may determine whether an opinion

             is necessary, and if not, promptly certify and transmit the trial

             court record back to this Court.   Additionally, if counsel files a

             Rule 1925(c)(4) statement, counsel must file in this Court within

             30 days thereafter, a petition to withdraw from representation

             and appropriate documentation evidencing compliance with the

             notice requirements for withdrawal, and an amended Anders

             brief that includes a Rule 2119(f) statement.


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     Case remanded with instructions. Panel jurisdiction retained.




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