J-S13022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA :               IN THE SUPERIOR COURT OF
                              :                    PENNSYLVANIA
                              :
           v.                 :
                              :
                              :
 STEVEN LEE MOWERY            :
                              :
               Appellant      :               No. 1073 WDA 2017
                              :

                Appeal from the PCRA Order January 9, 2017
  In the Court of Common Pleas of Blair County Criminal Division at No(s):
                          CP-07-CR-0002608-2010


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

MEMORANDUM BY SHOGAN, J.:                                 FILED MAY 4, 2018

      Appellant, Steven Lee Mowery, appeals from the order denying his

petition 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).

      The PCRA court summarized the history of this case as follows:

              [Appellant] pled guilty on July 11, 2011 to two (2) counts of
      Aggravate Indecent Assault – Forcible Compulsion
      (felonies of the 2nd Degree). A pre-sentence investigation was
      ordered and on November 3, 2011, [Appellant] received a
      sentence of no less than 3 ½ years to no more than 10 years in
      the state correctional system, consistent with the plea agreement
      negotiated into by and between the Commonwealth and
      [Appellant]. [Appellant’s] trial counsel was Attorney Perry Flaugh.
      A sexual offender’s assessment was performed by the
      Pennsylvania Sexual Assessment Board. The Commonwealth
      initially filed a Praecipe for a Sexually Violent Predator’s
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      Classification hearing, however, upon receipt and review of the
      assessment, the Commonwealth withdrew such praecipe.

             [Appellant] never filed [a] direct appeal. On March 2, 2015,
      [Appellant] filed his [PCRA] Petition pro se. On April 9, 2015, [the
      PCRA court] entered an Order appoint[ing] Paul M. Puskar as PCRA
      counsel and providing him sixty (60) days to file any amended
      PCRA petition. On July 2, 2015, we held a status conference with
      counsel only, and provided Attorney Puskar an extension until
      Friday, September 4, 2015 to file an Amended PCRA Petition,
      including setting forth any claimed “after discovered evidence”
      that would justify relief under the PCRA Act, and further,
      identifying if any of these three (3) exceptions to the timeliness
      requirements applied.         42 Pa.C.S.A. § 9545(b)(1) and
      Commonwealth v. Hawkins, 953 A.2d 1248 (Pa. 2008). No
      Amended PCRA Petition was filed.

             Another status conference was held with [PCRA] counsel on
      October 4, 2016, the same date the Commonwealth filed a Motion
      to Dismiss [Appellant’s] PCRA Petition as being untimely. On
      January 3, 2017, a hearing was held relative to the
      Commonwealth’s Motion to Dismiss, at which time, [Appellant]
      testified on his own behalf.

PCRA Court Opinion, 1/9/17, at 1-2 (emphasis in original).

      In an opinion and order filed on January 9, 2017, the PCRA court

dismissed Appellant’s PCRA petition as having been untimely filed. Appellant

then filed, pro se, a second PCRA petition seeking reinstatement of his right

to appeal the dismissal of his first PCRA petition. The PCRA court appointed

current counsel, who then filed an amended second PCRA petition. In an order

dated July 13, 2017, the PCRA court granted Appellant relief and reinstated

his appellate rights, nunc pro tunc. This timely appeal followed.

      On August 1, 2017, the PCRA court directed Appellant to file a Pa.R.A.P.

1925(b) statement within twenty-one days. Appellant failed to file a Pa.R.A.P.


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1925(b) statement as ordered.1 The PCRA court did not prepare an opinion

pursuant to Pa.R.A.P. 1925(a). Rather, the PCRA court issued a one-sentence

letter to the Prothonotary of Blair County stating, “In reference to the above

[captioned case], please be advised that I will stand on the record concerning

the pending appeal.” PCRA Court Letter, 9/21/17, at 1.

       Appellant now presents the following issue for our review:

             1. Whether the [PCRA court] erred and abused its discretion
       in denying and dismissing [Appellant’s] PCRA Petition?

Appellant’s Brief at 4.

       Appellant argues that the PCRA court erred in dismissing his PCRA

petition due to being untimely filed.          Appellant’s Brief at 8-10.   Appellant

contends that he properly pleaded and proved the after-discovered-facts

exception to the PCRA timeliness requirements. Id. Appellant alleges that he

received two reports from Children and Youth Services, which contained

exculpatory information that qualifies as after-discovered facts. Id. at 9.




____________________________________________


1 We note that Appellant has stated in his brief that “[Appellant] was ordered
to provide on August 1, 2017 Rule 1925 Statement and [Appellant] complied
with said order.” Appellant’s Brief at 5. However, our review of the certified
record reflects that, although the PCRA court entered an order on August 1,
2017 that directed Appellant to file a Pa.R.A.P. 1925(b) statement, such
statement was never filed and is not included in the certified record before us.
Indeed, the PCRA court’s docket entry dated September 19, 2017, specifically
provides: “Record Sent to Superior Court. Sending to Superior Court per
Judge Sullivan on 09/19/17. No [Pa.R.A.P. 1925(b)] Concise Statement
filed.” Docket Entry, 9/19/17 (emphasis added).

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      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that are

supported in the record and will not disturb them unless they have no support

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.

Super. 2014).

      Before we address the merits of the issue presented, we first consider

the ramifications of Appellant’s failure to file a Pa.R.A.P. 1925(b) statement

and the PCRA 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


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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:

      (c) Remand.–

                                    * * *

      (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). In addition, the Explanatory Note to subsection (c)(3)

provides the following 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) ….
      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.

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.

       Moreover, in Commonwealth v. Burton, 973 A.2d 428, 432 (Pa.

Super. 2009) (en banc), this Court declared, “The complete failure to file a

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.” We explained in Burton that “under the amended rule,

the remedy now for failure to file a 1925 concise statement is remand to allow

nunc pro tunc filing of the statement.” Id. at 431.

       Thus, we are convinced that the complete failure of Appellant’s

counsel    to   file   a   Pa.R.A.P.   1925(b)   statement   amounts   to   per   se

ineffectiveness, irrespective of the fact that the PCRA court, in an opinion

accompanying the PCRA court’s order dismissing the PCRA petition, addressed

the issue now presented to this Court in Appellant’s brief.2 Consequently, we

____________________________________________


2 We acknowledge that in Burton, we found remand unnecessary, as the trial
court had adequately addressed the issue presented by the appellant in his
untimely filed Pa.R.A.P. 1925(b) statement. Burton, 973 A.2d at 433. The
instant case appears similar to Burton in that the PCRA court’s opinion that
accompanied its order dismissing the PCRA petition addresses the issue
presented in Appellant’s brief. However, we conclude these circumstances are
distinguishable because Appellant’s counsel did not file an untimely Pa.R.A.P.
1925(b) statement but, instead, filed no such statement at all.




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are compelled to remand for Appellant’s counsel to file with the PCRA court a

Pa.R.A.P. 1925(b) statement nunc pro tunc within twenty-one days of the date

of this memorandum, and for the preparation of a Pa.R.A.P. 1925(a) opinion

by the PCRA court, to be filed with this Court within thirty days thereafter.3

       Case    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 Pa.R.A.P. 1925(b)
statement and preparation of a trial court opinion).

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