J-S50017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
 APPELLANT                                :        PENNSYLVANIA
                                          :
                                          :
              v.                          :
                                          :
                                          :
 DALTON PATRICK ROBINSON                  :
                                          :   No. 1826 WDA 2017

          Appeal from the Judgment of Sentence October 20, 2017
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0001864-2017


BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.:                           FILED OCTOBER 31, 2018

      The Commonwealth appeals from the judgment of sentence entered on

October 20, 2017, in the Erie County Court of Common Pleas, following the

denial of its motion for reconsideration/motion to vacate plea.           The

Commonwealth contends the trial court erred and/or abused its discretion by

sua sponte changing the plea offer from possession with intent to deliver to

simple possession, and then sentencing appellee, Dalton Patrick Robinson,

accordingly. See Commonwealth’s Brief at 3. Based on the following, we

affirm.

      The trial court set forth the relevant background as follows:

      In addition to other counts, [Robinson] was charged at Count Four
      with Possession With Intent to Deliver (marijuana).           On
      September 6, 2017, before the Commonwealth provided defense
      counsel with the laboratory report containing test results and
      weight of the substance believed to be marijuana, Robinson
      entered a negotiated guilty plea to certain counts of the
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     Information including Count Four, Possession With Intent to
     Deliver. After the plea hearing, in late September of 2017 the
     Commonwealth provided defense counsel with the lab report
     which indicated the weight of the marijuana at issue was 25
     grams. From September 27, 2017 until the morning of the
     sentencing hearing of October 20, 2017, [d]efense counsel sought
     the Commonwealth’s consent to either [sic] amend Count Four to
     either a “small amount of marijuana”3 or “possession of
     marijuana.” The morning of the sentencing hearing, defense
     counsel reviewed an e-mail from the Commonwealth sent the
     previous day advising the Commonwealth did not consent to [an]
     amendment of Count Four.

     __________________

       3 The offense of possession of a small amount of marijuana
       for personal use involves thirty (30) grams (or less) of
       marijuana or eight (8) grams of hashish. 35 P.S. § 780-
       113(a)(31).

     __________________

            At sentencing on October 20, 2017, defense counsel
     presented an oral motion in the nature of an oral motion for
     extraordinary relief pursuant to Pa.R.Crim.P. 704(B), seeking the
     relief of amendment of Count Four to conform to the facts as
     recited herein. The Commonwealth did not dispute the lab report
     revealed the weight of the marijuana was 25 grams. There was
     no dispute the marijuana was found in one container as opposed
     to several and no cash was found. After argument, pursuant to
     Pa.R.Crim.P. 704(B)(2), the Court granted the motion and
     conformed the charge at Count Four to possession of marijuana
     at 35 P.S. § 780-113(a)(16), a misdemeanor, in view of the
     weight of the substance. At Count Four, the Court sentenced
     Robinson to one-year of county-supervised probation, consecutive
     to the sentence imposed at Count Three.

            On October 20, 2017, the Commonwealth filed a Motion for
     Reconsideration/Motion to Vacate Plea, for reasons including the
     conforming of the charge at Count Four. On November 21, 2017,
     following a hearing, the Court denied the motion. On December
     4, 2017, the Commonwealth filed a Notice of Appeal.          On
     December 7, 2017, the Court issued a [Pa.R.A.P.] 1925(b) Order,
     directing the Commonwealth to file a Statement of Matters

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      Complained of on Appeal in 21 days. On January 24, 2018, the
      Commonwealth filed a Concise Statement of Matters Complained
      of On Appeal.

Trial Court Opinion, 2/20/2018, at 1-3 (record citations omitted).

      As noted above, the Commonwealth raises the following issue on

appeal:

      Whether the lower court erred as a matter of law or abused its
      discretion by sua sponte change the plea offer from possession
      with intent to deliver to possession and then sentencing
      [Robinson] accordingly.

Commonwealth’s Brief at 3.

      Before addressing the merits of the Commonwealth’s issue, we must

determine whether it has preserved this claim for our review, as required by

Pa.R.A.P. 1925(b). The Pennsylvania Supreme Court has set forth a bright

line rule that, “in order to preserve their claims for appellate review, appellants

must comply whenever the trial court orders them to file a Statement of

Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not

raised    in   a   Pa.R.A.P.   1925(b)   statement   will   be    deemed   waived.”

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005), quoting

Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998).                   See also Pa.R.A.P.

1925(b)(2) (“The judge shall allow the appellant at least 21 days from the

date of the order’s entry on the docket for the filing and service of the

Statement.”). Moreover, this Court has previously stated:

      [I]t is no longer within this Court’s discretion to review the merits
      of an untimely Rule 1925(b) statement based solely on the trial
      court’s decision to address the merits of those untimely raised

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      issues. Under current precedent, even if a trial court ignores the
      untimeliness of a Rule 1925(b) statement and addresses the
      merits, those claims still must be considered waived: “Whenever
      a trial court orders an appellant to file a concise statement of
      [errors] complained of on appeal pursuant to Rule 1925(b), the
      appellant must comply in a timely manner.” Hess v. Fox
      Rothschild, LLP, 2007 PA Super 133, 925 A.2d 798, 803 (Pa.
      Super. 2007) (citing Castillo, 888 A.2d at 780)) (emphasis in
      original); see Feingold v. Hendrzak, 2011 PA Super 34, 15 A.3d
      937, 940 (Pa. Super. 2011).

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d

222, 225 (Pa. Super. 2014) (en banc).

      Here, a review of the record reveals the court issued a Rule 1925(b)

order on December 7, 2017, directing the Commonwealth to file a concise

statement in 21 days.       The Commonwealth filed a concise statement on

January 24, 2018, 27 days late. Furthermore, in its Rule 1925(a) opinion, the

trial court stated: “No request to extend the time for filing was submitted to

the Court. The issue raised in the untimely [c]oncise [s]tatement is waived.

Pa.R.A.P. 1925(b).”   Trial Court Opinion, 2/20/2018, at 3 (italics omitted).

Accordingly, the Commonwealth has failed to comply with the trial court’s

December 7, 2017, order as well as the rules of appellate procedure.

Therefore, it has waived its issue for our review. See Castillo, supra.

      Furthermore,    the    trial   court   did   address   the   merits   of   the

Commonwealth’s claim in its Rule 1925(a) opinion, and found there was no

merit to the issue. See Trial Court Opinion, 2/20/2018, at 3-4.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2018




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