J-S27021-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    MATTHEW JASON HAILEY                         :
                                                 :
                       Appellant                 :   No. 2819 EDA 2019

         Appeal from the Judgment of Sentence Entered August 28, 2019
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0007753-2009


BEFORE:      SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.:                                FILED JUNE 30, 2020

        Matthew Jason Hailey (Appellant) appeals from the judgment of

sentence entered in the Montgomery County Court of Common Pleas following

the revocation of his probation. Appellant argues the trial court did not have

jurisdiction to sentence him on a violation of probation when he had not begun

serving his probationary sentence.             Because appointed counsel failed to

preserve any claims on appeal, we remand for further proceedings.

        On September 27, 2010, Appellant entered an open guilty plea to 12

counts of burglary at trial court Docket No. CP-46-CR-0007753-2009 (7753-

2009). The global plea included additional burglary counts at two other trial

court dockets, neither of which are at issue here. That same day, the court

sentenced Appellant to an aggregate term of 7½ to 20 years’ imprisonment

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*   Former Justice specially assigned to the Superior Court.
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at the other dockets, and 10-year probationary terms for each of the burglary

counts at Docket No. 7753-2009.                The court directed the probationary

sentences run concurrently with each other, but consecutively to sentence of

imprisonment at the other dockets.1

        Appellant filed a timely direct appeal pro se, which was dismissed

pursuant to Pa.R.A.P. 3517 when he failed to filed a docketing statement.

Commonwealth v. Hailey, 3253 EDA 2010 (Pa. Super. 2011). Appellant

also filed a pro se petition for relief pursuant to the Post Conviction Relief Act

(PCRA).2 Counsel was appointed, but later filed a Turner/Finley3 “no merit”

letter and petition to withdraw as counsel. The PCRA court granted counsel’s

petition to withdraw and, on March 14, 2012, dismissed Appellant’s petition.

No appeal was filed.

        In February of 2017, Appellant was released on parole for the charges

at the other dockets after serving his minimum sentence.                 Appellant

subsequently violated the terms of his supervision, and the Commonwealth

sought to revoke his probation at Docket No. 7753-2009.             The trial court

summarized the ensuing procedural history as follows:

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1 The trial court subsequently amended the prison terms to an aggregate 6 ½
to 20 years, but did not modify the probationary sentences at issue herein.
See Order, 12/27/2010.

2   42 Pa.C.S. §§ 9541-9546.

3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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            On June 27, 2019, Appellant and his court-appointed
     counsel, Douglas Dolfman, Esquire, appeared before the court for
     a [c]ontested [revocation] hearing . . . . At the conclusion of the
     June 27, 2019 hearing, the court found [ ] Appellant to be in
     violation of his probation. However, sentencing . . . was deferred
     to allow counsel for [ ] Appellant and the Assistant District
     Attorney to submit briefs to [the trial court] within forty-five (45)
     days regarding alleged double jeopardy and alleged harsh and
     excessive sentencing arguments put forth by counsel for Appellant
     at the June 27, 2019 hearing. The Montgomery County District
     Attorney filed its brief on August 12, 2019. Counsel for Appellant
     did not file a brief on behalf of Appellant despite being ordered by
     the court to do so.

           On August 28, 2019, Appellant and his counsel appeared
     before the court for a [s]entencing [h]earing. At the conclusion
     of that hearing, the court found Appellant to be in violation of
     probation and revoked the sentence previously imposed on
     Appellant on November 24, 2010 in [Docket No.] 7753-2009. At
     the August 28, 2019 hearing, the court sentenced Appellant on
     counts 1-5 and 7-13 to a five (5) to ten (10) years consecutive
     sentence at a State Correctional Institution. The court noted on
     the sentencing sheet that all counts were to run concurrently to
     each other and consecutively to supervision on another case of
     [Appellant’s]. . . .

            On September 27, 2019, counsel for Appellant filed a Notice
     of Appeal of the court’s sentencing order of August 28, 2019 to
     the Superior Court of Pennsylvania. On September 27, 2019, the
     court issued an order pursuant to Pa.R.[A.]P. 1925(b) directing
     Appellant to file and serve a Concise Statement of Errors
     Complained of on Appeal within twenty-one (21) days from [the]
     date of that order’s entry on the docket. The court noted in that
     order that any issue not properly included in the statement timely
     filed and served pursuant to [Rule] 1925(b) would be deemed
     waived.




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Trial Ct. Op., 11/26/19, at 1-2 (footnote omitted).4       The docket indicates

counsel filed an untimely Rule 1925(b) statement on March 2, 2020, after the

trial court issued its opinion, and the record was sent to this Court.

       Appellant raises one issue in his brief:

       Did the violation of probation court err by sentencing [ ] Appellant
       to a period of incarceration when it lacked jurisdiction to do so in
       the matter?

Appellant’s Brief at 6.

       Rather than address this issue in its opinion, the trial court asserts

Appellant waived all claims for review when he failed to file a timely Rule

1925(b) statement. See Trial Ct. Op. at 3. We agree.

       It is well-settled:

       [I]n 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 Rule
       1925. Any issues not raised in a 1925(b) statement will be
       deemed waived.




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4   Although the trial court opinion is dated November 25, 2019, it was not
docketed and served on the parties until November 26, 2019. Thus, for
citation purposes we identify the opinion as filed on November 26, 2018. See
Pa.R.A.P. 108(a)(1) (date of entry of order is the date “the clerk of the court
. . . mails or delivers copies of the order to the parties”).

      Furthermore, we note the transcripts from the June 27 and August 28,
2019, hearings are not included in the certified record, although the docket
indicates the transcripts were filed on August 21 and September 13, 2019,
respectively. We direct the trial court to supplement the certified record with
these transcripts.


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Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). See also Pa.R.A.P.

1925(b). However, subsection (c)(3) of the Rule provides a safety net for

criminal defendants who, like Appellant, relied on counsel to comply with the

court’s order. At the time the Rule 1925 order was entered in the present

case, the Rule provided:

       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) (2014).5          Although subsection (c)(3) speaks only to

counsel’s failure to file a court-ordered Rule 1925(b) statement, an en banc

panel of this Court, in Commonwealth v. Burton, 973 A.2d 428 (Pa. Super.

2009) (en banc), held counsel’s “untimely filing of the 1925 concise statement

is the equivalent of a complete failure to file[; b]oth are per se ineffectiveness

of counsel from which appellants are entitled to the same prompt relief.” Id.

at 433 (footnote omitted). Effective October 1, 2019, the Rule was amended

to expressly allow an appellate court to remand in criminal cases when “an

appellant, who is represented by counsel, has completely failed to respond to




____________________________________________


5 We note Rule 1925 was amended on June 24, 2019, with an effective date
of October 1, 2019. See Pa.R.A.P. 1925, Credits. Because the order herein
was entered on September 27, 2019, the language prior to the 2019
amendment controls.




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an order to file a Statement or has failed to do so timely.”6 Pa.R.A.P. 1925,

Note (emphasis added).

        Here, the trial court entered an order on September 27, 2019, directing

Appellant to file a concise statement within 21 days. The docket indicates the

order was served on the parties on September 30, 2019.             See Pa.R.A.P.

108(a)(1) (date of entry of order is the date “the clerk of the court . . . mails

or delivers copies of the order to the parties”).       Thus, Appellant had until

October 21, 2019, to file a timely statement. However, at the time the court

filed its opinion on November 25, 2019, Attorney Dolfman still had not

complied with the order.        Trial Ct. Op. at 3.   Although the docket reveals

counsel filed a Rule 1925(b) statement on March 2, 2020, that statement was

filed more than four months after the court issued its opinion, and is not

included in the record certified to this Court.

        We conclude counsel’s failure to file a timely Rule 1925(b) statement in

the present case constitutes ineffectiveness per se. See Pa.R.A.P. 1925(c)(3);

Burton, 973 A.2d at 432–33. We note that in Burton, the en banc panel
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6   Subsection (c)(3) now reads as follows:

        If an appellant represented by counsel in a criminal case was
        ordered to file a Statement and failed to do so or filed an untimely
        Statement, such that the appellate court is convinced that counsel
        has been per se ineffective, and the trial court did not file an
        opinion, the appellate court may remand for appointment of new
        counsel, the filing of a Statement nunc pro tunc, and the
        preparation and filing of an opinion by the judge.

Pa.R.A.P. 1925(c)(3) (2019).


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concluded a remand was unnecessary because, despite the untimeliness of

counsel’s Rule 1925(b) statement, the trial court issued an opinion addressing

the sole claim raised in the untimely statement. Burton, 973 A.2d at 433.

Here, the court did not address any substantive issues in its opinion; rather,

it suggested this Court either affirm the judgment of sentence or remand for

the filing of a concise statement. We conclude a remand is appropriate under

the facts of this case. See Pa.R.A.P. 1925(c)(3).

      Furthermore, we note that on February 27, 2020, Appellant filed in this

Court an application seeking to substitute appointed counsel based upon a

litany of perceived missteps. See Appellant’s Application for Substitution of

Appointed Counsel, 2/27/20. This Court entered an order on March 17, 2020,

denying the application “in light of the fact that [ ] Appellant’s brief has been

filed.” Order, 3/17/20. However, we now find the appointment of new counsel

is warranted upon remand. As noted above, current counsel failed to file a

Rule 1925(b) statement until more than four months after the trial court

issued an opinion, and provided no explanation for the delay despite the fact

the trial court specifically addressed the lack of a Rule 1925(b) statement in

its opinion. Moreover, counsel also failed to file a brief following Appellant’s

revocation hearing, despite being ordered to do so by the trial court. See

Trial Ct. Op. at 1-2.

      Accordingly, we remand this case to the trial court pursuant to Pa.R.A.P.

1925(c)(3). Upon remand, we direct the trial court to (1) appoint new counsel

for Appellant within 30 days of receipt of this memorandum; (2) order new

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counsel to file a Pa.R.A.P. 1925(b) statement within 30 days of their

appointment; and (3) file a supplemental opinion addressing any claims raised

in the Rule 1925(b) statement within 45 days of the filing of the statement.

We also direct the trial court supplement the record with the transcripts from

the June 27, 2019, and August 28, 2019, hearings.7

       Case remanded for proceedings consistent with this memorandum.

Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2020




____________________________________________


7 The trial court shall notify this Court in writing if it cannot timely complete
these directives due to any Covid-19 pandemic-related regulations or issues.
In that event, the trial court shall, thereafter, keep this Court appraised of the
status of this proceeding.

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