J-S17037-17
                              2017 PA Super 154

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
            v.                            :
                                          :
CARL CHESTER,                             :
                                          :
                  Appellant               :           No. 178 EDA 2016

              Appeal from the PCRA Order December 18, 2015
           in the Court of Common Pleas of Philadelphia County,
            Criminal Division, No(s): CP-51-CR-0016213-2008

BEFORE: OLSON, STABILE and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                              FILED MAY 19, 2017

      Carl Chester (“Chester”) appeals from the Order dismissing his first

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).   See 42

Pa.C.S.A. §§ 9541-9546.       We vacate the Order and remand for further

proceedings.

      In September 2009, Chester pled guilty to one count of possession

with intent to deliver marijuana.      In December 2009, the trial court

sentenced Chester to three years’ probation.       On July 19, 2011, after

Chester was found guilty of various crimes, the trial court revoked Chester’s

probation and sentenced him to three to six years in prison. The sentence

was to run consecutive to Chester’s other sentences. Chester was advised,

on the record, that he had a right to file a motion to reconsider the sentence

within ten days and to appeal his sentence within thirty days.

      On August 2, 2011, Chester filed a Motion for Reconsideration, arguing

that the probation revocation sentence was excessive and that a new
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sentencing hearing was required. The Motion was in the form of an order,

which included separate signature lines for the sentencing judge to approve

or disapprove the Motion. On August 8, 2011, the sentencing judge signed

the disapprove signature line. However, the docket did not include an entry

of the denial of the Motion. Chester did not file a direct appeal.

      On September 16, 2013, Chester filed a pro se PCRA Petition.

Thereafter, Chester, through counsel, filed an amended PCRA Petition. The

PCRA court issued a Pennsylvania Rule of Criminal Procedure 907 Notice.

After Chester filed a Response, the PCRA court dismissed the Petition on

December 18, 2015. Chester filed a timely Notice of Appeal.

      On July 22, 2016, the PCRA court ordered Chester to file a

Pennsylvania Rule of Appellate Procedure 1925(b) concise statement. 1

Chester did not file a concise statement.

      On appeal, Chester raises the following questions for our review:

      I.    Whether the [PCRA] court erred in d[ismissing] [Chester’s]
            PCRA [P]etition without an evidentiary hearing on the
            issues raised in the amended PCRA [P]etition regarding
            trial counsel’s ineffectiveness[?]

      II.   Whether the [PCRA] court erred in not granting relief on
            the PCRA [P]etition alleging counsel was ineffective[?]

Brief for Appellant at 8.




1
  The judge that had dismissed Chester’s PCRA Petition had retired, and a
new judge was assigned to the case prior to the entry of the Rule 1925(b)
Order.


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      Prior to addressing Chester’s claims, we note that the PCRA court

issued an Opinion finding that Chester waived his claims by failing to file a

court-ordered Rule 1925(b) concise statement.       See PCRA Court Opinion,

1/30/17, at 1 (unnumbered). It is well-settled that an appellant’s failure to

comply with a trial court’s Rule 1925(b) Order results in a waiver of all

issues on appeal. See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.

2005); see also Pa.R.A.P. 1925(b)(4)(vii).     Rule 1925(b)(2) provides that

“[t]he 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.”

Pa.R.A.P. 1925(b)(2); see also Pa.R.A.P. 108(a) (noting that the date of

entry of an order “shall be the day the clerk of the court … mails or delivers

copies of the order to the parties[.]”). Further, when a Rule 1925(b) order

is entered, the clerk of courts must furnish copies of the order to the parties

and record the date of service of the order in the docket pursuant to

Pa.R.Crim.P. 114. See Commonwealth v. Hess, 810 A.2d 1249, 1252-53

(Pa. 2002); see also Commonwealth v. Davis, 867 A.2d 585, 588 (Pa.

Super. 2005) (en banc).

      In the case sub judice, the PCRA court’s Rule 1925(b) Order was dated

and docketed on July 22, 2016.      While the PCRA court indicates that the

Order was sent to the parties on that same day, see PCRA Court Opinion,

1/30/17, at 1 (unnumbered), there is no indication from either the Order or

docket that service was effectuated. Importantly, the docket fails to indicate



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the date of service of the Order.    See Pa.R.Crim.P. 114(C)(2). Based upon

the lack of recordation in the docket, we are unable to determine the date of

service of the Order, as required under Criminal Rule 114, and cannot

conclude that Chester failed to comply with the PCRA court’s directive to file

a concise statement. See Hess, 810 A.2d at 1254 (stating that while the

docket indicates appellant was served with Rule 1925(b) concise statement,

the docket did not indicate the date of service; thus, there was no basis

upon which to conclude that the appellant failed to comply with the Rule

1925(b) order).   Thus, we decline to find Chester’s claims waived on this

basis.2

             We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Initially, any PCRA petition “shall be filed within one year of the date

the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment of

sentence becomes final “at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

2
  While we “may” remand to determine whether the Rule 1925(b) Order had
been properly served, see Pa.R.A.P. 1925(c)(1), we decline to do so in the
interest of judicial economy.


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review.”   Id. § 9545(b)(3).     The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed.   See Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Chester’s sentence became final on August 18, 2011, thirty days

after the trial court imposed the probation revocation sentence.         See

Pa.R.Crim.P. 708(E) (stating that in the context of probation revocation

proceedings, “[a] motion to modify a sentence imposed after revocation

shall be filed within 10 days of the date of the imposition. The filing of a

motion to modify sentence will not toll the 30-day appeal period.”);

Commonwealth v. Duffy, 143 A.3d 940, 944 (Pa. Super. 2016) (noting

that whether or not a motion to modify sentence is filed, a notice of appeal

from a revocation proceeding must be filed within thirty days of the

imposition of the sentence). Chester had until August 20, 2012,3 to file a

timely PCRA petition. Thus, Chester’s PCRA Petition, filed on September 16,

2013, is facially untimely.

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i-iii).   Any petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S.A. § 9545(b)(2); Albrecht, 992 A.2d at 1094.

3
  We note that one year from the date Chester’s judgment of sentence
became final is Saturday, August 18, 2012.


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      Chester invokes the newly-discovered fact exception set forth at 42

Pa.C.S.A. § 9545(b)(1)(ii), and contends that his counsel abandoned him by

failing to file a timely direct appeal. Brief for Appellant at 18-19. Chester

argues that following the probation revocation sentencing hearing, he asked

counsel to file a motion for reconsideration and a notice of appeal, and that

counsel failed to file the requested appeal.    Id. at 18.    Chester further

asserts that his counsel failed to advise him regarding the disposition of the

Motion for Reconsideration or the failure to file an appeal.    Id.   Chester

claims that he did not learn about counsel’s actions until July 25, 2013,

when the Public Defender, responding to Chester’s letter, informed him that

the Motion for Reconsideration was denied by operation of law, and that

there were no further grounds for an appeal. Id. Chester thus argues he

exercised due diligence in that his Petition, filed on September 16, 2013,

was filed within sixty days of his learning of counsel’s abandonment. Id.

      In Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), our

Supreme Court addressed the application of the timeliness exception under

section 9545(b)(1)(ii) to a claim of abandonment by counsel. In that case,

after the deadline for filing a timely PCRA petition had expired, the

defendant discovered that his PCRA counsel had failed to file a brief,

resulting in the dismissal of his appeal.      Id. at 1266-67, 1272.        The

defendant filed an untimely PCRA petition, and invoked the newly-discovered

fact exception, arguing that the discovery of counsel’s abandonment



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constituted a new fact that could not have been ascertained earlier with due

diligence. Id. at 1267, 1272.

        The Supreme Court stated that in order to invoke this exception, a

petitioner is required to allege and prove that 1) there were facts that were

unknown to him; and 2) that he exercised due diligence. Id. at 1272; see

also id. at 1271 (noting that the exception at section 9545(b)(1)(ii) did not

require a petitioner to prove that these new facts constituted exculpatory

evidence that would have changed the outcome of the proceedings).               The

Supreme Court held that while claims of ineffective assistance of counsel do

not invoke the exception under section 9545(b)(1)(ii), an allegation of

abandonment by counsel falls within the ambit of that exception.            Id. at

1274.

        Here, after the imposition of Chester’s probation revocation sentence,

the following occurred:

        [Chester’s Counsel]: … If you want to ask the [c]ourt to
        reconsider its decision, you have to do that within 10 days, and
        if you wanted to file an appeal, you would have to do it within 30
        days. My office would continue to represent you, and I would be
        happy to file any paperwork that you’d like filed on your behalf.
        Do you understand?

        [Chester]: Yeah, I understand.

        [Chester’s Counsel]:       Would you      like   me   to   file   for
        reconsideration or appeal at this time?

        [Chester]: Yeah.

        [Chester’s Counsel]: Okay, I will file that paperwork for you.
        You know, because of the situation and the convictions, I don’t


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      think it’s very likely that we’ll get relief, but I will certainly file
      the paperwork because you have a right to ask for
      reconsideration, so I will do so. Do you understand?

      [Chester]: Uh-huh.

N.T., 7/19/11, at 9. Thereafter, on August 2, 2011, Chester’s counsel filed

an untimely Motion for Reconsideration.        As noted above, the trial court

appears to have denied the Motion, but no order was entered on the record

or in the docket. Chester’s counsel did not file a timely direct appeal and did

not withdraw his representation.

      On June 26, 2013, Chester wrote a letter to his counsel, seeking an

update on his appeal. On July 25, 2013, the Public Defender’s Office sent

Chester a letter stating the following:

      I am writing in response to your letter to the Defender’s
      Association, postmarked June 26, 2013. Our office did file a
      petition to vacate and reconsider on your behalf. Unfortunately,
      despite our numerous attempts to have the judge make a
      decision in this matter, she did not do so. Since Judge Brown
      did not respond within the allowed time period, the petition is
      deemed denied by operation of law. Since you are [in] technical
      and/or direct violations of the judge’s supervision, there were no
      grounds for any further appeals on this matter. I apologize if
      you were not informed of that information sooner.

Letter, 7/25/13. In response, on September 16, 2013, Chester filed a PCRA

Petition, which was within 60 days of the letter.

      Here, Chester’s counsel clearly stated that he would file an appeal on

Chester’s behalf, but failed to file an appeal. Further, in the July 2013 letter

to Chester, the Public Defender’s Office incorrectly informed Chester that the

Motion for Reconsideration was denied by operation of law.                      See


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Pa.R.Crim.P. 708(E); Duffy, 143 A.3d at 944. But see N.T., 7/19/11, at 9

(wherein Chester’s counsel correctly informed Chester that an appeal must

be filed within 30 days of sentencing). Thus, Chester has properly invoked

the timeliness exception at section 9545(b)(1)(ii), by demonstrating that his

counsel   had   abandoned    him.     See     Bennett,   930   A.2d   at   1275;

Commonwealth v. Huddleston, 55 A.3d 1217, 1221-22 (Pa. Super. 2012)

(concluding that the petitioner’s direct appeal rights were properly reinstated

where petitioner properly invoked the timeliness exception under section

9545(b)(1)(ii) by demonstrating that his counsel abandoned him).

      While Chester has sufficiently invoked the timeliness exception at

section 9545(b)(1)(ii), he must still prove that the facts were unknown to

him and that he could not uncover the facts earlier with due diligence. See

Bennett, 930 A.2d at 1272, 1274.          “Such questions require further fact-

finding and the PCRA court, acting as fact finder, should determine whether

[Chester] met the ‘proof’ requirement under [section] 9545(b)(1)(ii).”       Id.

at 1274; see also Commonwealth v. Burton, 2017 WL 1149203, **12,

16 (Pa. 2017).    Thus, we must vacate the Order of the PCRA court, and

remand to the PCRA court to resolve the following questions: (1) whether

the fact that Chester’s counsel failed to file a direct appeal was unknown to

Chester; and (2) whether Chester exercised due diligence in uncovering this

fact, and filed his PCRA Petition within 60 days of the date that Chester




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discovered that counsel had failed to perfect his direct appeal. 4       See

Burton, supra; Bennett, supra.       Should the PCRA court determine that

Chester properly invoked the exception, it shall reinstate Chester’s right to

file a direct appeal, nunc pro tunc, and appoint new counsel.

      Order vacated. Case remanded for further proceedings.      Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/19/2017




4
  In making a determination under section 9545(b)(1)(ii), the PCRA court
must also include an assessment of Chester’s access to public records. In
Bennett, the Court concluded that the petitioner would not have had access
to the public record as he was in prison, and had been abandoned by
counsel. See Bennett, 930 A.2d at 1275; id. (noting that matters of public
record would not be sent to the petitioner, but instead to counsel of record,
who would inform the petitioner about any court action); see also Burton,
2017 WL 1149203, at *16 (holding “that the presumption that information
which is of public record cannot be deemed ‘unknown’ for purposes of
subsection 9545(b)(1)(ii) does not apply to pro se prisoner petitioners.”)
(emphasis in original).


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