J-A11009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    OTIS ADAM THOMAS III

                             Appellant               No. 1092 MDA 2017


         Appeal from the Judgment of Sentence imposed May 17, 2017
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No: CP-22-CR-0005913-2015


BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY STABILE, J.:                     FILED SEPTEMBER 18, 2018

        Appellant, Otis Adam Thomas III, appeals from his judgment of

sentence of 48—96 months’ imprisonment for unlawful contact with a minor,

indecent assault of a child and corruption of minors.1 We remand for the filing

of a Pa.R.A.P. 1925(a) opinion that addresses the issues raised in Appellant’s

untimely Pa.R.A.P. 1925(b) statement of matters complained of on appeal.

        On February 13, 2017, the jury found Appellant guilty of the above

offenses. On May 17, 2017, the trial court imposed sentence. On May 19,

2017, Appellant filed timely post-sentence motions challenging, inter alia, the

weight of the evidence presented at trial. In an order dated June 6, 2017, the


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* Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6318, 3126, and 6301, respectively.
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trial court denied the post-sentence motions. The docket states, however,

that the order was “dist.” (distributed) on June 7, 2017. The docket states

erroneously that Appellant filed a notice of appeal on July 11, 2017. In fact,

the time stamp on the notice of appeal demonstrates that Appellant filed it on

July 7, 2017.

      On July 14, 2017, the trial court ordered Appellant to file a Rule 1925

statement within the next 21 days. Appellant, however, did not file a Rule

1925 statement until October 11, 2017. On October 16, 2017, Appellant’s

attorney filed a petition for leave to submit a Rule 1925 statement nunc pro

tunc. Counsel stated that he had drafted a Rule 1925 statement but admitted

that his staff failed to file it.       On October 17, 2017, without ruling on

Appellant’s   petition,   the   trial   court   issued   a   Rule   1925(a)   opinion

recommending dismissal of Appellant’s appeal for lack of a timely Rule

1925(b) statement. The trial court did not address the merits of any issue in

Appellant’s Rule 1925(b) statement.

      Appellant raises the following issues on appeal:

      A. Did the trial court err by denying the defense request for an in
      camera review and the disclosure of relevant diagnoses, opinions,
      evaluations, observations, and treatment plans that were not
      confidential communications protected from disclosure by 42
      Pa.C.S.A. § 5944[?]

      B. Did the trial court err in denying [A]ppellant's motion for a new
      trial when the jury’s verdict was against the weight of the evidence
      because the Commonwealth failed to meet its burden to sustain
      the alleged charges?




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      C. Did the trial court abuse its discretion when it imposed
      consecutive sentences where [A]ppellant's conduct was limited to
      a single incident and not so egregious as to warrant a four to eight
      (4-8) year sentence?

      D. Did the trial court err in denying [A]ppellant's request to submit
      a concise statement of matters nunc pro tunc?

Appellant’s Brief at 9.

      The Commonwealth requests that we quash this appeal as untimely filed

more than thirty days after the order denying post-sentence motions. We

decline to do so. The thirty-day appeal period began to run on June 7, 2017,

the date the Clerk of Court distributed the order to the parties. Pa.R.A.P.

108(a)(1) (“in computing any period of time under these rules involving the

date of entry of an order by a court . . . the day of entry shall be the day the

clerk of the court . . . mails or delivers copies of the order to the parties);

Pa.R.A.P. 108(d)(1) (Rule 108(a)(1) shall apply except in circumstances not

relevant here). The timestamp on the notice of appeal indicates that Appellant

filed it on July 7, 2017, within the appeal period.

      We next address the proper remedy for the untimely filing of Appellant’s

Rule 1925(b) statement. The Rules of Appellate Procedure prescribe: “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 Commonwealth v. Burton, 973 A.2d 428 (Pa.


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Super. 2009), this Court held that when counsel files a Rule 1925(b)

statement beyond the court-ordered deadline, the proper remedy is the

remand procedure provided in Rule 1925(c)(3). Id. at 431. We reasoned:

       The complete failure to file the 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.
       Likewise, the untimely filing is per se ineffectiveness because it is
       without reasonable basis designed to effectuate the client’s
       interest and waives all issues on appeal. Thus[,] untimely filing
       of the 1925 concise statement is the equivalent of a complete
       failure to file. Both are per se ineffectiveness of counsel from
       which appellants are entitled to the same prompt relief.

       The view that Rule 1925(c)(3) does not apply to untimely 1925
       concise statements would produce paradoxical results.         The
       attorney who abandons his client by failing to file a 1925 concise
       statement would do less of a disservice to the client than the
       attorney who files a 1925 concise statement beyond the deadline
       for filing.

Id. at 432–33.

       Based on Rule 1925(c)(3) and Burton, we remand the certified record

to the trial court with directions to accept Appellant’s Rule 1925(b) statement

nunc pro tunc and to file a Rule 1925(a) opinion addressing the issues in

Appellant’s statement2 within thirty days of the date of this memorandum. To

assist the trial court in this task, we direct the Clerk of this Court to transmit




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2 Appellant’s Rule 1925(b) statement appears to be identical in substance to
the issues raised in Appellant’s appellate brief.




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the parties’ appellate briefs and Appellant’s reproduced record to the trial court

along with the certified record.3

       Case remanded for further proceedings in accordance with this

memorandum. Jurisdiction retained.




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3 In a footnote, the trial court stated: “As to [Appellant’s] claim that the jury’s
verdict was against the weight of the evidence, [Appellant] made no request
for preparation of the trial transcript. Because no transcript appears as a
matter of record, it would be impossible for the trial court or the Superior
Court to review the claim.” Trial Ct. Op. at 3 n.2. We refer the trial court to
the complete trial and sentencing transcripts in Appellant’s reproduced record,
and we direct the trial court to incorporate these transcripts into the certified
record pursuant to Pa.R.A.P. 1926.

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