J. A17044/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
CRAIG ANDRUS,                             :         No. 1868 EDA 2018
                                          :
                         Appellant        :


         Appeal from the Judgment of Sentence Entered June 4, 2018,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0005092-2017


BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED SEPTEMBER 09, 2019

        Craig Andrus appeals from the June 4, 2018 judgment of sentence

entered in the Court of Common Pleas of Philadelphia County following his

entry of a negotiated guilty plea to third-degree murder and illegal possession

of a firearm.1    The trial court sentenced appellant to 11½ to 23 years of

imprisonment. We affirm.

        At the outset, we note that because the facts giving rise to appellant’s

convictions are not germane to the disposition of this appeal, we need not set

them forth. With respect to procedural history, the record reflects that after

imposition of sentence, no post-sentence motions were filed.        The record

further reflects that on June 12, 2018, despite being represented by counsel,




1   18 Pa.C.S.A. §§ 2502(c) and 6105(a)(1), respectively.
J. A17044/19

appellant filed a pro se notice of appeal to this court stating that he “would

like to take back his guilty plea.” (Notice of appeal, 6/6/18.) On August 28,

2018, this court entered an order remanding the case to the trial court for

30 days to determine whether trial counsel had abandoned appellant and to

take further action, as required, to protect appellant’s appellate rights,

including determination of appellant’s eligibility for court-appointed counsel.

(Per curiam order, 8/28/18.)

      In accordance with that remand order, the trial court held a hearing on

September 11, 2018, wherein it determined that trial counsel had abandoned

appellant.   As a result, the trial court entered an order that same day

permitting trial counsel to withdraw and appointing Attorney Gina Amoriello

to represent appellant on direct appeal.     (Trial court order, 9/11/18.)     By

separate order also entered on September 11, 2018, the trial court directed

Attorney Amoriello to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) on or before October 2, 2018. (Trial

court Rule 1925(b) order, 9/11/18.)        Attorney Amoriello failed to timely

comply.

      Instead,   on   September   13,   2018,   Attorney   Amoriello   filed   an

“application for remand” with this court requesting that we remand to the trial

court so that appellant could file a motion to withdraw his guilty plea.

(Application for remand, 9/13/18 at 1-2.)       This court then ordered the

Commonwealth and the trial court to show cause, within 21 days, as to why



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the case should not be remanded for further proceedings in accordance with

Pa.R.Crim.P. 720, which sets forth post-trial procedures. (Per curiam order,

10/18/18.) The Commonwealth and the trial court timely complied. We note

that the trial court’s response also served as its Rule 1925(a) opinion. (Trial

court’s written response to Superior Court’s October 18, 2018 order and

Rule 1925(a) opinion, 10/23/18 at 1.) In that response and opinion, the trial

court stated that remand pursuant to Rule 720 is not necessary because even

if appellant filed a timely post-sentence motion to withdraw his guilty plea, it

would have denied the motion because the record reflects that appellant

entered his guilty plea knowingly, voluntarily, and intelligently. (Id. at 3-6.)

On November 30, 2018, this court entered an order denying appellant’s

application for remand. (Per curiam order, 11/30/18.)

      On   December     1,   2018,    Attorney   Amoriello   filed   an   untimely

Rule 1925(b)    statement    on   appellant’s    behalf   that   challenged    the

voluntariness of appellant’s guilty plea and raised an ineffective assistance of

trial counsel claim.   (Appellant’s “statement of matters complained of on

appeal pursuant to Rule 1925[(b)],” 12/1/18 (full capitalization omitted).) On

January 4, 2019, this court dismissed appellant’s appeal due to appellant’s

failure to file an appellate brief.     (Per curiam order, 1/4/19.)           After

consideration of appellant’s application for reconsideration, this court granted

the application, vacated the dismissal order, and reinstated this appeal.

(Per curiam order, 1/6/19.)



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      In his brief, appellant raises the following issue:

            Was prior counsel ineffective for failing to file a timely
            petition to withdraw appellant’s guilty plea when
            appellant claims that this plea was not knowing,
            intelligent nor voluntary?

Appellant’s brief at 5 (boldface and full capitalization omitted).

      Preliminarily, we address the untimely filing of appellant’s Rule 1925(b)

statement, which challenged the voluntariness of appellant’s plea and raised

an ineffective assistance of trial counsel claim.    (Appellant’s “statement of

matters complained of on appeal pursuant to Rule 1925B,” 12/1/18 (full

capitalization omitted).) Pursuant to Commonwealth v. Burton, 973 A.2d

428 (Pa.Super. 2009), the late filing of a Rule 1925(b) statement is per se

ineffectiveness of Attorney Amoriello that would otherwise require a remand

for the trial court to have an adequate opportunity to address the issue raised

on appeal. Id. at 433; see also Pa.R.A.P. 1925(c)(3). Here, however, a

remand is not necessary because appellant’s ineffective assistance of trial

counsel claim, which is his sole issue on appeal, is not cognizable on direct

appeal.2 It is well settled that, absent circumstances not present in this case,

ineffective assistance of counsel claims are to be deferred to collateral review.

Commonwealth v. Reid, 117 A.3d 777, 786 (Pa.Super. 2015); see also

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013).


2 We note that the trial court fully addressed appellant’s challenge to the
voluntariness of his plea.    (See “written response to superior court’s
October 18, 2018 order and 1925(a) opinion,” 10/23/18 at 4-6 (full
capitalization omitted).)


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     Judgment of sentence affirmed without prejudice to any rights appellant

may have under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 9/9/19




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