J-S62021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

 STEPHEN MCLEOD

                             Appellant                  No. 26 MDA 2017


            Appeal from the Judgment of Sentence November 28, 2016
                In the Court of Common Pleas of Dauphin County
               Criminal Division at No(s): CP-22-SA-0000160-2016


BEFORE: STABILE, J., MOULTON, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY MOULTON, J.:                     FILED OCTOBER 27, 2017

       Stephen McLeod appeals from the November 28, 2016 judgment of

sentence entered in the Dauphin County Court of Common Pleas following his

bench-trial conviction for driving while operating privilege is suspended or

revoked, 75 Pa.C.S. § 1543(a). We remand for the trial court’s acceptance of

McLeod’s Pennsylvania Rule of Appellate Procedure 1925(b) statement and

preparation of a Rule 1925(a) opinion.

       On July 25, 2016, a magisterial district judge found McLeod guilty of the

aforementioned offense. On August 24, 2016, McLeod filed a summary appeal

to the trial court. On November 28, 2016, following a de novo hearing, the



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       *   Retired Senior Judge assigned to the Superior Court.
J-S62021-17



trial court found McLeod guilty. On December 28, 2016, McLeod filed a notice

of appeal.

       On January 13, 2017, the trial court ordered McLeod to file a Rule

1925(b) statement. This order was sent to McLeod’s counsel by certified mail,

return receipt requested. On February 8, 2017, the order was returned to the

trial court as undeliverable. On March 1, 2017, the trial court filed a statement

in lieu of memorandum opinion, requesting that this Court quash the appeal

because McLeod had failed to file a Rule 1925(b) statement.

       On March 9, 2017, McLeod filed a motion to file a Rule 1925(b)

statement nunc pro tunc, to which McLeod attached a Rule 1925(b) statement.

On May 16, 2017, the trial court denied McLeod’s motion, finding that an

appeal nunc pro tunc was inappropriate because the circumstances that led

McLeod’s counsel to miss the deadline were not “unforeseeable or unavoidable

event[s].” Mem. Op. and Order, 5/16/17, at 5.

       Both McLeod and the Commonwealth request that this Court remand

this matter for the filing of a Rule 1925(b) statement and accompanying Rule

1925(a) opinion because, under Rule 1925(c)(3), McLeod should be given the

opportunity to file a Rule 1925(b) statement nunc pro tunc.1 We agree.

       Rule 1925(c)(3) provides:

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       McLeod alternatively requests that the Court address the merits of his
       1

issue. However, because the trial court has not provided, in writing, its
reasons for denying McLeod’s motion to suppress, we decline to address the
merits of the issue at this time.


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         If any 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). Under these circumstances, “this Court is directed to

remand for the filing of a Rule 1925(b) statement nunc pro tunc and for the

preparation and filing of an opinion by the trial judge.” Commonwealth v.

Scott, 952 A.2d 1190, 1192 (Pa.Super. 2008).

      Here, McLeod filed a notice of appeal, and the trial court ordered McLeod

to file a Rule 1925(b) statement.      McLeod’s counsel, who may not have

received the order, failed to file such a statement and, despite McLeod filing a

motion requesting to file a Rule 1925(b) statement nunc pro tunc, to which

he attached a proposed Rule 1925(b) statement, the trial court did not address

the merits of McLeod’s issue on appeal. Accordingly, “we are constrained to

follow the dictates of Rule 1925(c)(3).”       Scott, 952 A.2d at 852.       We,

therefore, remand this matter and direct the trial court to accept nunc pro

tunc McLeod’s previously submitted Rule 1925(b) statement and to prepare

and file a Rule 1925(a) opinion no later than 21 days after the filing of that

statement.

      Further, we give McLeod the option as to whether he would like to file a

new brief in response to the trial court’s Rule 1925(a) opinion. McLeod shall

notify the Prothonotary of this Court, in writing, within 7 days of being served

with the trial court’s opinion, whether he intends to file an additional brief. If



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J-S62021-17



so, the Prothonotary will set a briefing schedule. If not, we shall determine

the merits of McLeod’s issue on the briefs already submitted.

     Case remanded with instructions. Jurisdiction retained.




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