J-S52027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 KEITH SHAWN HALL                          :
                                           :
                    Appellant              :    No. 567 MDA 2018

            Appeal from the PCRA Order Entered March 27, 2018
   In the Court of Common Pleas of Lancaster County Criminal Division at
                      No(s): CP-36-CR-0002990-2015


BEFORE:    BENDER, P.J.E., McLAUGHLIN, J., and STRASSBURGER*, J.

JUDGMENT ORDER BY McLAUGHLIN, J.:                FILED NOVEMBER 28, 2018

      Keith Shawn Hall appeals from the order denying him relief under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We remand

to permit Hall to file a Pa.R.A.P. 1925(b) statement nunc pro tunc and for the

PCRA court to prepare a Pa.R.A.P. 1925(a) opinion. See Pa.R.A.P. 1925(c)(3).

      The court sentenced Hall in 2016 for possession with intent to deliver

heroin and related charges. Hall filed notice of direct appeal, and this Court

affirmed Hall’s judgment of sentence on April 24, 2017. Hall filed a timely

PCRA Petition and the court appointed PCRA counsel, who filed an Amended

Petition and represented Hall at an evidentiary hearing. The PCRA court denied

relief, and Hall appealed. On April 5, 2018, the PCRA court ordered Hall to

submit Rule 1925(b) statement. No 1925(b) statement appears in the certified

record, and neither the trial court docket, the PCRA court’s 1925(a) opinion,

nor the parties’ briefs indicate counsel filed one on Hall’s behalf.


* Retired Senior Judge assigned to the Superior Court.
J-S52027-18



      Although the failure to comply with a Rule 1925(b) order may result in

a finding of waiver, Rule 1925(c)(3) permits us to remand for filing of a Rule

1925(b)    statement     under    certain    circumstances.    See     Pa.R.A.P.

1925(b)(4)(vii); Commonwealth v. Presley, 193 A.3d 436, 441 (Pa.Super.

2018). Rule 1925(c) provides that where an appellant in a criminal case fails

to file a court-ordered concise statement, “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). The note to Rule

1925 explains that an attorney’s complete “failure to file and serve a timely

Statement is a failure to perfect the appeal, [and] it is presumptively

prejudicial and ‘clear’ ineffectiveness.” Id., Note. We apply Rule 1925(c) not

only on direct appeal, but also on appeal from the denial of first PCRA petition.

Presley, 193 A.3d at 442.

      Although the Supreme Court in Commonwealth v. Hill, 16 A.3d 484,

495 n.14 (Pa. 2011), “suggested that, because of the civil nature of PCRA

proceedings, the remand procedure of subsection (c)(3) should not apply” to

a PCRA appeal, the Supreme Court in Hill applied the previous version of Rule

1925, which did not include section (c)(3). Presley, 193 A.3d at 441.

Therefore, the Supreme Court’s statements in Hill to the effect that Rule

1925(c)(3) does not apply in the PCRA context were dicta. Id.

      As Hall’s counsel failed to file a Rule 1925(b) statement as ordered by

the PCRA court, we are convinced that Hall’s counsel was per se ineffective,

                                      -2-
J-S52027-18



and, pursuant to Rule 1925(c)(3), we remand to PCRA court. Hall shall file a

Rule 1925(b) statement nunc pro tunc in the PCRA court within 30 days of the

date of this order, and the PCRA court shall transmit a supplemental record

and Rule 1925(a) opinion within 30 days thereafter. See Commonwealth v.

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

     Case remanded with instructions. Panel jurisdiction retained.




                                   -3-
