J-S73022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 KELVIN MADERA                           :
                                         :
                   Appellant             :   No. 535 MDA 2019

      Appeal from the Judgment of Sentence Entered October 25, 2018
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0000017-2017


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                      FILED JANUARY 22, 2020

     Kelvin Madera appeals from the judgment of sentence, entered in the

Court of Common Pleas of Berks County, following his conviction of two counts

of possession with intent to deliver (PWID) and one count of conspiracy to

commit PWID. After careful review, we remand.

     Following a jury trial, Madera was found guilty of the above-mentioned

crimes; he was sentenced on October 18, 2018, to 2 consecutive terms of 14

months to five years for PWID and a 10-year probationary term for conspiracy.

On November 15, 2018, Madera filed post-sentence motions challenging the

weight and sufficiency of the evidence and the discretionary aspect of his

sentence. On April 3, 2019, Madera’s post-sentence motions were denied by

operation of law. See Pa.R.Crim.P. 720(B)(3)(b). Madera filed a timely notice

of appeal on the same date. On April 4, 2019, the trial court ordered Madera

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal
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within 30 days from the date of the entry of the order on the docket. The

court’s order also stated that “[a]ny issue not properly included in the

Statement timely filed and served pursuant to [Rule] 1925(b) shall be deemed

waived.” Pa.R.A.P. 1925(b) Order, 4/4/19 (emphasis added). The court’s

Rule 1925(b) order was appropriately filed and served on the parties. Counsel

filed Madera’s Rule 1925(b) statement on June 10, 2019, more than one

month past the filing deadline outlined in the court’s Rule 1925(b) order.

      Before we address the merits of this appeal, we must first determine

whether Madera has waived his issues by filing an untimely Rule 1925(b)

statement. In Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009),

this Court discussed the ramifications of counsel’s failure to file a timely Rule

1925(b) statement:

      The complete failure to file the [Rule] 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 [Rule] 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 [Rule]
      1925 concise statements would produce paradoxical results. The
      attorney who abandons his client by failing to file a [Rule] 1925
      concise statement would do less of a disservice to the client than
      the attorney who files a [Rule] 1925 concise statement beyond
      the deadline for filing.

Id. at 432-33. Recently, in Commonwealth v. Andrews, 213 A.3d 1004

(Pa. Super. 2019), where the appellant’s Rule 1925(b) statement was also


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untimely filed, because the record contained no indication that the court ever

served appellant with its Rule 1925(b) order and where the trial court did not

comment on the untimely filing of the statement, our Court neither found

waiver nor the need to remand for the preparation of a trial court opinion. Id.

at 1009-10.

      Here, there is record proof that Madera’s attorney was served with the

trial court’s Rule 1925(b) order despite his claim that he never received it.

Moreover, the trial court not only acknowledges that Madera filed his Rule

1925(b) statement untimely, but also explicitly “rejec[ted] Defendant’s

untimely concise statement of errors complained of on appeal” and noted that

“none of Defendant’s claims involve[s] non-waivable issues.” As a result, the

court deems “all [of Defendant’s] claims . . . waived” and concludes that it

“need not issue a responsive Rule 1925(a) opinion. See Commonwealth v.

Wallace, 97 A.3d 310, 218 n.14 (Pa. 2014)[.]”

      The trial court cites Commonwealth v. Rodriguez, 81 A.2d 103, 105

n.2 (Pa. Super. 2013), in its non-responsive Rule 1925(a) opinion for the

proposition that “the trial court has discretion to reject or accept an untimely

Rule 1925(b) statement.” Rule 1925(a) Non-Responsive Opinion, 6/25/19, at

3. Rodriguez cites Commonwealth v. Ortiz, 745 A.2d 662, 663-64 n.3 (Pa.

Super. 2003), to support this edict regarding a trial court’s discretion on how

to treat untimely filed Rule 1925(b) statements. Ortiz, however, not only

pre-dates Burton, but was also issued before Rule 1925 was amended to

include subdivision (c) which recognizes that “the failure to file and serve a

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timely Statement is a failure to perfect the appeal . . . is presumptively

prejudicial and ‘clear’ ineffectiveness.” Pa.R.A.P. 1925(c)(3), Comment.

      Based on Burton and the purpose behind the 2007 amendments to Rule

1925, we find it necessary to remand this case to the trial court for the

preparation of a responsive Rule 1925(a) opinion that addresses the issues

raised in counsel’s untimely Rule 1925(b) statement. Where the court clearly

issued its Rule 1925(a) order to the parties and trial counsel waited another

12 days to file the statement after discovering that the order had been filed,

we find that counsel has prejudiced his client due to his per se ineffectiveness

and remand is proper. See Burton, supra (treating late filing of Rule 1925(b)

statement as equivalent of failure to file statement; remand necessary where

trial court has not filed opinion addressing issues presented in untimely

statement).

      Case remanded for preparation of responsive Rule 1925(a) opinion.

Panel jurisdiction retained.




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