J-S75012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LIONEL LAWRENCE

                            Appellant                  No. 3044 EDA 2013


            Appeal from the Judgment of Sentence August 27, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000867-2011


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                          FILED FEBRUARY 06, 2015

        Appellant, Lionel Lawrence, appeals from the August 27, 2013

aggregate judgment of sentence imposing a two to four year term of

imprisonment, followed by two years’ probation, after a jury found him guilty

of theft by deception, forgery, and securing execution of documents by

deception.1 After careful review, we remand to the trial court pursuant to

Pennsylvania Rule of Appellate Procedure 1925(c)(3) for proceedings

consistent with this memorandum.

        It is sufficient to recount the following procedure, without reference to

the underlying factual basis that resulted in conviction, as the procedural

____________________________________________


1
    18 Pa.C.S.A. §§ 3922(a)(1), 4101(a)(1), and 4114, respectively.
J-S75012-14


history of this case compels our disposition.       The Commonwealth charged

Appellant with the aforementioned offenses as well as theft by unlawful

taking, receiving stolen property, identity theft, and tampering with records.2

Criminal Information, 1/31/11, at 1-2.           On March 20, 2011, Appellant

proceeded to a jury trial, where he represented himself with the assistance

of standby counsel.3 At the conclusion of the trial, Appellant was convicted

of theft by deception, forgery, and securing execution of documents by

deception.    The remaining charges were either quashed or nolle prossed.

The trial court sentenced Appellant on August 27, 2013 and appointed

counsel to represent Appellant on appeal. On September 5, 2013, Appellant

filed a timely post-sentence motion, which the trial court denied on

September 30, 2013.

        On October 29, 2013, counsel filed a timely notice of appeal.       On

November 1, 2013, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Rule 1925(b). On

November 25, 2013, counsel for Appellant filed an untimely statement of

____________________________________________


2
    18 Pa.C.S.A. §§ 3921(a), 3925(a), 4120(a), and 4104(a), respectively.
3
  Appellant was ordered to participate in a mental health evaluation and was
deemed competent to participate in trial and represent himself. The record
discloses the trial court determined Appellant knowingly, intelligently, and
voluntarily waived his right to counsel pursuant to Pennsylvania Rule of
Criminal Procedure 121. The order stating this finding is an entry written
directly on the docket sheet, dated September 7, 2011, and signed by the
court. Trial Court Order, 9/7/11.



                                           -2-
J-S75012-14


errors complained of on appeal and a request for an extension of time to file

a supplemental statement of errors complained of on appeal following

counsel’s receipt of the trial transcripts. Rule 1925(b) Statement, 11/25/13;

Motion for Extension of time, 11/25/13.         The trial court never ruled on

counsel’s request to file a supplemental statement, and counsel did not file a

supplemental statement. The certified record discloses the trial judge is now

retired and did not file a Rule 1925(a) opinion in this matter.

      We begin by noting that Rule 1925(b) provides that appellants may

seek for an extension of time to file a Rule 1925(b) statement beyond the

initial timeframe ordered by the trial court.

            Rule 1925. Opinion in Support of Order

                                       …

            (b) Direction to file statement of errors
            complained of on appeal; instructions to the
            appellant and the trial court.

                                       …

            (2) Time for filing and service.- The judge shall
            allow the appellant at least 21 days from the date of
            the order’s entry on the docket for the filing and
            service of the Statement. Upon application of the
            appellant and for good cause shown, the judge may
            enlarge the time period initially specified or permit
            an amended or supplemental Statement to be filed.
            Good cause includes, but it is not limited to, delay in
            the production of a transcript necessary to develop
            the Statement so long as such delay is not
            attributable to a lack of diligence in ordering or
            paying for such transcript by the party or counsel on
            appeal. In extraordinary circumstances, the judge


                                      -3-
J-S75012-14


           may allow for the filing of a Statement of amended
           or supplemental Statement nunc pro tunc.

Pa.R.A.P. 1925(b)(2).

     We acknowledge that it is well settled in Pennsylvania that the failure

to file a timely Rule 1925(b) statement automatically results in waiver of all

issues on appeal, regardless of the length of the delay in filing.       See

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). However, this Court

has concluded that a late 1925(b) statement by a criminal defendant

represented by counsel constitutes per se ineffectiveness, and the proper

remedy is to remand for the filing of such a statement nunc pro tunc.

Commonwealth v. Grohowski, 980 A.2d 113, 114 (Pa. Super. 2009),

citing Commonwealth v. Burton, 972 A.2d 428, 433 (Pa. Super. 2009) (en

banc); see also Commonwealth v. Myers, 86 A.3d 286, 289 (Pa. Super.

2014) (observing that if appellant’s Rule 1925(b) statement was late, “we

would be obligated as a matter of our rules of procedure to deem appellate

counsel ineffective and to remand for the filing of a Statement nunc pro

tunc.”), citing Pa.R.A.P. 1925(c)(3).     The plain text of Rule 1925(c)(3)

outlines the procedure when an appellant fails to file a court-ordered Rule

1925(b) statement.

           Rule 1925. Opinion in Support of Order

                                      …

           (c) Remand.

                                      …

                                    -4-
J-S75012-14



            (3) 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 interpreting Rule 1925(c)(3) to also extend to cases where counsel

has failed to timely file a court-ordered Rule 1925(b) statement, this Court

explained the rationale as follows.

            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.

Commonwealth v. Thompson, 39 A.3d 335, 339-340 (Pa. Super. 2012)

(emphasis in original), citing Burton, supra at 432-433. Nevertheless, we

may elect not to remand and proceed to review an appellant’s arguments in


                                      -5-
J-S75012-14


cases where the trial court has filed an opinion addressing the issues raised

in the untimely Rule 1925(b) statement.         Grohowski, supra (citation

omitted).

      As noted, the trial court ordered Appellant to file his Rule 1925(b)

statement on November 1, 2013. Trial Court Order, 11/1/13. The trial court

ordered Appellant to file the statement within 21 days of the order, i.e. on or

before November 22, 2013. Id. Appellant filed his Rule 1925(b) statement

on November 25, 2013, outside the 21-day window prescribed by the trial

court, therefore, Appellant’s Rule 1925(b) statement is patently untimely.

Appellant contemporaneously sought to extend the period of time to file a

supplemental Rule 1925(b) statement.          Motion for Extension of time,

11/25/13. In his request for additional time, counsel for Appellant averred

that he had not yet received the notes of testimony and that he had left

messages for the court reporter seeking transcripts. Id. at 2. However, the

trial court never ruled on this motion.    Appellant does not argue his Rule

1925(b) statement was timely filed nor offer any explanation for the delay in

filing his Rule 1925(b) statement or motion for extension of time to file a

supplemental statement. Appellant merely acknowledges, “[t]he trial court

never issued a ruling on this motion, accordingly, no supplemental

statement of errors was filed.” Appellant’s Brief at 7.

      Rule 1925(b) would permit a trial court to grant such an application if

it determined that the delay in the receipt of the transcripts was not


                                     -6-
J-S75012-14


attributable to counsel’s lack of diligence in attempting to acquire them.

See generally Pa.R.A.P. 1925(b)(2).       However, this does not excuse the

late filing of the request.   Our Supreme Court has clarified, “an appellant

who seeks an extension of time to file a Statement must do so by filing a

written application with the trial court, setting out good cause for such

extension,    and    requesting    an    order    granting    the    extension.”

Commonwealth v. Gravely, 970 A.2d 1137, 1143 (Pa. 2009) (emphasis in

original). An appellant’s failure to seek an extension within the time limit of

Rule 1925(b) will result in waiver of the additional issues not timely raised.

Id. “While it is clear that, whatever else we may do, we may not consider

the merits of an appeal when the Rule 1925 statement was untimely filed.”

Myers, supra (citation omitted). Therefore, because the trial court never

issued a Rule 1925(a) opinion in this matter following Appellant’s untimely

filing of his Rule 1925(b) statement, we remand this case pursuant to Rule

1925(c)(3).

      Accordingly, because we have concluded counsel has been per se

ineffective for his failure to timely file a Rule 1925(b) statement, we remand

to the trial court in order for the trial court to author a Rule 1925(a) opinion.

See   Thompson,      supra;    Growhoski,      supra;   Pa.R.A.P.   1925(c)(3).

Further, because Appellant sought to enlarge the time for filing a

supplemental statement and included a statement of good cause in both the

motion and the Rule 1925(b) statement he originally filed, to which the trial


                                      -7-
J-S75012-14


court never responded, we direct the trial court to respond to Appellant’s

request.

     Case remanded. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/2015




                                  -8-
