Opinion
J. S12010/14 No. 3499 EDA 2012
04-09-2014
COMMONWEALTH OF PENNSYLVANIA v. MARIA BURNS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence, November 14, 2012,
in the Court of Common Pleas of Northampton County
Criminal Division at No. CP-48-SA-0000228-2012
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND JENKINS, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Appellant, Maria Burns, appeals from the judgment of sentence entered in the Court of Common Pleas of Northampton County following her conviction for disorderly conduct. We remand.
Following her conviction, appellant filed a timely notice of appeal. On January 4, 2013, the Honorable Leonard N. Zito ordered appellant to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant's counsel filed a petition to withdraw in both the Superior Court on February 12, 2013, and the Northampton County Court of Common Pleas on February 15, 2013. This court granted counsel's petition on February 25, 2013, and directed the trial court to determine if appellant was eligible for court-appointed counsel. Matthew Potts, Esq., was appointed on March 22, 2013, and subsequently entered his appearance with this court on March 27, 2013. On June 20, 2013, the trial court issued a Statement pursuant to Pa.R.A.P. 1931(b). ( See certified record, document #12.) In the Statement, the trial court stated its belief that the appeal should be dismissed because appellant had failed to file a Rule 1925(b) statement. (Statement, 6/20/13 at 3.)
Rule 1931. Transmission of the Record
. . . .Pa.R.A.P. 1931(b).
(b) Duty of lower court.After a notice of appeal has been filed the judge who entered the order appealed from shall comply with Rule 1925 (opinion in support of order), shall cause the official court reporter to comply with Rule 1922 (transcription of notes of testimony) or shall otherwise settle a statement of the evidence or proceedings as prescribed by this chapter, and shall take any other action necessary to enable the clerk to assemble and transmit the record as prescribed by this rule.
As stated above, the trial court ordered appellant to file a Rule 1925(b) statement on January 4, 2013. Appellant's counsel failed to do so. The Commonwealth submits that appellant's prior counsel was per se ineffective when he failed to file the court-ordered Rule 1925(b) statement, and the proper course of action is to remand the case for the filing of the statement nunc pro tunc and a trial court opinion. We agree.
Rule 1925(c)(3) states:
If an appellant in a criminal case was ordered to file a Statement and failed to do so, such that thePa.R.A.P. 1925(c)(3).
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.
Our review convinces us that the failure to file the Statement was per se ineffective assistance of counsel. Therefore, we are mandated to remand this matter. See Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.4 (Pa.Super. 2009) (failure to file requested Rule 1925(b) statement is per se ineffective assistance of counsel and requires remand for filing of statement nunc pro tunc ); Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa.Super. 2008) (recognizing recent amendment to Rule 1925 relaxed strict application of Lord and stating "pursuant to the amended version of Rule 1925, the complete failure by counsel to file a Rule 1925(b) statement, as ordered, is presumptively prejudicial and clear ineffectiveness, and 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. Lord, 553 Pa. 415, 719 A.2d 306 (1998).
Accordingly, we direct the return of the record in this matter to the trial court upon the filing of this Memorandum. Appellant's court-appointed counsel shall file a Pa.R.A.P. 1925(b) statement within 21 days of the trial court's receipt of the record. The trial court shall have 30 days thereafter to prepare and file its Pa.R.A.P. 1925(a) opinion. Upon the filing of the trial court opinion, the record is to be returned to the Superior Court Prothonotary within 30 days. The Superior Court Prothonotary is directed to then issue a new briefing schedule.
Case remanded for action consistent with this Memorandum. Superior Court jurisdiction retained. Panel jurisdiction retained. Judgment Entered. ___________________
Joseph D. Seletyn, Esq.
Prothonotary