Com. v. Young, D. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DERRICK YOUNG
Appellant No. 1468 WDA 2013
Appeal from the PCRA Order dated August 12, 2013
In the Court of Common Pleas of Fayette County
Criminal Division at No: CP-26-CR-0001352-2010
BEFORE: PANELLA, MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 31, 2014
Derrick Young appeals pro se from the order dated August 12, 2013
that dismissed his petition under the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-46. Because the PCRA court failed to comply with
Pennsylvania Rule of Appellate Procedure 1925(a), we remand for the filing
of a Rule 1925(a) opinion.
Appellant is serving a prison sentence of 15 to 30 years for his
conviction of rape by forcible compulsion, 18 Pa.C.S.A. § 3121(a)(2), and
other crimes. After exhausting his direct-appeal rights, Appellant filed a
timely pro se first PCRA petition in which he contended that his trial counsel
was ineffective. The PCRA court appointed Dianne Zerega, Esq. to represent
Appellant. On August 6, 2013, Ms. Zerega moved to withdraw as counsel
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and filed a Turner/Finley1 no-
petition was meritless. On August 12, 2013, the PCRA court entered the
following order:
AND NOW, this 12th day of August, 2013, upon review of the
Post-Conviction Relief Act Petition filed by Defendant and the
-
Esquire, the Petition for Relief is DENIED.
Trial Court Order, 8/12/13. The same day, the PCRA court also granted Ms.
otion to withdraw as counsel.2
Appellant filed a timely pro se notice of appeal on September 4, 2013.
With the notice of appeal, Appellant filed an unprompted concise statement
of errors complained of on appeal. On the same day, the PCRA court filed
the following statement:
AND NOW, this 4th day of September, 2013, having received the
Notice of Appeal from our ORDER DENYING the Defendant Derick
-Conviction Relief Act Petition, we find that the well-
- Finley brief entered into the record on the
th
6 day of August 2013 by appointed counsel, Dianne Zerega,
____________________________________________
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
The PCRA court failed to give notice to Appellant and 20 days to respond
prior to dismissing the petition. See Pa.R.Crim.P. 907(1) (providing that a
shall give notice . .
without a hearing) (emphasis added). But see Commonwealth v.
Pursell, 749 A.2d 911, 917 n.7 (Pa. 2000) (criticizing a PCRA court for
failing to provide a Rule 907 notice, but rejecting the claim on appeal
because the PCRA petition was facially untimely); Commonwealth v.
Taylor
.
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Esq., has squarely addressed all relevant issues raised on
appeal. Therefore, believing all issues to be without merit, the
Court shall rely on the record.
Trial Court Statement in lieu of Opinion Pursuant to Pa.R.A.P. 1925,
9/5/2013. Th
concise statement.3
____________________________________________
3
The law is unclear as to whether Appellant is limited to the issues in his
concise statement even though the PCRA court did not order him to file one.
In Commonwealth v. Snyder, 870 A.2d 336, 341 (Pa. Super. 2005), this
Court held that the appellant waived all issues not included in his
unprompted concise statement.
It is of no moment that appellant was not ordered to file a
1925(b) statement. Appellant filed his statement
contemporaneously with his notice of appeal. Accordingly, there
was no need for the trial court to order him to file a 1925(b)
statement. If we were to find that because he was not ordered
to file a 1925(b) statement, he has not waived the issues he
neglected to raise in it, we would, in effect, be allowing appellant
to circumvent the requirements of the Rule.
Id. However, in our recent decision in Commonwealth v. Antidormi, 84
A.3d 736, 744-45 (Pa. Super. 2014), we refused to conduct a waiver inquiry
because the trial court did not order the appellant to file a concise
statement, even though he did so.
Because the trial court did not order the filing of a Rule 1925(b)
statement, we will not conduct a waiver inquiry pursuant to
Pa.R.A.P. 1925(b)(4). The requirements of Rule 1925(b) are not
invoked in cases where there is no trial court order directing an
appellant to file a Rule 1925(b) statement. See
Commonwealth v. Thomas, 451 A.2d 470, 472 n. 8 (Pa.
statement of [errors] complained of on appeal and appellant
must fail to comply with such directive before this Court can find
see also Commonwealth v. Hess, 810 A.2d 1249,
1252 (Pa. 2002).
Antidormi, 84 A.3d at 745 n.7 (parallel citations omitted).
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Commonwealth
v. Ford, 44 A.3d 1190, 1194 (P
Id.
Id. When a PCRA court dismisses a petition without a
Id.
Commonwealth v. Keaton, 45 A.3d 1050, 1094 (Pa. 2012).
Rule 1925(a) provides:
(1) General rule. Except as otherwise prescribed by this rule,
upon receipt of the notice of appeal, the judge who entered the
order giving rise to the notice of appeal, if the reasons for the
order do not already appear of record, shall forthwith file of
record at least a brief opinion of the reasons for the order, or for
the rulings or other errors complained of, or shall specify in
writing the place in the record where such reasons may be
found.
absence of a trial court opinion poses a substantial impediment to
meaningful and effective appellate review Commonwealth v. Grundza,
819 A.2d 66, 68 (Pa. Super. 2003) (quoting Commonwealth v. Lord, 719
in lieu of a Rule 1925(a) opinion that explains the bases for its rulings.
Yankowski v. Katz, Inc., 662 A.2d 665, 667 n.3 (Pa. Super. 1995).
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In Commonwealth v. Williams, 732 A.3d 1167, 1174 (Pa. 1999), for
Supreme Court strongly disapproved of the PC
remanded for the filing of a proper opinion. Id. at 1176. Though the
Williams court was motivated, in part, by the capital nature of the case, the
holding has been extended to non-capital cases. Commonwealth v.
Fulton, 876 A.2d we hold that the rule in
. . . Williams applies equally to non-
are not of record. The PCRA court failed to explain why it
PCRA petition meritless.
-merit letter for
two reasons. First, Turner/Finley
record by the PCRA court. Commonwealth v. Rykard, 55 A.3d 1177, 1184
(Pa. Super. 2012); see also Fulton, 876 A.2d at 345 (noting that a PCRA
independent judicial analysis in support
of dispositive orders so as to better focus appeals and better facilitate the
appellate
cannot review the sufficiency of a no-merit letter filed in the PCRA court.
Commonwealth v. Pitts, 981 A.2d 875, 880 (Pa. 2009). Were we to
-merit letter, we would
need to weigh the sufficiency of that letter, in violation of Pitts.
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Here, the PCRA court entered a one-sentence dismissal order. After
Appellant filed his notice of appeal with an unprompted concise statement,
the PCRA court incor -merit letter in a second one-
sentence statement in lieu of a Rule 1925(a) opinion. In sum, the PCRA
have nothing to
review regarding its factual findings in support of its conclusion that
a Rule 1925(a) opinion. The PCRA court must file its opinion within 30 days
of the date of remand.
Case remanded for the filing of a Rule 1925(a) opinion. Panel
jurisdiction retained.
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