Com. v. Ali, A. ( 2019 )

J-S05026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADAM ABDUL ALI :
:
Appellant : No. 1073 WDA 2018
Appeal from the Judgment of Sentence Entered June 26, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000035-2018
BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED MARCH 11, 2019
Appellant Adam Abdul Ali appeals from the judgment of sentence
following his guilty plea to simple assault and disorderly conduct.1 For the
reasons that follow, we remand for further proceedings consistent with this
memorandum.
The facts underlying this case arise from Appellant’s guilty plea to simple
assault and disorderly conduct on May 1, 2018. The trial court sentenced
Appellant to five to twenty-three months’ incarceration on June 26, 2018.
Appellant filed a motion for reconsideration of sentence, seeking a reduced
sentence. The trial court denied the motion for reconsideration on June 28,
2018. Khadija W. Horton, Esq. (Attorney Horton) represented Appellant
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2701(a)(1) and 5503(a)(4), respectively.
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during his guilty plea and at sentencing. Attorney Horton filed a timely notice
of appeal on behalf of Appellant on July 26, 2018.
The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement
by August 17, 2018. In lieu of filing a Rule 1925(b) statement, Attorney
Horton filed a statement of intent to file an Anders2 brief. The trial court
declined to file a responsive opinion, citing Attorney Horton’s notice of intent
to file an Anders brief. See Order, 9/14/18 (citing Commonwealth v.
McBride, 957 A.2d 752 (Pa. Super. 2008)).
Attorney Horton did not file an Anders brief or a petition to withdraw
under Anders. Instead, a public defender, Emily Merski, Esq. (Attorney
Merski), entered her appearance on behalf of Appellant in this Court on
October 4, 2018. Thereafter, on October 15, 2018, Attorney Horton filed a
petition to withdraw as counsel, which this Court granted on October 17, 2018.
After Attorney Merski entered her appearance and Attorney Horton withdrew,
Attorney Merski filed an advocate’s brief challenging the discretionary aspects
of the sentence.
An attorney may file a notice of intent to file an Anders brief in lieu of
filing a Rule 1925(b) statement. See Pa.R.A.P. 1925(c)(4); McBride, 957
A.2d at 758. In this case, Attorney Horton filed a notice of intent to file an
Anders brief, but did not actually file an Anders brief. Instead, she withdrew
after Attorney Merski entered her appearance. Attorney Merski subsequently
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2 Anders v. California, 386 U.S. 738 (1967).
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filed an advocate’s brief challenging the discretionary aspects of the sentence,
but did not file a Rule 1925(b) statement or petition this Court for a remand
to file a Rule 1925(b) statement nunc pro tunc. Moreover, given this
procedural history, this Court does not have the benefit of the trial court’s
opinion addressing Appellant’s sentencing claim.
Therefore, we remand for Appellant to file a Rule 1925(b) statement and
the trial court to file a responsive Rule 1925(a) opinion. See Pa.R.A.P.
1925(c)(3) (providing that where a Rule 1925(b) statement has been ordered
in a criminal case and has not been filed, “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”). Attonrey Merski shall have twenty-one days from
the date of this memorandum to file a Rule 1925(b) statement, and the trial
court shall have an additional thirty days to file a Rule 1925(a) opinion. The
trial court shall remit the record to this Court upon completion of its Rule
1925(a) opinion.
Case and record remanded with instructions. Panel jurisdiction retained.
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