In Re: Robertson, K. Appeal of: Robertson, K. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: KASHIF ROBERTSON IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: KASHIF ROBERTSON
No. 1535 MDA 2015
Appeal from the Order Entered August 10, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-MD-0000771-2015
BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED AUGUST 23, 2016
Appellant, Kashif Robertson, appeals pro se from the order denying his
motion for arrest of judgment and/or appeal nunc pro tunc. Upon review,
we vacate and remand for further proceedings.
Appellant’s motion alleged the following facts: On September 11,
2008, Appellant was cited for violating a Harrisburg ordinance by playing
loud noise on his car stereo. He claims to have responded to the citation by
pleading not guilty and requesting a trial, though the relevant Magisterial
District docket contains no notation of that plea. On August 6, 2010, a
Magisterial District Justice (MDJ) issued a bench warrant for Appellant’s
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*
Former Justice specially assigned to the Superior Court.
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arrest,1 and on April 7, 2012, Appellant was arrested on that outstanding
bench warrant. Motion for Arrest of Judgment and/or Appeal Nunc Pro Tunc,
5/22/15, at 2.
The Magisterial District docket states that Appellant was released on
April 18, 2012 after a guilty plea was entered on his behalf. The docket also
states that Appellant was not present when the guilty plea was entered. It is
unclear why Appellant would have been released from custody without first
being brought before the MDJ for entry of the plea and disposition of the
charges against him. Appellant claims he received no notice of entry of the
plea and that he would have challenged the legality of the arrest warrant if
he had received notice.
Appellant filed in the Court of Common Pleas of Dauphin County a
motion for arrest of judgment and/or appeal nunc pro tunc in which he also
sought to proceed in forma pauperis. This motion was denied in an August
10, 2015, order stating that the motion was moot. The order explained:
Magistrate District Judge George A. Zozos entered on April
18, 2015 that the “Penalty Satisfied.” No monies are
neither due, nor do active warrants exist. The Bench
Warrant was returned served on April 7, 2012; as such the
Bench Warrant was served upon the defendant and
completed.
Order, 8/10/15.
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1
At the time the bench warrant was issued, Appellant was incarcerated
on a separate matter, the nature of which is not disclosed in the record. He
was paroled on that matter in 2011.
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On August 21, 2015, Appellant filed a timely appeal from the trial
court’s August 10, 2015 order. The trial court then issued an order, dated
September 28, 2015, and docketed October 2, 2015, directing Appellant to
file a concise statement of matters complained of on appeal within twenty-
one days of the date of entry of the order on the docket. 1925(b) Order,
10/2/15. As explained below, Appellant did not file a Rule 1925 statement.
On November 6, 2015, the trial court issued an opinion, which in its
entirety states as follows:
[Appellant] appeals the Trial Court’s Order of
August 10, 2015 which denied [Appellant’s] Motion
for In Forma Pauperis and the Motion for Arrest of
Judgment.
As set forth in our August 10, 2015 Order,
[Appellant’s] requests for relief relate to a case
before Magisterial District Judge George A. Zozos at
Docket Number MJ-12105-NT-002038-2008. That
docket reflects that on April 18, 2015, MJD Zozos
entered an Order which reflected “Penalty Satisfied.
No monies due nor do active warrants exist.” The
record further reflects that a bench warrant was
served upon [Appellant] and completed.
Accordingly, we ruled that [Appellant’s] claim for
Motion for Arrest of Judgment of Kashif Robertson
was moot, and we denied in forma pauperis status.
[Appellant] filed a Notice of Appeal on August
21, 2015. We directed the filing of a Concise
Statement of Matters Complained of on Appeal on
September 28, 2015. [Appellant] has filed no
Concise Statement. Accordingly, claims or issues
related to this court’s August 10, 2015 Order are
waived.
Trial Court Opinion, 11/6/15, at 1.
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On December 7, 2015, Appellant filed an application for leave to file
his Pa.R.A.P. 1925(b) statement nunc pro tunc. The application explained
that he had filed a change of address with the Dauphin County Clerk of
Courts on September 20, 2015, and never received at his new address the
October 2, 2015 order directing his compliance with Pa.R.A.P. 1925(b).
On January 12, 2016, the trial court denied Appellant’s application for
leave to file his Rule 1925(b) statement nunc pro tunc, stating in its order
that it had already filed an opinion in the matter “which addresses the merits
without need for a 1925 statement.” Order, 1/12/16 (referencing the
November 6, 2015, opinion). Notwithstanding the trial court’s order,
Appellant filed a Rule 1925(b) statement on January 12, 2015.
On appeal to this Court, Appellant presents a single issue for our
review, as stated:
DID THE TRIAL COURT ERR IN DENYING
APPELLANT’S MOTION FOR ARREST OF JUDGMENT
AND OR APPEAL NUNC PRO TUNC UNDER 42
PA.CONS.STAT.SEC 5504(B) AS MOOT WHERE THE
MAGISTERIAL DISTRICT JUSTICE COMMITTED
FRAUD OR ITS EQUIVALENT BY INVALIDLY ISSUING
A BENCH WARRANT FOR APPELLANT ABSENT THE
REQUIRED NOTICE, HOLDING A HEARING IN
ABSENTIA AND ENTERING A UNKNOWING,
UNINTELLIGENT, AND INVOLUNTARY GUILTY PLEA
ON HIS BEHALF ALTHOUGH AT THE TIME HE WAS IN
THE CUSTODY OF [THE] DAUPHIN COUNTY PRISON,
AND DENYING APPELLANT ANY NOTICE OF THAT
COURT’S ACTION AND HOW TO PERFECT AN APPEAL
OF THAT DECISION WHICH COLLATERALLY
RESULTED IN HIS CONVICTION AT 2526 CR 2012,
IN DAUPHIN COUNTY?
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Appellant’s Brief at 3.
Initially, we note that our review of the certified record confirms
Appellant’s claim that on September 21, 2015, he filed correspondence with
the Dauphin County Clerk of Courts advising of his address change effective
September 20, 2015, from incarceration at SCI Houtzdale to his residential
address in Harrisburg. This filing specifically states that Appellant “was
anticipating [the trial court] to issue a 1925(b) order . . . [and] to please
forward a copy of the order to the below listed address.” Letter, 9/21/15.
Review of the record establishes that this did not happen. The record
includes the trial court’s October 2, 2015 order directing Rule 1925(b)
compliance, which states at the bottom of the page that it was mailed to
Appellant at 209 Institution Drive, Houtzdale, PA. Order, 10/2/15. This was
the former address for Appellant while he was incarcerated, not the
residence he provided in his September 21, 2015 correspondence to the
court. Accordingly, the record supports Appellant’s account of his attempts
to comply with Pa.R.A.P. 1925(b). As such, we cannot agree with the trial
court that Appellant waived his claims for failure to comply with Pa.R.A.P.
1925(b). See generally Commonwealth v. Hart, 911 A.2d 939, 940-41
(Pa. Super. 2006).
On the merits, Appellant contends that he “was never produced at the
hearing held in this matter on April 18, 2012 before [the MDJ], as required
. . . as he was in the custody of [D]auphin [C]ounty [P]rison at the time of
the hearing and was not produced at the hearing as required by county
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rule.” Appellant’s Brief at 8. He adds that he “was continuously
incarcerated since the date of his arrest for the summary warrant issued,
and was denied personally from obtaining any information from the District
Justice’s office after many ignored requests.” Id. He also maintains that he
did not learn about the disposition of this matter as a non-present guilty plea
by the MDJ until May 4, 2015, when he received the docket statement from
his mother via U.S. Mail. Id. at 7-8.
The docket entries in the certified record confirm that at MJ-12105-NT-
00020238-2008, Appellant was cited on September 11, 2008, pursuant to
local ordinance § 3-343 §§ 10 1, for “noise prohibited, loud stereo to
disturb.” The docket also indicates that Appellant was “case confined” in the
Dauphin County Prison on this offense from April 7, 2012 through April 18,
2012 for “failure to post collateral,” and that a guilty plea was entered to the
charge on April 18, 2012. As noted, the docket’s “Disposition/Sentencing
Details” section also confirms that Appellant was not present for this
disposition, although it is unclear why he could not be produced to enter a
plea prior to his apparent release from custody on that same day. 2 In his
appeal, Appellant argues that he had a right to be present and that he would
have contested his guilt if he were present.
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2
Our confusion about what happened is compounded by the
Commonwealth’s failure to file a Brief for Appellee, in violation of the Rules
of Appellate Procedure.
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Given the foregoing, we are constrained to vacate the order denying
Appellant’s motion for arrest of judgment and to remand this case to the
trial court for further proceedings and for clarification of what happened on
April 18, 2012. Although the trial court stated in its November 6, 2015
opinion that it denied Appellant’s motion for arrest of judgment because the
bench warrant was “completed” and Appellant’s claim was “moot,” it is
Appellant’s apparent contention that he never intended to plead guilty and
that the plea improperly was entered for him without his knowledge or
consent. If that is correct, then the judgment against him is not moot, even
though Appellant has no further penalty to satisfy under the MDJ’s
disposition. The trial court did not address Appellant’s claims relative to his
plea before the MDJ or Appellant’s request for a nunc pro tunc appeal from
that disposition. Accordingly, we remand for further proceedings in
accordance with this memorandum.
Order vacated and case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2016
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