Com. v. Lehman, R. ( 2022 )

J-A25043-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD A. LEHMAN :
:
Appellant : No. 379 WDA 2021
Appeal from the Judgment of Sentence Entered February 2, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003613-2019
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
JUDGMENT ORDER BY COLINS, J.: FILED: JUNE 13, 2022
Before this Court is the application for remand filed by Appellant’s
appointed counsel, the Erie County Office of Public Defender (“Public
Defender”). We remand for additional proceedings consistent with this
judgment order.
We briefly address the procedural history of this matter. Appellant
entered a guilty plea to robbery1 on October 28, 2020 and he was sentenced
on February 2, 2021. Appellant filed a timely post-sentence motion, which
the trial court denied on February 17, 2021. Appellant filed a notice of appeal
on March 22, 2021. The trial court then entered an order directing Appellant
to file a concise statement of errors complained of on appeal pursuant to Rule
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3701(a)(1)(iv).
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of Appellate Procedure 1925(b), Pa.R.A.P. 1925(b), within 21 days. Appellant
filed a Rule 1925(b) statement with the trial court, albeit beyond the 21-day
deadline imposed in the trial court’s order.
The trial court filed a Rule 1925(a) opinion, finding waiver of Appellant’s
appellate issue on the grounds that his notice of appeal and Rule 1925(b)
statement were both untimely; the trial court additionally found waiver on the
basis that his concise statement was so vague that the court could not identify
the issue that was being raised. Trial Court Opinion, 5/13/21, at 4-6.
We issued a prior memorandum decision in this matter on February 8,
2022. See Commonwealth v. Lehman, No. 379 WDA 2021, 2022 WL
366881 (Pa. Super. Feb. 8, 2022) (unpublished memorandum). We concluded
that Appellant’s notice of appeal was untimely but that his late appeal was
excused based upon a breakdown in the court’s operations as the order
denying Appellant’s post-sentence motion did not advise Appellant of his
appeal rights. Id. at *1-2. However, we agreed with the trial court that
Appellant waived his appellate issue based upon the untimeliness of the Rule
1925(b) statement. Id. at *2. Pursuant to Commonwealth v. Burton, 973
A.2d 428, 432-33 (Pa. Super. 2009) (en banc), we found that the untimely
filed Rule 1925(b) statement constituted per se ineffective assistance of
counsel. Lehman, 2022 WL 366881, at *2-3. Moreover, because the trial
court was unable to discern the nature of Appellant’s issue due to the
vagueness of the untimely Rule 1925(b) statement, we determined that
remand was necessary. Id. at *3. We therefore directed the trial court on
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remand to appoint Appellant new counsel within 15 days and to then allow for
the filing of another Rule 1925(b) statement and Rule 1925(a) opinion. Id.
Following remand, on February 17, 2022, the trial court entered an
order appointing the Public Defender as counsel for Appellant and directing
the filing of a new Rule 1925(b) statement within 21 days. On May 26, 2022,
the trial court issued a Rule 1925(a) opinion noting that a new 1925(b)
statement had not been filed and no request for an extension of time to do so
had been received as of that date. Therefore, the trial court found that
Appellant had waived any appellate issues and returned the certified record to
this Court.
On May 27, 2022, the Public Defender filed its application for remand
indicating that it had no record of receipt of the trial court’s February 17, 2022
order. The Public Defender requested that the case be again remanded to the
trial court for appointment of new counsel from the list of contract counsel
due to the Public Defender’s representation of Appellant’s co-defendant.
As in our prior determination in this matter, we conclude that the Public
Defender was per se ineffective for failing to file a Rule 1925(b) statement on
behalf of Appellant. See Burton, 973 A.2d at 432 (“The complete failure to
file the [Rule] 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.”); see also Pa.R.A.P. 1925(c)(3). Moreover, as
the trial court has not filed an opinion addressing the issues sought to be
raised on appeal, we conclude that remand is necessary for the appointment
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of new counsel, the filing of a statement nunc pro tunc, and the preparation
of a new opinion by the trial court. Pa.R.A.P. 1925(c)(3).
Accordingly, we again remand this matter to the trial court to appoint
new counsel for Appellant within 15 days of the date that the certified record
is returned to the trial court. New counsel shall file a Rule 1925(b) statement
with the trial court within 21 days of the date of appointment, unless extended
by the trial court. The trial court shall file a supplemental Rule 1925(a)
opinion, or a statement that no further opinion is necessary, within 30 days of
the filing of the Rule 1925(b) statement. The trial court shall include the Rule
1925(b) statement and supplemental opinion, or statement that no further
opinion is necessary, in the certified record.
Case remanded with instructions. Jurisdiction retained.
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