Com. v. Savage, W. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM JUNIOR SAVAGE :
:
Appellant : No. 330 WDA 2020
Appeal from the Judgment of Sentence Entered February 3, 2020
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000204-2019
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JANUARY 22, 2021
Appellant, William Junior Savage, appeals from the aggregate judgment
of sentence of nine to twenty-four months of confinement, which was imposed
after he pleaded guilty to: corruption of minors – defendant age 18 or above;
criminal attempt to commit indecent assault against person less than 13 years
of age; and indecent exposure.1 With this appeal, appellate counsel has filed
a petition to withdraw and an Anders2 brief, stating that the appeal is wholly
frivolous. Additionally, Appellant has pro se filed a “Petition for Appointment
of Counsel for Appeal.” We grant appellate counsel’s petition to withdraw,
grant Appellant’s petition for appointment of new counsel, and remand to the
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6301(a)(1)(ii), 901(a), and 3127(a), respectively.
2 Anders v. California, 386 U.S. 738 (1967).
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trial court for appointment of new counsel and for further proceedings
consistent with this memorandum.
On December 20, 2019, Appellant pro se filed a petition with the trial
court requesting that his counsel be dismissed and new counsel appointed,
which the trial court denied that same day. Motion for Withdrawal of Counsel
Inter Alia Ineffective Assistance of Counsel, 12/20/2019; Order, 12/20/2019.
On February 3, 2020, Appellant entered a guilty plea to the aforementioned
charges and proceeded immediately to sentencing.
On February 14, 2020, Appellant pro se filed this timely direct appeal.
On February 28, 2020, Appellant pro se filed another petition requesting that
his counsel be dismissed and new counsel appointed. Motion for Withdrawal
of Counsel Inter Alia Ineffective Assistance of Counsel, 2/28/2020. There is
nothing in the record indicating that the trial court responded to this request.
On March 10, 2020, the trial court entered an order directing Appellant to file
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).3 On March 23, 2020, Appellant pro se filed a concise statement of
errors, even though there is nothing in the record demonstrating that his
counsel had been dismissed or had been permitted to withdraw. That same
day, this Court entered an order stating that it had reviewed the docket and,
upon discovering that Appellant was represented by counsel, sua sponte
entered counsel’s appearance; the order forwarded Appellant’s pro se filings
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3 A stamp on the order indicates that it was served on Appellant’s counsel.
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to counsel. On April 1, 2020, the trial court filed a one-page statement in lieu
of opinion pursuant to Pa.R.A.P. 1925(a), finding all claims frivolous and/or
waived. On August 26, 2020, counsel filed an Anders brief with this Court.
Before we address the merits of Appellant’s issues on appeal, we must
first determine whether Appellant has preserved his claims for our review.
Appellant was represented by counsel at the time his pro se filings were
docketed by the trial court – i.e., his notice of appeal and concise statement.4
We note that pro se filings submitted by counseled defendants are
generally treated as legal nullities. See Commonwealth v. Ali,
608 Pa. 71, 10 A.3d 282, 293 (2010). However, this Court has
also recognized that a counseled defendant may act on his own
behalf to protect important rights where counsel remains
technically attached to the case, but is no longer serving his
client’s interest. See Commonwealth v. Williams, 151 A.3d
621, 624 (Pa. Super. 2016) (requiring this Court to docket a
timely pro se notice of appeal filed by counseled litigant).
Commonwealth v. Muhammed, 219 A.3d 1207, 1210 n.4 (Pa. Super.
2019). Accordingly, this Court was required to docket Appellant’s pro se
notice of appeal despite Appellant being represented by counsel.
Muhammed, 219 A.3d at 1210 n.4 (citing Commonwealth v. Williams, 151
A.3d 621, 624 (Pa. Super. 2016)).
However, we find no case law allowing a concise statement to be filed
pro se by an appellant who is represented by counsel. Ergo, that concise
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4 The trial court never responded to Appellant’s second request for new
counsel, and, consequently, Appellant’s trial counsel continued to represent
him.
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statement was a legal nullity, thereby failing to preserve all challenges raised
therein.
Nevertheless, “[t]he complete failure to file the 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.”
Commonwealth v. Burton, 973 A.2d 428, 432 (Pa. Super. 2009) (en banc).
If counsel fails to file a concise statement pursuant to Pa.R.A.P. 1925(b) before
the trial court files an opinion pursuant to Pa.R.A.P. 1925(a), the court in its
opinion should note the per se ineffectiveness of counsel and permit counsel
to file a statement nunc pro tunc or appoint new counsel, “because a failure
to comply with the order would prohibit appellate review.” Commonwealth
v. Thompson, 39 A.3d 335, 341 n.11 (Pa. Super. 2012) (citing Burton, 973
A.2d 432 (“Filing of Rule 1925 concise statement when ordered is a
‘prerequisite to appellate merits review’ and is ‘elemental to an effective
perfection of the appeal.’”)).
In the current action, counsel failed to serve his client’s interest by doing
nothing after Appellant entered his plea. See Muhammed, 219 A.3d at 1210
n.4. Appellant filed a pro se notice of appeal and the court-ordered Rule
1925(b) concise statement, because his counsel failed to file either. Given
counsel’s consistent and continuous per se ineffectiveness, we remand this
case back to the trial court with the directive to remove current counsel and
to appoint new counsel to assist Appellant. See Burton, 973 A.2d at 431-33;
Thompson, 39 A.3d at 341. In doing so, we hence grant appellate counsel’s
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petition to withdraw and likewise grant Appellant’s petition for appointment of
new counsel.
To restore Appellant’s constitutional rights, new counsel must
promptly5 review Appellant’s claims, file any post-sentence motions that he
or she deems prudent and, if necessary, file an appeal. If ordered to do so by
the trial court, new counsel must file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) or a statement of intent to file an
Anders brief pursuant to Pa.R.A.P. 1925(c)(4), in lieu of filing a concise
statement. New counsel may thereafter file an advocate’s brief to this Court
or a new Anders brief. In other words, new counsel may file proper post-
sentence motions and, depending on the outcome, a counseled appeal.
Accordingly, Appellant can be placed in the same position he would have been
in if his current counsel had performed his duties, and Appellant’s issues may
be properly preserved for the trial court and any subsequent appellate review.
Petition to withdraw granted. Petition for appointment of new counsel
granted. Case remanded with instructions. Jurisdiction relinquished.
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5 While we would normally include a date by which new counsel must be
appointed and a chronology for any filings by new counsel, we are reluctant
to issue a specific timeline given the coronavirus disease 2019 (“COVID-19”)
pandemic. Instead, we relinquish panel jurisdiction at this time so that the
parties and the trial court may begin the appellate process anew, and we direct
the court and the parties to comply with the standard timing requirements as
much as possible.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2021
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