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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LIONEL LAWRENCE
Appellant No. 3044 EDA 2013
Appeal from the Judgment of Sentence August 27, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000867-2011
BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 06, 2015
Appellant, Lionel Lawrence, appeals from the August 27, 2013
aggregate judgment of sentence imposing a two to four year term of
imprisonment, followed by two years’ probation, after a jury found him guilty
of theft by deception, forgery, and securing execution of documents by
deception.1 After careful review, we remand to the trial court pursuant to
Pennsylvania Rule of Appellate Procedure 1925(c)(3) for proceedings
consistent with this memorandum.
It is sufficient to recount the following procedure, without reference to
the underlying factual basis that resulted in conviction, as the procedural
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1
18 Pa.C.S.A. §§ 3922(a)(1), 4101(a)(1), and 4114, respectively.
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history of this case compels our disposition. The Commonwealth charged
Appellant with the aforementioned offenses as well as theft by unlawful
taking, receiving stolen property, identity theft, and tampering with records.2
Criminal Information, 1/31/11, at 1-2. On March 20, 2011, Appellant
proceeded to a jury trial, where he represented himself with the assistance
of standby counsel.3 At the conclusion of the trial, Appellant was convicted
of theft by deception, forgery, and securing execution of documents by
deception. The remaining charges were either quashed or nolle prossed.
The trial court sentenced Appellant on August 27, 2013 and appointed
counsel to represent Appellant on appeal. On September 5, 2013, Appellant
filed a timely post-sentence motion, which the trial court denied on
September 30, 2013.
On October 29, 2013, counsel filed a timely notice of appeal. On
November 1, 2013, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Rule 1925(b). On
November 25, 2013, counsel for Appellant filed an untimely statement of
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2
18 Pa.C.S.A. §§ 3921(a), 3925(a), 4120(a), and 4104(a), respectively.
3
Appellant was ordered to participate in a mental health evaluation and was
deemed competent to participate in trial and represent himself. The record
discloses the trial court determined Appellant knowingly, intelligently, and
voluntarily waived his right to counsel pursuant to Pennsylvania Rule of
Criminal Procedure 121. The order stating this finding is an entry written
directly on the docket sheet, dated September 7, 2011, and signed by the
court. Trial Court Order, 9/7/11.
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errors complained of on appeal and a request for an extension of time to file
a supplemental statement of errors complained of on appeal following
counsel’s receipt of the trial transcripts. Rule 1925(b) Statement, 11/25/13;
Motion for Extension of time, 11/25/13. The trial court never ruled on
counsel’s request to file a supplemental statement, and counsel did not file a
supplemental statement. The certified record discloses the trial judge is now
retired and did not file a Rule 1925(a) opinion in this matter.
We begin by noting that Rule 1925(b) provides that appellants may
seek for an extension of time to file a Rule 1925(b) statement beyond the
initial timeframe ordered by the trial court.
Rule 1925. Opinion in Support of Order
…
(b) Direction to file statement of errors
complained of on appeal; instructions to the
appellant and the trial court.
…
(2) Time for filing and service.- The judge shall
allow the appellant at least 21 days from the date of
the order’s entry on the docket for the filing and
service of the Statement. Upon application of the
appellant and for good cause shown, the judge may
enlarge the time period initially specified or permit
an amended or supplemental Statement to be filed.
Good cause includes, but it is not limited to, delay in
the production of a transcript necessary to develop
the Statement so long as such delay is not
attributable to a lack of diligence in ordering or
paying for such transcript by the party or counsel on
appeal. In extraordinary circumstances, the judge
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may allow for the filing of a Statement of amended
or supplemental Statement nunc pro tunc.
Pa.R.A.P. 1925(b)(2).
We acknowledge that it is well settled in Pennsylvania that the failure
to file a timely Rule 1925(b) statement automatically results in waiver of all
issues on appeal, regardless of the length of the delay in filing. See
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). However, this Court
has concluded that a late 1925(b) statement by a criminal defendant
represented by counsel constitutes per se ineffectiveness, and the proper
remedy is to remand for the filing of such a statement nunc pro tunc.
Commonwealth v. Grohowski, 980 A.2d 113, 114 (Pa. Super. 2009),
citing Commonwealth v. Burton, 972 A.2d 428, 433 (Pa. Super. 2009) (en
banc); see also Commonwealth v. Myers, 86 A.3d 286, 289 (Pa. Super.
2014) (observing that if appellant’s Rule 1925(b) statement was late, “we
would be obligated as a matter of our rules of procedure to deem appellate
counsel ineffective and to remand for the filing of a Statement nunc pro
tunc.”), citing Pa.R.A.P. 1925(c)(3). The plain text of Rule 1925(c)(3)
outlines the procedure when an appellant fails to file a court-ordered Rule
1925(b) statement.
Rule 1925. Opinion in Support of Order
…
(c) Remand.
…
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(3) If an appellant in a criminal case was ordered to
file a Statement and failed to do so, such that the
appellate court is convinced that counsel has been
per se ineffective, 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.
Pa.R.A.P. 1925(c)(3).
In interpreting Rule 1925(c)(3) to also extend to cases where counsel
has failed to timely file a court-ordered Rule 1925(b) statement, this Court
explained the rationale as follows.
The 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.
Likewise, the untimely filing is per se ineffectiveness
because it is without reasonable basis designed to
effectuate the client’s interest and waives all issues
on appeal. Thus[,] untimely filing of the 1925
concise statement is the equivalent of a
complete failure to file. Both are per se
ineffectiveness of counsel from which
appellants are entitled to the same prompt
relief.
The view that Rule 1925(c)(3) does not apply to
untimely 1925 concise statements would produce
paradoxical results. The attorney who abandons his
client by failing to file a 1925 concise statement
would do less of a disservice to the client than the
attorney who files a 1925 concise statement beyond
the deadline for filing.
Commonwealth v. Thompson, 39 A.3d 335, 339-340 (Pa. Super. 2012)
(emphasis in original), citing Burton, supra at 432-433. Nevertheless, we
may elect not to remand and proceed to review an appellant’s arguments in
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cases where the trial court has filed an opinion addressing the issues raised
in the untimely Rule 1925(b) statement. Grohowski, supra (citation
omitted).
As noted, the trial court ordered Appellant to file his Rule 1925(b)
statement on November 1, 2013. Trial Court Order, 11/1/13. The trial court
ordered Appellant to file the statement within 21 days of the order, i.e. on or
before November 22, 2013. Id. Appellant filed his Rule 1925(b) statement
on November 25, 2013, outside the 21-day window prescribed by the trial
court, therefore, Appellant’s Rule 1925(b) statement is patently untimely.
Appellant contemporaneously sought to extend the period of time to file a
supplemental Rule 1925(b) statement. Motion for Extension of time,
11/25/13. In his request for additional time, counsel for Appellant averred
that he had not yet received the notes of testimony and that he had left
messages for the court reporter seeking transcripts. Id. at 2. However, the
trial court never ruled on this motion. Appellant does not argue his Rule
1925(b) statement was timely filed nor offer any explanation for the delay in
filing his Rule 1925(b) statement or motion for extension of time to file a
supplemental statement. Appellant merely acknowledges, “[t]he trial court
never issued a ruling on this motion, accordingly, no supplemental
statement of errors was filed.” Appellant’s Brief at 7.
Rule 1925(b) would permit a trial court to grant such an application if
it determined that the delay in the receipt of the transcripts was not
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attributable to counsel’s lack of diligence in attempting to acquire them.
See generally Pa.R.A.P. 1925(b)(2). However, this does not excuse the
late filing of the request. Our Supreme Court has clarified, “an appellant
who seeks an extension of time to file a Statement must do so by filing a
written application with the trial court, setting out good cause for such
extension, and requesting an order granting the extension.”
Commonwealth v. Gravely, 970 A.2d 1137, 1143 (Pa. 2009) (emphasis in
original). An appellant’s failure to seek an extension within the time limit of
Rule 1925(b) will result in waiver of the additional issues not timely raised.
Id. “While it is clear that, whatever else we may do, we may not consider
the merits of an appeal when the Rule 1925 statement was untimely filed.”
Myers, supra (citation omitted). Therefore, because the trial court never
issued a Rule 1925(a) opinion in this matter following Appellant’s untimely
filing of his Rule 1925(b) statement, we remand this case pursuant to Rule
1925(c)(3).
Accordingly, because we have concluded counsel has been per se
ineffective for his failure to timely file a Rule 1925(b) statement, we remand
to the trial court in order for the trial court to author a Rule 1925(a) opinion.
See Thompson, supra; Growhoski, supra; Pa.R.A.P. 1925(c)(3).
Further, because Appellant sought to enlarge the time for filing a
supplemental statement and included a statement of good cause in both the
motion and the Rule 1925(b) statement he originally filed, to which the trial
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court never responded, we direct the trial court to respond to Appellant’s
request.
Case remanded. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2015
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