J-S65041-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FAROUK JUNINOE RIVERA,
Appellant No. 1050 EDA 2014
Appeal from the Judgment of Sentence July 8, 2013
in the Court of Common Pleas of Monroe County
Criminal Division at No.: CP-45-CR-0000550-2010
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 25, 2015
Appellant, Farouk Juninoe Rivera, appeals nunc pro tunc from the
judgment of sentence imposed after a Gagnon1 hearing for a probation
violation, following an open guilty plea to unlawful use of a computer.2 We
affirm.
The trial court summarized the procedural history of this case as
follows:
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*
Retired Senior Judge assigned to the Superior Court.
1
See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (probationer is
entitled to a “preliminary hearing . . . to determine whether there is
probable cause to believe that he has committed a violation of his [probation
(Gagnon I)], and the other a somewhat more comprehensive hearing prior
to the making of the final revocation decision [(Gagnon II)].”).
2
18 Pa.C.S.A. § 7611(a)(1).
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On March 5, 2010, Appellant was arrested by the Pocono
Mountain Regional Police Department in connection with several
fraudulent bank transactions.
On March 12, 2010, Appellant waived his preliminary
hearing. Accordingly, on April 26, 2010, a [c]riminal
[i]nformation was filed against Appellant, charging him with the
following five counts: [u]nlawful [u]se of a [c]omputer, graded
as a third degree felony (18 Pa.C.S.A. § 7611(a)(1)); [f]orgery—
[u]nauthorized [a]ct in [w]riting, graded as a second degree
felony (18 Pa.C.S.A. § 4101(a)(2)); [f]orgery—[u]tters [f]orged
[w]riting, graded as a third degree felony (18 Pa.C.S.A. §
4101(a)(3)[)]; [t]heft [b]y [d]eception—[f]alse [i]mpression,
graded as a first degree misdemeanor (18 Pa.C.S.A. §
3922(a)(1)), and; [c]omputer [t]respass—[t]ransfer of [f]unds,
graded as a third degree felony (18 Pa.C.S.A. § 7615(a)(4)).
On June 22, 2010, Appellant pleaded guilty to [c]ount
[one], of the [c]riminal [i]nformation, [u]nlawful [u]se of a
[c]omputer, in exchange for the Commonwealth’s agreement to
nolle prosequi the remaining four charges.
On September 1, 2010, Appellant was sentenced to a
period of incarceration not less than eleven[-]and[-]one[-]half
(11 ½) months nor more than twenty[-]three (23) months to be
followed by a period of one year of probation. Additionally,
Appellant was ordered to make restitution to PNC Bank in the
amount of $1,022.00 and to PPL Electric Utilities in the amount
of $700.00.
On September 13, 2010, Appellant filed a [m]otion for
[r]econsideration of [s]entence. After a hearing on the matter,
said [m]otion was denied by [o]rder of [the trial c]ourt dated
September 17, 2010 [and filed September 28, 2010].
On October 18, 2010, the Commonwealth filed to nolle
prosequi Counts II through V of the [c]riminal [i]nformation. By
[o]rder of [the trial c]ourt dated October 21, 2010 [and filed
October 22, 2010], said [m]otion was granted.
On August 1, 2011, Appellant filed a [p]etition for [p]arole.
After a hearing on the matter, said [m]otion was granted by
[o]rder of [the trial c]ourt dated August 15, 2011 [and filed
August 17, 2011].
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On May 30, 2013, after Appellant maxed on his parole and
was towards the end of his period of probation, Appellant was
arrested by the Wilkes-Barre Township Police Department and
charged with two counts each of [i]dentity [t]heft, [c]riminal
[u]se of a [c]ommunication [f]acility, [a]ccess [d]evice [i]ssued
to [a]nother [w]ho [d]id [n]ot [a]uthorize [u]se, and [t]heft by
[d]eception. Appellant was incarcerated in the Luzerne County
Correctional Facility with bail set at $10,000.00.
On June 3, 2013, the Commonwealth filed a [p]etition for
[v]iolation of [p]robation in connection with the above captioned
case, alleging that Appellant’s arrest in Luzerne County violated
the terms of his probation. A copy of this petition was served on
Appellant’s counsel of record, the Monroe County Public
Defender Office.
On July 2, 2013, a Gagnon I hearing was held at which
time [the trial c]ourt determined that there was probable cause
to detain Appellant for a Gagnon II hearing. Said Gagnon II
hearing was held on July 8, 2013 after which Appellant’s
probation was revoked by [o]rder of [the trial c]ourt. Appellant
was then sentenced to a period of incarceration not less than
twenty[-]one (21) months nor more than forty[-]two (42)
months with a time served credit of eleven[-]and[-]a[-]half (11
½) months. Throughout the course of the probation revocation
proceedings, Appellant was represented by Attorney Jason LaBar
of the Monroe County Public Defender Office.
(Trial Court Opinion, 5/14/14, at 1-3).
Appellant filed a pro se petition for modification of sentence on August
6, 2013, which the trial court ordered the Monroe County Clerk of Courts to
forward to the Monroe County Public Defender Office. (See Order, 8/08/13).
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On October 18, 2013, Appellant filed a pro se petition pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, seeking
release from custody, correction of sentence, and modification of sentence.3
Appellant filed a second pro se PCRA petition on October 30, 2013
seeking release from custody, correction of sentence, and vacation of
sentence.4
On November 12, 2013, the court appointed Attorney Donald M. Leeth
to represent Appellant. Counsel filed an amended PCRA petition on
December 2, 2013.5 The PCRA court held a hearing on January 21, 2014,
and reinstated Appellant’s direct appeal rights nunc pro tunc on February 27,
2014.
Appellant timely appealed on March 25, 2014. On March 27, 2014, the
trial court entered an order directing Appellant to file a Rule 1925(b)
statement within twenty-one days, by April 17, 2014. See Pa.R.A.P.
1925(b). The order advised that “any issue not properly included in the
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3
Appellant claimed that the sentence following his probation violation
hearing resulted in him receiving a second sentence for the same charge he
pleaded guilty to on June 22, 2010. (See PCRA Petition, 10/18/13, at 3).
4
Appellant claimed that he did not receive written notice of the probation
violation proceedings. (See PCRA Petition, 10/30/13, at 3).
5
In addition to the issues raised in Appellant’s pro se petitions, counsel
asserted that “[p]rior counsel rendered ineffective assistance of counsel by
failing to pursue a [p]etition for [r]econsideration of the sentence . . . [and]
an appeal.” (Amended PCRA Petition, 12/02/13, at unnumbered page 2
¶11).
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concise statement timely filed and served pursuant to subdivision (b) shall
be deemed waived.” (Concise Statement Order, 3/27/14, at 1).
On April 17, 2014, Appellant requested an extension within which to
file his Rule 1925(b) statement due to a delay in receiving the notes of
testimony. (See Motion for Extension of Time, 4/17/14, at unnumbered
page 2 ¶6). The trial court granted Appellant’s motion on April 21, 2014 and
directed him to file his Rule 1925(b) statement on or before May 5, 2014.
(See Concise Statement Order, 4/21/14, at 1). Appellant failed to file his
statement timely, instead, filing it eight days late on May 13, 2014. The trial
court entered its Rule 1925(a) opinion on May 14, 2014. See Pa.R.A.P.
1925(a).
Appellant raises the following issues for our review:
1. Whether the Commonwealth failed to notify [Appellant] in
writing of [the] probation violation charges?
2. Whether Appellant may challenge the discretionary aspects
of sentencing after revocation of a split sentence?
A. If so, whether the sentence imposed following
revocation of Appellant’s split sentence was
excessive?
(Appellant’s Brief, at 4).
Before we may address the merits of Appellant’s issues, we must
determine whether he properly preserved them for our review. Rule
1925(b) provides, in relevant part:
(b) Direction to file statement of errors complained of on
appeal; instructions to the appellant and the trial court.—
If the judge entering the order giving rise to the notice of appeal
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(“judge”) desires clarification of the errors complained of on
appeal, the judge may enter an order directing the appellant to
file of record in the trial court and serve on the judge a concise
statement of the errors complained of on appeal (“Statement”).
* * *
(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. . . . In
extraordinary circumstances, the judge may allow for the filing
of a Statement or amended or supplemental Statement nunc pro
tunc.
(3) Contents of order.—The judge’s order directing the
filing and service of a Statement shall specify:
(i) the number of days after the date of entry of the
judge’s order within which the appellant must file
and serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the judge
pursuant to paragraph (b)(1);
(iv) that any issue not properly included in the
Statement timely filed and served pursuant to
subdivision (b) shall be deemed waived.
4) Requirements; waiver.
* * *
(vii) Issues not included in the Statement
and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.
Pa.R.A.P. 1925(b)(2), (3), (4)(vii).
An en banc panel of this Court has held:
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Our Supreme Court intended the holding in
[Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)] to operate
as a bright-line rule, such that “failure to comply with the
minimal requirements of Pa.R.A.P. 1925(b) will result in
automatic waiver of the issues raised.” Commonwealth v.
Schofield, . . . 888 A.2d 771, 774 ([Pa.] 2005) (emphasis
added); see also [Commonwealth v.] Castillo, 888 A.2d
[775, 780 (Pa. 2005)]. Given the automatic nature of this type
of waiver, we are required to address the issue once it comes to
our attention. Indeed, our Supreme Court does not countenance
anything less than stringent application of waiver pursuant to
Rule 1925(b): “[A] bright-line rule eliminates the potential for
inconsistent results that existed prior to Lord, when . . .
appellate courts had discretion to address or to waive issues
raised in non-compliant Pa.R.A.P. 1925(b) statements.” Id.
Succinctly put, it is no longer within this Court’s discretion to
ignore the internal deficiencies of Rule 1925(b) statements.
* * *
Stated simply, it is no longer within this Court’s discretion
to review the merits of an untimely Rule 1925(b) statement
based solely on the trial court’s decision to address the merits of
those untimely raised issues. Under current precedent, even if a
trial court ignores the untimeliness of a Rule 1925(b) statement
and addresses the merits, those claims still must be considered
waived: Whenever a trial court orders an appellant to file a
concise statement of [errors] complained of on appeal pursuant
to Rule 1925(b) the appellant must comply in a timely manner.
Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d
222, 224-25 (Pa. Super. 2014) (en banc) (emphases in original) (some
citations and quotation marks omitted).
Here, the record reflects that on March 27, 2014, the trial court issued
an order in technical compliance with Rule 1925(b) requiring Appellant to file
a statement “within twenty-one (21) days from the date of this [o]rder’s
entry on the docket[.]” (Concise Statement Order, 3/27/14, at 1). The
order provided that “any issue not properly included in the concise
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statement timely filed and served pursuant to subdivision (b) shall be
deemed waived.” (Id.).
On April 17, 2014, due to a delay in receiving the notes of testimony,
Appellant requested an extension within which to file his Rule 1925(b)
statement. (See Motion for Extension of Time, 4/17/14, at unnumbered
page 2). The trial court granted him an extension to May 5, 2014. (See
Concise Statement Order, 4/21/14, at 1). Appellant filed his untimely
concise statement eight days late, on May 13, 2014.
Based on this record, because Appellant did not timely file his Rule
1925(b) statement, we conclude that he failed to comply with the minimal
requirements of Rule 1925(b). Consequently, he has waived all of his issues
on appeal. See Pa.R.A.P. 1925(b)(4)(vii); see also Greater Erie Indus.
Dev. Corp., supra at 224-25. Accordingly, we may not address the merits
of those claims. See Greater Erie Indus. Dev. Corp., supra at 227.6
Judgment of sentence affirmed.
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6
We note that our “Rules of Appellate Procedure provide for limited
instances in which appellate courts may remand [criminal] cases to trial
courts in order to cure defects in Rule 1925 practice.” Greater Erie Indus.
Dev. Corp., supra at 227 n.7. Here, none of the circumstances are
applicable. See Pa.R.A.P. 1925(c).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2015
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