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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL O. ROBERTS PALADINO
Appellant No. 1468 WDA 2015
Appeal from the Judgment of Sentence July 29, 2015
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000437-2015
BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED JUNE 09, 2016
Michael O. Roberts Paladino appeals from the judgment of sentence
imposed on July 29, 2015, in the Court of Common Pleas of Beaver
County.1,2 On April 14, 2015, Roberts Paladino pleaded guilty to charges of
sexual abuse of children – distribution of child pornography (3 counts),
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*
Former Justice specially assigned to the Superior Court.
1
Roberts Paladino purports to appeal from the August 26, 2015, order
denying his post-sentence motion. We have corrected the caption to reflect
that Roberts Paladino’s appeal properly lies from the judgment of sentence
imposed on July 29, 2015. Commonwealth v. Dreves, 2003 PA Super 503,
839 A.2d 1122, 1125 n.1 (Pa. Super. 2003) (en banc).
2
On November 4, 2015, this Court issued a per curiam order, directing
compliance with Pa.R.A.P. 3517 (filing of docketing statement). Thereafter,
on November 25, 2015, this Court dismissed this appeal for failure to file a
docketing statement. Counsel then sought reinstatement of the appeal,
which this Court granted on December 14, 2015.
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sexual abuse of children – possession of child pornography (10 counts), and
criminal use of communication facility.3 On July 29, 2015, the trial court
held an assessment hearing, found Roberts Paladino to be a Sexually Violent
Predator (SVP), and sentenced Roberts Paladino to 30 to 84 months’
incarceration, and seven years’ probation. On August 13, 2015, Roberts
Paladino filed a post-sentence motion challenging his sentence that fell
beyond the aggravated range of the sentencing guidelines.4 The trial court
denied the motion on August 26, 2015, and Roberts Paladino filed a notice of
appeal on September 18, 2015. Thereafter, counsel filed Roberts Paladino’s
brief on appeal as an Anders5 brief. As will be discussed below, we remand
for counsel to file, within 30 days of the date the record is transmitted to the
trial court, either (1) a Pa.R.A.P. 1925(b) statement of matters complained
of on appeal, in which case the trial court is directed to file a Rule 1925(a)
opinion within 30 days thereafter, and counsel must file an advocate’s brief
with this Court within 30 days of the filing of the trial court’s opinion, or (2)
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3
18 Pa.C.S. §§ 6312(c), 6312(d), and 7512(a), respectively.
4
In part, Roberts Paladino’s post-sentence motion states: “It is the position
of [Roberts Paladino] that the Court’s sentence of 30 months to 84 months
on Counts 1, 2, and 3 unlawfully extend the minimum sentence beyond the
standard and aggregate range.” Roberts Paladino’s Post-Sentence Motion,
8/13/2015, at ¶4.
5
Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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a statement of intent to file an Anders brief, pursuant to Rule 1925(c)(4), in
which case the trial court may decide whether an opinion is necessary or
immediately transmit the record back to this Court; counsel must also file
with this Court within 30 days thereafter a petition for leave to withdraw
from representation evidencing compliance with notice requirements for
withdrawal; and counsel must amend the Anders brief to include a Rule
2119(f) statement.
Before we address counsel’s Anders brief, we must consider whether
this appeal is timely. We lack jurisdiction to consider untimely appeals, and
we may raise such jurisdictional issues sua sponte. See Commonwealth v.
Burks, 102 A.3d 497, 500 (Pa. Super. 2014).
As already noted, sentencing occurred on July 29, 2015. Roberts
Paladino filed his post-sentence motion on August 13, 2015, after the 10-
day period provided for filing a post-sentence motion. See Pa.R.Crim.P.
720(A)(1).6 As such, the post-sentence motion was untimely.
With regard to the effect of a post-sentence motion on the timeliness
of an appeal, this Court has explained:
In cases where no post-sentence motions (or Commonwealth’s
motions to modify sentence) are filed, a defendant must file an
appeal within 30 days of imposition of sentence in open court.
Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(c)(3). If a defendant files
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6
Rule 720(A)(1) provides: “Except as provided in paragraphs (C) and (D), a
written post-sentence motion shall be filed no later than 10 days after
imposition of sentence.”
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a timely post-sentence motion, the appeal period does not
begin to run until the motion is decided. Pa.R.Crim.P. 720(A)(2);
Pa.R.A.P. 903(a). Except in circumstances not applicable here, a
defendant must file a post-sentence motion within ten days of
imposition of sentence. Pa.R.Crim.P. 720(A)(1).
An untimely post-sentence motion does not toll the appeal
period. Commonwealth v. Green, 2004 PA Super 433, 862
A.2d 613, 618 (Pa. Super. 2004) (en banc) (“[T]he time for filing
an appeal can be extended beyond 30 days after the imposition
of sentence only if the defendant files a timely post-sentence
motion.”).
****
Under Commonwealth v. Dreves, 2003 PA Super 503, 839
A.2d 1122, 1128 (Pa. Super. 2003) (en banc), a post-sentence
motion nunc pro tunc may toll the appeal period, but only if two
conditions are met. First, within 30 days of imposition of
sentence, a defendant must request the trial court to consider a
post-sentence motion nunc pro tunc. “The request for nunc pro
tunc relief is separate and distinct from the merits of the
underlying post-sentence motion.” Id. at 1128-29. Second, the
trial court must expressly permit the filing of a post-sentence
motion nunc pro tunc, also within 30 days of imposition of
sentence. Id. at 1128 & n.6. “If the trial court does not
expressly grant nunc pro tunc relief, the time for filing an appeal
is neither tolled nor extended.” Id. at 1128. Moreover, “[t]he
trial court’s resolution of the merits of the late post-sentence
motion is no substitute for an order expressly granting nunc pro
tunc relief.” Id. at 1129.
Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015)
(emphasis in original).
Here, because Roberts Paladino’s post-sentence motion was untimely,
it did not extend the 30-day appeal period from the July 29, 2015 judgment
of sentence. See Calaldi, supra, citing Green. Moreover, Roberts
Paladino’s motion cannot be regarded as a post-sentence motion nunc pro
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tunc since the motion provided no explanation for the late filing and did not
request the trial court to consider the motion nunc pro tunc. In addition, the
trial court did not expressly grant nunc pro tunc relief and, therefore, its
decision on the merits does not qualify as an order expressly granting the
right to file a post-sentence motion nunc pro tunc.
The record, however, reveals extraordinary circumstances exist here
that excuse Roberts Paladino’s late filing of the appeal. In Commonwealth
v. Patterson, 940 A.2d 493, 499–500 (Pa. Super. 2007), this Court held
that a breakdown in the court’s operation occurred where the trial court
denied the defendant’s untimely post-sentence motion within the appeal
period, but failed to apprise him he still had 15 days to file an appeal. Here,
as in Patterson, the trial court’s August 26, 2015, order denying Roberts
Paladino’s untimely post-sentence motion was filed before the expiration of
the 30-day appeal period, and “did not notify [a]ppellant that, due to the
late filing of his post-sentence motion, he had to file an appeal within thirty
days of the imposition of sentence.” Patterson, supra at 499. See Order,
8/26/2015.7 Therefore, we are constrained to find that “a court breakdown
occurred,” id., and will not quash this appeal.
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7
The trial court’s order denying Roberts Paladino’s post-sentence motion
states:
AND NOW, this is hereby Ordered and Directed that the Motion is
denied. [Roberts Paladino] understood when he entered his
guilty pleas that he was exposed to 98 years[’] incarceration on
(Footnote Continued Next Page)
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At the outset of our review, however, we detect numerous areas of
concern that are cause for remand prior to further review, namely, counsel’s
failure to preserve issues for appeal, counsel’s failure to satisfy the
requirements of Anders, and counsel’s failure to include a Pa.R.A.P. 2119(f)
statement in the Anders brief. We address these deficiencies sequentially.
First, counsel for Roberts Paladino failed to comply with the trial
court’s September 21, 2015, order to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The trial court has opined that due to this omission “all
issues are deemed waived.” Trial Court Order, 11/04/2015.
It is well settled that a defendant’s failure to comply with the court’s
order to file a concise statement in compliance with Rule 1925 generally
results in waiver of all issues on appeal. See Commonwealth v. Lord, 719
A.2d 306 (Pa. 1998); Commonwealth v. Castillo, 888 A.2d 775 (Pa.
2005). However, where a criminal defendant’s issues are waived on direct
appeal under Lord due to his attorney’s failure to file a Rule 1925(b)
statement, it is presumed that the defendant suffered per se ineffectiveness.
Castillo, supra at 780. In this regard, Rule 1925 provides:
_______________________
(Footnote Continued)
these 14 separate counts. The sentence imposed was not
“unlawful” as the motion suggests.
Order, 8/26/2015.
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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).
Pursuant to the recent amendments to Rule 1925, if counsel intends to
submit an Anders brief, the proper procedure is provided in Pa.R.A.P.
1925(c)(4). Therefore, at the time the trial court issued its order to file a
concise statement, counsel could have either (1) complied with the court’s
order and filed a Rule 1925(b) statement, or (2) filed a statement of intent
to file an Anders brief. Here, counsel’s failure to file a Rule 1925 statement
constitutes per se ineffectiveness and deprives Roberts Paladino of
meaningful review of his appeal.
Under these circumstances, the most effective means to restore a
defendant’s rights on appeal is to remand for counsel to comply with the
court’s Rule 1925(b) order. See Commonwealth v. McBride, 957 A.2d
752 (Pa. Super. 2008) (where counsel failed to file court-ordered Pa.R.A.P.
1925(b) statement and filed a brief pursuant to Anders, remand required
for filing of concise statement followed by preparation of trial court opinion
or a statement of intent to file an Anders brief in lieu of filing a concise
statement). Therefore, we must remand for either:
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(1) Counsel’s filing of a concise statement nunc pro tunc and
the preparation of an opinion by the trial court,8 to be
followed by counsel’s filing of an advocate’s brief in this
Court, or
(2) Counsel’s filing of a statement of intent to file an Anders
brief pursuant to Pa.R.A.P. 1925(c)(4).
Secondly, we note that Roberts Paladino’s counsel has not complied
with the requirements of Anders. “When faced with a purported Anders
brief, this Court may not review the merits of any possible underlying issues
without first examining counsel’s request to withdraw.” Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).
Pursuant to Anders and Commonwealth v. Santiago, 978 A.2d 349
(Pa. 2009), the procedural requirements counsel must satisfy in requesting
to withdraw from representation are, as follows:
Counsel must: 1) petition the court for leave to withdraw stating
that, after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; 2)
furnish a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel or
raise additional arguments that the defendant deems worthy of the
court's attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super.
2007).
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8
See Pa.R.A.P. 1925(b), (c)(3).
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Santiago further requires that counsel’s Anders brief must:
(1) provide a summary of the facts and procedural history, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding the appeal is frivolous. Counsel
should articulate the relevant facts of record, controlling case
law, and/or statutes on point that have led to the conclusion that
the appeal is frivolous.
Cartrette, supra at 1032 (citation omitted).
Further, counsel must provide a copy of the Anders brief and petition
to withdraw to his client, together with a letter that advises his client of the
right to:
(1) retain new counsel to pursue the appeal; (2) proceed pro se
on appeal; or (3) raise any points that the appellant deems
worthy of the court[’]s attention in addition to the points raised
by counsel in the Anders brief.
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal
quotations and citation omitted). See also Commonwealth v. Millisock,
873 A.2d 748, 751–752 (Pa. Super. 2005) (“[T]he prudent course is to
require counsel henceforth to attach to their petition to withdraw a copy of
the letter sent to their client advising him or her of their rights. Such a
requirement ensures proper notification to the client and relieves this Court
of having to make any assumptions..., a burden inappropriate for a
reviewing court.”).
Instantly, although counsel has filed an Anders brief, there is no
separate petition to withdraw. We recognize we may treat counsel’s request
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in the Anders brief itself as such a request. See Commonwealth v.
Fischetti, 669 A.2d 399 (Pa. Super. 1995). (explaining “the more desirable
practice would be to submit a separate withdrawal request to the court”).
We also note the Anders brief certificate of service indicates that the
Anders brief was mailed to Roberts Paladino by U.S. first class mail.
However, there is no indication in the record or filings in this Court that
counsel advised Roberts Paladino by letter that he had the right to proceed
with newly retained counsel or pro se, or raise any points in addition to the
points raised by counsel in the Anders brief. Therefore, counsel has not
properly complied with the technical requirements of Anders and its
progeny.
Accordingly, if on remand counsel files a statement of intent to file an
Anders brief in lieu of a concise statement, we direct counsel to file with this
Court, within 30 days thereafter, a petition to withdraw from representation,
including the appropriate documentation evidencing counsel’s compliance
with the notice requirements discussed above. See Orellana, supra;
Millisock, supra.
Next, we address the procedural aspects of counsel’s Anders brief.
Here, the Anders brief states that “[a]n appeal of the discretionary aspects
of a sentence which was the result of a negotiated plea agreement is
patently frivolous.” Anders Brief at 10, citing Commonwealth v. Reichle,
589 A.2d 1140. This statement, however, has no application in this case,
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given that Roberts Paladino entered an open guilty plea. See
Commonwealth v. Tirado, 870 A.2d 362, 368 n.5 (noting that “while a
guilty plea which includes sentence negotiation ordinarily precludes a
defendant from contesting the validity of his or her sentence other than to
argue that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant
will not be precluded from appealing the discretionary aspects of the
sentence”) (emphasis in original).
Furthermore, although the Anders brief addresses “the legality of the
sentence” imposed on Roberts Paladino, the discussion is framed in terms of
the trial court’s deviation from the sentencing guidelines. Anders Brief at
11. As such, this issue implicates the discretionary aspects of the sentence.
See Tirado, supra (challenge to sentence outside the guidelines implicates
discretionary aspects of sentence). However, the Anders brief does not
contain a separate statement of reasons relied upon for allowance of appeal,
as required by Pa.R.A.P. 2119(f). We may review this issue notwithstanding
the absence of a Rule 2119(f) statement. See Commonwealth v. Lilley,
978 A.2d 995, 998 (Pa. Super. 2009) (examining the merits of a challenge to
discretionary aspects of a sentence where counsel failed to include Pa.R.A.P.
2119(f) statement within an Anders brief). Nevertheless, since we are
remanding this case, we instruct counsel, if he continues to proceed
pursuant to Anders, to amend the Anders brief pursuant to Rule 2119(f).
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To summarize, we remand this case to the trial court with the
following instructions:
I. Within 30 days of the date the record is transmitted to the trial
court, counsel for Roberts Paladino must file in the trial court
either (1) a Rule 1925(b) statement nunc pro tunc, or (2) a
statement of intent to file an Anders brief, in accordance with
Rule 1925(c)(4).
II. If counsel files a Rule 1925(b) statement, we direct the trial
court to file a Rule 1925(a) opinion within 30 days thereafter,
and then promptly certify and retransmit the trial court record to
this Court. Additionally, counsel must file an advocate’s brief
with this Court within 30 days of the filing of the trial court’s
opinion.
III. If counsel files a Rule 1925(c)(4) statement of intent to file an
Anders brief, the trial court may determine whether an opinion
is necessary, and if not, promptly certify and transmit the trial
court record back to this Court. Additionally, if counsel files a
Rule 1925(c)(4) statement, counsel must file in this Court within
30 days thereafter, a petition to withdraw from representation
and appropriate documentation evidencing compliance with the
notice requirements for withdrawal, and an amended Anders
brief that includes a Rule 2119(f) statement.
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Case remanded with instructions. Panel jurisdiction retained.
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