J-S80034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
XAVIER JASON PAGAN
Appellant No. 505 MDA 2016
Appeal from the PCRA Order March 17, 2016
in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-0004619-2012
BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED DECEMBER 19, 2016
Appellant, Xavier Jason Pagan, appeals from the March 17, 2016
order, denying his petition filed under the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. We affirm.
On January 28, 2013, Appellant pleaded guilty to two counts each of
aggravated assault and criminal conspiracy to commit aggravated assault,
and one count each of simple assault, criminal conspiracy to commit criminal
homicide, criminal conspiracy to commit simple assault, and intimidation of a
witness.1 Appellant was sentenced to an aggregate term of thirteen to forty
years of incarceration. He did not pursue a direct appeal.
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1
18 Pa.C.S. § 2702, 903, 2701 and 4952, respectively.
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On March 9, 2015, following timely PCRA proceedings and appeal
therefrom, this Court vacated the PCRA court’s order and remanded for a
Grazier2 hearing and any necessary subsequent PCRA proceedings. See
Commonwealth v. Pagan, 120 A.3d 1050 (Pa. Super. 2015) (unpublished
memorandum).
On July 21, 2015, following a Grazier hearing, Appellant was
permitted to proceed pro se. On December 18, 2015, he filed a motion to
correct illegal sentence, which the PCRA court treated as an amendment of
Appellant’s August 29, 2013 motion seeking post conviction relief. On March
17, 2016, the court formally dismissed Appellant’s petition. Appellant timely
appealed.
In its memorandum opinion filed pursuant to Pa.R.A.P. 1925(b), the
court stated:
On March 17, 2016, we dismissed Appellant’s PCRA motion. On
March 23, [2016], Appellant filed an appeal to the Superior
Court. On April 11, 2016, we ordered Appellant to file a concise
statement of the errors complained of on appeal. As of this
date, Appellant has failed to comply with this order . . . No
request for an extension has been made within the twenty one
day deadline in our April 1, 2016 order.
Trial Court Opinion, 5/17/16, at 1-2. Thus, based upon Appellant’s failure to
file a Rule 1925(b) statement, the trial court concluded that Appellant had
waived all issues, citing Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in
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2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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the Statement and/or not raised in accordance with the provision of this
paragraph (b)(4) are waived.”). As a result, the trial court suggests that we
dismiss Appellant’s appeal. The record reflects that the trial court issued an
order requiring Appellant to submit a Rule 1925(b) statement and that
Appellant failed to respond.
Where a trial court orders an Appellant to file a Pa.R.A.P. 1925(b)
statement, the Appellant must comply in a timely manner. Commonwealth
v. Castillo, 888 A.2d 775, 780 (Pa. 2005). Failure to comply with a Rule
1925(b) order will result in waiver of all issues raised on appeal. Id.; see
also Greater Erie Indus. Development Corp. v. Presque Isle Downs,
Inc., 88 A.3d 222, 225 (Pa. Super. 2014). Due to Appellant’s failure to
submit a Rule 1925(b) statement, we conclude that any issues he wished to
raise have been waived.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2016
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