J-S34039-21
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD CARL GORDON, III :
:
Appellant : No. 543 MDA 2021
Appeal from the Judgment of Sentence Entered November 17, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006017-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 18, 2022
Richard Carl Gordon, III (Appellant) appeals from the judgment of
sentence1 entered in the Lancaster County Court of Common Pleas following
his non-jury convictions of driving under the influence (DUI) of controlled
substances (marijuana) and failing to stop at a red signal.2 On appeal,
Appellant contends the trial court erred in denying his motion to suppress
evidence obtained following his warrantless arrest and involuntary consent to
a blood draw. Additionally he challenges the constitutionality and application
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1The notice of appeal filed by counsel states the appeal is “from the denial of
[Appellant’s] Omnibus Pre-Trial Motion . . . on August 14, 2020, and the
verdict of the Non-Jury Trial entered in this matter on November 17, 2020[.]”
Appellant’s Notice of Appeal, 4/30/20. We remind counsel that “[i]n a criminal
action, appeal properly lies from the judgment of sentence made final by the
denial of post-sentence motions.” Commonwealth v. Shamberger, 788
A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (citation omitted).
2 75 Pa.C.S. §§ 3802(d)(1)(i), (iii), 3112(a)(3)(i).
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of the DUI statute in light of the Medical Marijuana Act (MMA).3 Pursuant to
Pa.R.A.P. 1925(c)(3), we are compelled to remand this case to the trial court
to file a responsive Rule 1925(a) opinion within 60 days of this decision.
Given our disposition, a detailed recitation of facts is not necessary.
Briefly, on August 18, 2019, Appellant caused a vehicle accident when he
drove through a red-light signal and struck another vehicle “just before 6:00
p.m.” while he was on his way home from work. N.T., Motion to Suppress
H’rg, 8/14/20, at 5-6, 11, 14. Manheim Township Police Officer Christian
Garcia responded to the scene. Id. at 3, 5. Appellant was injured in the
accident, and directed Officer Garcia to look in his wallet for his registration
and insurance paperwork. Id. at 7. When doing so, the officer found a
medical marijuana card. Id. Appellant was transported to the hospital. Id.
At the hospital, Appellant admitted to Officer Garcia that he had smoked
marijuana “roughly around [10] or 10:30” that morning. Id. at 8. Officer
Garcia later spoke with Appellant’s fiancé who “admitted [Appellant] smoked
before leaving [ ] work[,]” which was just prior to the accident. Id. at 11.
The officer obtained Appellant’s consent for a blood draw, which subsequently
returned positive for marijuana. Id. at 9-10, 33.
Appellant was charged with DUI (drugs) under subsections
3802(d)(1)(i)(1) (any amount of Schedule 1 controlled substance), (d)(1)(iii)
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3 See 35 P.S. §§ 10231.101 to 10231.210.
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(metabolite of controlled substance), and (d)(2) (impaired ability),4 and failure
to stop at red signal. He filed a pretrial motion to suppress, challenging his
warrantless arrest and consent to the blood draw, as well as a motion to
dismiss based on a violation of the MMA. Following a hearing, the trial court
denied the motion on August 14, 2020. Appellant proceeded to a non-jury
trial, and was convicted of DUI under subsections 3802(d)(1)(i) and (d)(1)(iii),
and the summary traffic offense. The remaining charge of DUI-impaired
ability was nolle prossed. The trial court sentenced Appellant to an aggregate
term of 5 years’ probation, 90 days’ house arrest, and other DUI-related
restrictions.
Appellant filed a timely post-sentence motion, which was denied by
operation of law on March 31, 2021.5 This timely appeal followed. On May 3,
2021, the trial court ordered Appellant to file a concise statement of errors
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4 75 Pa.C.S. § 3802(d)(2).
5 Pursuant to Pennsylvania Rule of Criminal Procedure 720, a trial court has
120 days to rule upon a post-sentence motion, or motion is deemed denied
by operation of law. See Pa.R.Crim.P. 720(B)(3)(a). Here, the 120-day
period expired on March 17, 2021. However, Rule 702(B)(3)(c) requires the
clerk of courts, at the expiration of the 120-day period, to enter on the docket,
and serve on the parties, an order deeming the motion denied by operation of
law. See Pa.R.Crim.P. 720(B)(3)(c). In the present case, the clerk of courts
failed to enter an order denying Appellant’s post-sentence motion until March
31, 2021. Appellant filed a notice of appeal less than 30 days later. “[W]here
the clerk of courts does not enter an order indicating that the post-sentence
motion is denied by operation of law and notify the defendant of same, a
breakdown in the court system has occurred and we will not find an appeal
untimely under these circumstances.” Commonwealth v. Perry, 820 A.2d
734, 735 (Pa. Super. 2003).
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complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days, or by
May 24, 2021.6 Appellant filed an untimely Rule 1925(b) statement on June
7, 2021. The trial court subsequently issued an opinion on June 4, 2021,
stating, that due to Appellant’s “failure to file a timely concise statement, [it]
will be requesting that the appeal be dismissed[.]” Trial Ct. Op., 6/4/21, at
1. The court also stated it would not be filing a responsive opinion. See id.
Appellant raises the following three issues on appeal:
1. Did the [t]rial [c]ourt err in convicting [Appellant] because §
3802(d)(1) punishes medical marijuana patients solely for
consuming medical marijuana, contrary to the provisions of the
Medical Marijuana Act?
2. Did the [t]rial [c]ourt err in denying [Appellant’s] Omnibus Pre-
Trial Motion because Officer Garcia did not have probable cause
to arrest [Appellant] pursuant to § 3802?
3. Did the [t]rial [c]ourt err in denying [Appellant’s] Omnibus Pre-
Trial Motion because [Appellant] did not voluntarily, knowingly,
nor intelligently consent to a chemical blood test?
Appellant’s Brief at 6.
Before reaching the merits, we note our review of Appellant’s
substantive claims is hampered by the lack of a responsive Rule 1925(a)
opinion. As noted supra, the trial court found all of Appellant’s issues were
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6 The trial court’s Rule 1925(b) order states: “Copies of [Appellant’s Rule
1925(b) statement] must be delivered to my Chambers by” May 24, 2021.
Order, 5/3/21. We note that in certain circumstances directing an appellant
to deliver copies of their statement generally to the court’s chambers would
be insufficient to comply with the requirements of the rule. See Pa.R.A.P.
1925(b)(3) (stating the order shall include an “address to which the appellant
can mail the [s]tatement[ or] provide other alternative means for the
appellant to serve the [s]tatement on the” court).
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waived based upon his failure to file a timely concise statement. However,
pursuant to Rule 1925(c)(3):
If an appellant represented by counsel in a criminal case was
ordered to file a Statement and failed to do so or filed an untimely
Statement, such that the appellate court is convinced that counsel
has been per se ineffective, and the trial court did not file an
opinion, the appellate court may remand for appointment of new
counsel, the filing of a [s]tatement nunc pro tunc, and the
preparation and filing of an opinion by the judge.
Pa.R.A.P. 1925(c)(3).
Here, counsel for Appellant filed a concise statement approximately two
weeks after the trial court’s deadline. Because counsel untimely filed the Rule
1925(b) statement, we conclude they provided per se ineffective assistance
pursuant to subsection (c)(3). See Pa.R.A.P. 1925(c)(3). Moreover, since
the trial court’s Rule 1925(a) opinion did not address Appellant’s substantive
claims, we remand for the trial court to file, within 60 days of the filing of this
Memorandum, a Rule 1925(a) opinion addressing the issues raised in
Appellant’s untimely statement. See Pa.R.A.P. 1925(c)(3); Commonwealth
v. Thompson, 39 A.3d 335, 340-41 (Pa. Super. 2012) (when counsel is per
se ineffective, this Court may remand to the trial court for an opinion
responsive to an untimely 1925(b) statement).
Case remanded for actions consistent with this Memorandum. Panel
jurisdiction retained.
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