Com. v. Ali, A.

• Court: Superior Court of Pennsylvania
• Decided: March 11, 2019
• Docket: 1073 WDA 2018
• Status: Unpublished

Opinion

J-S05026-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ADAM ABDUL ALI : : Appellant : No. 1073 WDA 2018

Appeal from the Judgment of Sentence Entered June 26, 2018 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000035-2018

BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.: FILED MARCH 11, 2019

Appellant Adam Abdul Ali appeals from the judgment of sentence

following his guilty plea to simple assault and disorderly conduct.1 For the

reasons that follow, we remand for further proceedings consistent with this

memorandum.

The facts underlying this case arise from Appellant’s guilty plea to simple

assault and disorderly conduct on May 1, 2018. The trial court sentenced

Appellant to five to twenty-three months’ incarceration on June 26, 2018.

Appellant filed a motion for reconsideration of sentence, seeking a reduced

sentence. The trial court denied the motion for reconsideration on June 28,

2018. Khadija W. Horton, Esq. (Attorney Horton) represented Appellant ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2701(a)(1) and 5503(a)(4), respectively. J-S05026-19

during his guilty plea and at sentencing. Attorney Horton filed a timely notice

of appeal on behalf of Appellant on July 26, 2018.

The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement

by August 17, 2018. In lieu of filing a Rule 1925(b) statement, Attorney

Horton filed a statement of intent to file an Anders2 brief. The trial court

declined to file a responsive opinion, citing Attorney Horton’s notice of intent

to file an Anders brief. See Order, 9/14/18 (citing Commonwealth v.

McBride, 957 A.2d 752 (Pa. Super. 2008)).

Attorney Horton did not file an Anders brief or a petition to withdraw

under Anders. Instead, a public defender, Emily Merski, Esq. (Attorney

Merski), entered her appearance on behalf of Appellant in this Court on

October 4, 2018. Thereafter, on October 15, 2018, Attorney Horton filed a

petition to withdraw as counsel, which this Court granted on October 17, 2018.

After Attorney Merski entered her appearance and Attorney Horton withdrew,

Attorney Merski filed an advocate’s brief challenging the discretionary aspects

of the sentence.

An attorney may file a notice of intent to file an Anders brief in lieu of

filing a Rule 1925(b) statement. See Pa.R.A.P. 1925(c)(4); McBride, 957

A.2d at 758. In this case, Attorney Horton filed a notice of intent to file an

Anders brief, but did not actually file an Anders brief. Instead, she withdrew

after Attorney Merski entered her appearance. Attorney Merski subsequently ____________________________________________

2 Anders v. California, 386 U.S. 738 (1967).

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filed an advocate’s brief challenging the discretionary aspects of the sentence,

but did not file a Rule 1925(b) statement or petition this Court for a remand

to file a Rule 1925(b) statement nunc pro tunc. Moreover, given this

procedural history, this Court does not have the benefit of the trial court’s

opinion addressing Appellant’s sentencing claim.

Therefore, we remand for Appellant to file a Rule 1925(b) statement and

the trial court to file a responsive Rule 1925(a) opinion. See Pa.R.A.P.

1925(c)(3) (providing that where a Rule 1925(b) statement has been ordered

in a criminal case and has not been filed, “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”). Attonrey Merski shall have twenty-one days from

the date of this memorandum to file a Rule 1925(b) statement, and the trial

court shall have an additional thirty days to file a Rule 1925(a) opinion. The

trial court shall remit the record to this Court upon completion of its Rule

1925(a) opinion.

Case and record remanded with instructions. Panel jurisdiction retained.

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