Com. v. Bailey, J.

• Court: Superior Court of Pennsylvania
• Decided: February 18, 2025
• Docket: 829 EDA 2024
• Status: Unpublished

Opinion

J-S05039-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMAL AMID BAILEY : : Appellant : No. 829 EDA 2024

Appeal from the Judgment of Sentence Entered September 21, 2022 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0004351-2017

BEFORE: BOWES, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 18, 2025

Appellant, Jamal Amid Bailey, appeals from the judgment of sentence

entered in the Court of Common Pleas of Chester County on September 21,

2022. We deny counsel’s application to withdraw and remand.

The relevant facts and procedural history are as follows: Between

February 6, 2017, and April 26, 2017, Appellant administered doses of

Quetiapine, an adult psychoactive medication, to his ten-month old daughter.

He placed the drug in her milk bottles each evening, resulting in her death.

N.T., 8/30/21, at 2. On August 30, 2021, Appellant pled guilty to: Murder of

the Third Degree;1 Aggravated Assault—Victim Less Than 6 and Defendant 18

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* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. § 2502(c). J-S05039-25

or Older;2 and Endangering the Welfare of Children. 3 On September 21, 2022,

Appellant was sentenced to incarceration of seventeen to forty years, followed

by ten years of probation to run consecutively.

On September 30, 2022, Appellant filed a timely post-sentence motion

to “Withdraw Guilty Plea and for Appointment of Conflict Counsel.” On

November 16, 2022, counsel for Appellant was granted leave to withdraw and

the court administrator was directed to appoint substitute conflict counsel. It

was not until July 20, 2023, that the Court Administrator appointed new

counsel. However, Pennsylvania Rule of Criminal Procedure 720(B)(3)(a)

states that the trial court “shall decide [a] post-sentence motion, including

any supplemental [post-sentence] motion, within 120 days of the filing of the

motion.” Pa.R.Crim.P. 720(B)(3)(a).

If the trial court “fails to decide the motion within 120 days, or to grant

an extension as provided in [Rule 720](B)(3)(b), the motion shall be deemed

denied by operation of law.” Id. Here, although the trial court entered an order

appointing conflict counsel within 120 days of Appellant’s post-sentence

motion, the trial court did not dispose of Appellant’s motion to withdraw his

guilty plea.

When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the [trial] court, and, as provided in [Pennsylvania Rule of Criminal Procedure] 114, forthwith shall serve a copy of the order on the ____________________________________________

2 18 Pa.C.S.A. § 2702(a)(8). 3 18 Pa.C.S.A. § 4304(a)(1).

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attorney for the Commonwealth, the defendant’s attorney, or the defendant if unrepresented, that the post-sentence motion is deemed denied.

Pa.R.Crim.P. 720(B)(3)(c). Once a post-sentence motion is denied by the trial

court, or deemed denied by operation of law, a defendant has thirty days in

which to file a timely notice of appeal. Pa.R.Crim.P. 720(A)(2)(a) and (b).

Here, Appellant filed his post-sentence motion on September 30, 2022.

As such, the trial court had until January 28, 2023, to dispose of the post-

sentence motion or the post-sentence motion would be deemed denied by

operation of law. See Pa.R.Crim.P. 720(B)(3)(c). Because the trial court did

not dispose of Appellant’s September 30, 2023 post-sentence motion by

January 28, 2023, Appellant’s post-sentence motion was deemed denied by

operation of law on January 28, 2023, the same day. Ordinarily, Appellant’s

time for filing an appeal would expire on Monday, February 27, 2023, thirty

days after the date his post-sentence motion was denied by operation of law.

Pa.R.Crim.P. 720(A)(2)(b). A review of the record, however, reveals that the

clerk of courts did not enter an order on behalf of the trial court that indicated

Appellant’s post-sentence motion was denied by operation of law. Additionally,

the trial court proceeded to schedule a hearing on Appellant’s post-sentence

motion and grant nearly a dozen continuances between April 2023 and

January 2024 for the hearing. It is well-established “that, where 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

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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), citing Commonwealth v. Braykovich, 664 A.2d 133 (Pa.

Super. 1995), appeal denied, 675 A.2d 1242 (Pa. 1996).

The hearing on Appellant’s post-sentence motion to withdraw his guilty

plea finally occurred on February 2, 2024. On February 12, 2024, the trial

court entered the order which noted that Appellant’s motion had already been

deemed denied by operation of law pursuant to Pa.R.Crim.P. 720(B)(3). Tr.

Ct. Order, 2/12/24, at 1. In the alternative, the trial court noted that

“Defendant did not persuade this court that his guilty plea [on] August 30,

2021 was not knowing, intelligent, and voluntary.” Tr. Ct. Order, 2/12/24, at

1 n. 2.

Due to the breakdown in the court system that prevented Appellant from

receiving notice that his motion was denied by operation of law, the trial

court’s February 12, 2024, order also reinstated Appellant’s right to direct

appeal, nunc pro tunc, upon the Commonwealth’s consent. On February 14,

2024, the Court Administrator appointed appellate counsel, Scott J. Werner,

Esquire, who filed a timely Notice of Appeal on March 12, 2024. On March 13,

2024, the trial court entered an order directing Appellant to file and serve a

Rule 1925(b) statement within twenty-one days. That order recited that “any

issue not properly included in the Statement timely filed and served pursuant

to Pa.R.A.P. 1925(b) shall be deemed waived.” Tr. Ct. Order, 3/13/24, at 1.

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On April 10, 2024, this Court entered an order stating that all appellate

briefs be filed in this matter before May 20, 2024. Super. Ct. Order, 4/10/24,

at 1. On April 3, 2024, this Court filed an order stating that Appellant had

failed to timely file the docketing statement required by Pa.R.A.P. 3517, and

that it must be filed by May 3, 2024. Counsel for Appellant complied with the

latter order and filed the docketing statement on April 29, 2024. However,

when no 1925(b) statement or appellate brief was filed as of July 15, 2024,

this Court remanded the appeal to the trial court for thirty days directing the

trial court to determine the status of Appellant’s appellate counsel. Super. Ct.

Order, 7/15/24. The trial court held a conference on July 24, 2024, and

notified this Court that the appointed appellate counsel had not abandoned

Appellant, counsel would continue to represent Appellant, and that the

Appellant was satisfied with counsel’s representation. Tr. Ct. Notification,

8/22/24.

In light of the trial court’s determination, on October 1, 2024, this Court

issued a briefing schedule, ordering Appellant to file his brief on or before

November 12, 2024. Super. Ct. Order, 10/1/24, at 1. Appellant’s counsel

complied and filed an Anders brief on November 12, 2024 pursuant to

Anders v. California, 386 U.S. 738 (1967). This appeal followed.

We observe that to date, counsel never filed a 1925(b) statement as

ordered by the trial court on March 13, 2025, nor did counsel file a 1925(c)(4)

statement of intent to withdraw in lieu of a concise statement. The trial court

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filed an opinion, but it discussed no issues of merit that Appellant would have

wanted to raise because there was no statement of errors complained of on

appeal. The trial court’s opinion simply requests that this Court affirm its order

because of Appellant’s failure to file a statement. Tr. Ct. Op. at 2. Appellant’s

counsel notes in his Anders brief that he did not file a 1925(c)(4) statement

“as a result” of this Court’s October 1, 2024, briefing schedule which directed

counsel to file a brief. Appellant’s Br. at 9. We note that while our October 1,

2024, scheduling order directing counsel to file a brief did not direct counsel

to file a statement pursuant to 1925(b), it required that all documents

necessary to the issues raised on appeal be included or else they may be

waived. Super. Ct. Order, 10/1/24, at 1. Additionally, statements pursuant to

1925(b) must be filed in the trial court, not with this Court.

Prior to addressing this appeal, we must first resolve counsel’s petition

to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc). There are procedural and briefing requirements imposed

upon an attorney who seeks to withdraw on appeal pursuant to which 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 [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court’s attention.

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Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court in Santiago stated

that an Anders brief must:

(1) provide a summary of the procedural history and facts, 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 that 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.

Commonwealth v. Santiago, 978 A.2d at 349, 361 (Pa. 2009). Counsel

also must provide the appellant with a copy of the Anders brief, together with

a letter that advises the appellant of his or her 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. Nischan,

928 A.2d 349, 353 (Pa. Super. 2007) (citation omitted).

Herein, counsel filed a petition to withdraw as counsel and an Anders

brief. After review of the Anders brief, we find that counsel sufficiently

complied with the procedural requirements of Anders as articulated by

Santiago.4 However, counsel’s failure to file a statement pursuant to 1925(b)

or (c) prevents us from granting his motion to withdraw.

4 The brief contains a factual and procedural summary, a conclusion that the

appeal is frivolous, and counsel’s reasoning for it. Appellant’s Br. at 12. (Footnote Continued Next Page)

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“If counsel intends to seek to withdraw in a criminal case pursuant to

Anders/Santiago . . . counsel shall file of record and serve on the judge a

statement of intent to withdraw in lieu of filing a [1925(b)] Statement.” Pa.

R.A.P. 1925(c)(4) (emphasis added). We stated in Commonwealth v.

Myers, 897 A.2d 493 (Pa. Super. 2006), that we “forbid the use of Anders

as a vehicle to circumvent the Rules of Appellate Procedure.” Id. at 496.

At the time the trial court directed counsel to file a concise statement

he could have either (1) complied with the order and filed a Rule 1925(b)

statement or (2) filed a statement of intent to file an Anders brief. See

Commonwealth v. McBride, 957 A.2d 752, 757 (Pa. Super. 2008);

Pa.R.A.P. 1925(c)(4). Appellant’s counsel did neither. “[A]bsent the proper

filing of any statement of record by counsel, this Court cannot properly

consider counsel’s request to withdraw.” McBride, 957 A.2d at 758. See also

Pa.R.A.P. 1925(c)(4) Note (“[Anders/Santiago] procedures do not relieve

counsel of the obligation to comply with all other rules.”).

In Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007)

(en banc), counsel for the appellant filed a 1925(b) statement which said

“[t]here are no non-frivolous matters that can be raised on appeal.” Although

Attached to the application to withdraw was a copy of a letter advising Appellant of his rights pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005). See Application to Withdraw, Exhibit B. The Millisock letter and certificates of service attached to the application to withdraw indicate Appellant was served a copy of the documents. See Letter, 11/11/24.

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the statement was not fashioned as a proper notice of intent to withdraw

pursuant to Pa.R.A.P. 1925(c)(4), we accepted that statement as “a

representation that no errors have been raised because the lawyer is seeking

to withdraw under Anders/McClendon.” Id. at 293.

In Commonwealth v. Carter, 292 A.3d 1099, (Pa. Super. 2023),5 the

trial court ordered the appellant to file a Rule 1925(b) statement. In response,

counsel for the appellant filed an Anders brief with the trial court. Id. at *7.

We noted that counsel should have filed a statement of intent to file an

Anders brief rather than filing an Anders brief with the trial court, which is

not required on appeal. Id. at *7 n.14. However, we accepted that filing as a

proper statement because the attorney’s filing of an Anders brief with the

trial court conveyed the same intent. Id.

Here, the trial court entered an order on March 13, 2024 directing

Appellant to file and serve a Rule 1925(b) statement within twenty-one days.

Counsel took no action until April 29, 2024, after this Court notified counsel

that he had failed to timely file a docketing statement. Thereafter, counsel

missed the Superior Court’s May 3, 2024, deadline to file a brief. Counsel

again took no action until July 24, 2024, when the trial court held an

abandonment conference which was ordered by the Superior Court on

5 We note that, pursuant to Pa.R.A.P. 126(b), unpublished non-precedential

decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value. We find guidance in the unpublished memorandum cited supra and find it to be persuasive in this matter.

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remand. Counsel then filed his Anders brief with this Court on November 12,

2024. No statement of intent to withdraw—or anything that can be construed

as such—was filed in the trial court.6

For the foregoing reasons, we remand for the filing of either a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

or a statement of intent to file an Anders/McClendon brief pursuant to Rule

1925(c)(4). Regardless of which course of action counsel chooses, an election

must be made and a either a concise statement must be filed with the trial

court within fifteen (15) days of the date of this memorandum, or a statement

of intent to file an Anders/McClendon brief in lieu of filing a concise

statement, must be filed with the trial court within fifteen (15) days of the

date of this memorandum. If counsel files a concise statement of errors

6 Further, the trial court was unable to address the issue Appellant sought to

raise, namely, that his plea was not intelligent, knowing, and voluntary.

The absence of a trial court opinion poses a substantial impediment to meaningful and effective appellate review. Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues that the parties plan to raise on appeal. Rule 1925 is thus a crucial component of appellate process.

Commonwealth v. Butler, 812 A.2d 631, 636 (Pa. 2002). The trial court’s opinion quotes a footnote from its order following the hearing on Appellant’s post-sentence motion which merely stated that Appellant failed to establish that his plea was not intelligent, knowing, and voluntary. See Tr. Ct. Op., 4/9/24, at 2 (citing Tr. Ct. Order, 2/12/24, at 1 n.2). However, the certified record does not include the transcript to that hearing which occurred on February 2, 2024.

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complained of on appeal, the trial court shall, within thirty (30) days of receipt,

file a Rule 1925(a) opinion. If counsel files a statement of intent to file an

Anders/McClendon brief pursuant to Rule 1925(c)(4), a trial court opinion

is not necessary, and the complete trial court record shall be certified and

transmitted back to this Court.

Remanded for further proceedings consistent with this memorandum.

Panel jurisdiction retained.

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