Com. v. Drain, K.

• Court: Superior Court of Pennsylvania
• Decided: August 17, 2021
• Docket: 1747 WDA 2019
• Status: Unpublished

Opinion

J-S24020-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : KEITH LAMONT DRAIN : : Appellant : No. 1747 WDA 2019

Appeal from the PCRA Order Entered October 28, 2019 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015145-2009

BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY KING, J.: FILED: AUGUST 17, 2021

Appellant, Keith Lamont Drain, appeals pro se from the order entered in

the Allegheny County Court of Common Pleas, which denied his first petition

filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. On October 10, 2014, a jury convicted Appellant of third-degree murder

and firearms not to be carried without a license. The court sentenced

Appellant to an aggregate 23½ to 47 years’ imprisonment. On November 17,

2016, this Court affirmed the judgment of sentence, and our Supreme Court

denied allowance of appeal on April 25, 2017. See Commonwealth v. Drain,

159 A.3d 590 (Pa.Super. 2016) (unpublished memorandum), appeal denied,

641 Pa. 492, 168 A.3d 1273 (2017).

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* Former Justice specially assigned to the Superior Court. J-S24020-21

On December 18, 2018, Appellant filed his first PCRA petition pro se.

The court appointed counsel, who filed a motion to withdraw and

Turner/Finley “no-merit” letter,1 on June 21, 2019. On June 26, 2019, the

court issued notice of its intent to dismiss the petition per Pa.R.Crim.P. 907,

and let counsel withdraw. Following the grant of an extension of time to reply,

Appellant responded pro se on October 10, 2019. On October 30, 2019, the

court denied PCRA relief. Appellant timely filed a notice of appeal on

November 25, 2019. On December 18, 2019, the court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Although the court gave Appellant multiple extensions of

time, Appellant did not file a Rule 1925(b) statement.

Appellant raises ten issues on appeal. As a preliminary matter,

however, we must address Appellant’s failure to file a court-ordered Rule

1925(b) statement. Pennsylvania law makes clear:

[A]ny issue not raised in a Rule 1925(b) statement will be deemed waived for appellate review. See Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 (1998). Further, an appellant’s concise statement must identify the errors with sufficient specificity for the trial court to identify and address the issues the appellant wishes to raise on appeal. See Pa.R.A.P. 1925(b)(4)(ii) (requiring a Rule 1925(b) statement to “concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge”). This Court [has] explained … that Pa.R.A.P. 1925 is a crucial component of the appellate process because it allows the trial court to ____________________________________________

1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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identify and focus on those issues the parties plan to raise on appeal.

Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa.Super. 2020), appeal

denied, ___ Pa. ___, 250 A.3d 468 (2021). See also Pa.R.A.P.

1925(b)(4)(vii) (stating that issues not included in concise statement and/or

not raised in accordance with rule are waived).

Instantly, the PCRA court deemed all of Appellant’s issues waived on

appeal based on his failure to comply with the court’s Rule 1925(b) order.

(See PCRA Court Opinion, filed January 4, 2021, at 1). Appellant claims that

he is still entitled to the appointment of counsel and blames PCRA counsel for

failing to file a Rule 1925(b) statement on his behalf. Nevertheless, once the

court permits PCRA counsel to withdraw after filing a Turner/Finely “no-

merit” letter, an appellant is no longer entitled to the appointment of counsel

on appeal. See Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super. 2012),

appeal denied, 619 Pa. 714, 64 A.3d 631 (2013) (explaining that when counsel

has been appointed to represent PCRA petitioner and that right has been fully

vindicated following grant of counsel’s petition to withdraw under

Turner/Finley, court shall not appoint new counsel and appellant must look

to his own resources for future proceedings). Consequently, the onus was on

Appellant to comply with the court’s Rule 1925(b) order. Notwithstanding the

court’s grant of multiple extensions, Appellant did not comply. Therefore,

Appellant’s issues are waived on appeal. Accordingly, we affirm.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/17/2021

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