Com. v. Dumay, S.

• Court: Superior Court of Pennsylvania
• Decided: May 21, 2021
• Docket: 819 MDA 2020
• Status: Unpublished

Opinion

J-A03029-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHANNON DUMAY : : Appellant : No. 819 MDA 2020

Appeal from the Judgment of Sentence Entered April 8, 2020, in the Court of Common Pleas of Luzerne County, Criminal Division at No(s): CP-40-CR-0003114-2019.

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

JUDGMENT ORDER BY KUNSELMAN, J.: FILED MAY 21, 2021

Shannon Dumay appeals from the judgment of sentence imposed

following the entry of his guilty plea to possession of a firearm prohibited.1

Additionally, Dumay’s appellate counsel has filed a petition to withdraw from

representation and an accompanying brief pursuant to Anders v. California,

386 U.S. 738, 744 (1967) (hereinafter the “Anders brief”). We deny counsel’s

petition, and remand for the filing of a counseled Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal, as well the preparation and filing

of a supplemental Pa.R.A.P. 1925(a) opinion by the trial court, addressing the

merits of the counseled concise statement.

____________________________________________

1 See 18 Pa.C.S.A. § 6105(a)(1). J-A03029-21

The relevant factual and procedural history can be summarized as

follows. On February 18, 2020, Dumay pled guilty to one count of possession

of firearm prohibited. At the time of his plea hearing, Dumay was represented

by Mark Singer, Esquire, of the Luzerne County Office of the Public Defender.

Dumay was sentenced on April 8, 2020, to five to ten years in prison. Dumay

did not file a post-sentence motion. However, on May 8, 2020, Dumay filed a

timely pro se notice of appeal, a pro se Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal, and a pro se motion for change of counsel.

The trial court granted the motion for change of counsel, and on June 18,

2020, Matthew Kelly, Esquire, was appointed to represent Dumay as conflict

counsel. On June 19, 2020, the trial court ordered Dumay to file a Pa.R.A.P.

1925(b) concise statement. The order was served on both the District

Attorney’s Office and Attorney Kelly. Attorney Kelly did not file a concise

statement on Dumay’s behalf.2

Although the trial court authored a Pa.R.A.P. 1925(a) opinion, it did not

address any of the issues raised by Dumay in his pro se concise statement.

Instead, the trial court indicated that, because Dumay was still represented

by Attorney Singer when he filed his pro se concise statement, that statement

was a legal nullity, since hybrid representation is not permitted. The trial

2 In this court, Attorney Kelly indicates that he did not file a revised concise statement because he received no response from Dumay to any his communications regarding the appellate issues Dumay wished to raise. See Anders Brief at 3.

-2- J-A03029-21

court further determined that, because no counseled concise statement was

filed, none of Dumay’s issues were preserved for appellate review.

Rule 1925(c) provides appellate courts with various remedies when

faced with counsel’s perceived failure to comply with the requirements of Rule

1925(b). Where, as here,

an appellant represented by counsel in a criminal case was ordered to file a Statement and failed to do so . . . 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 Statement nunc pro tunc, and the preparation and filing of an opinion by the judge.

Pa.R.A.P. 1925(c)(3).

In the instant criminal matter, Dumay was represented by Attorney Kelly

at the time the trial court ordered Dumay to file a Pa.R.A.P. 1925(b) concise

statement. This Court is convinced that Attorney Kelly’s failure to file a concise

statement constitutes per se ineffectiveness. See Commonwealth v.

Burton, 973 A.2d 428, 432 (Pa. Super. 2009) (en banc) (holding that “the

complete failure to file the 1925 concise statement is per se ineffectiveness

because it is without reasonable basis designed to effectuate the client’s

interest and waives all issues on appeal”). Although the trial court authored

a Pa.R.A.P. 1925(a) opinion, it did so only to inform this Court that all issues

on appeal were waived due to the lack of a counseled statement. Thus, the

trial court did not file an opinion addressing the merits of any issue Dumay

wished to raise on appeal.

-3- J-A03029-21

We therefore remand the matter to the trial court for Attorney Kelly to

file a Pa.R.A.P. 1925(b) concise statement nunc pro tunc, within twenty-one

days of the date the certified record is returned to the trial court, unless

extended by the trial court. The trial court shall, within 30 days of the filing

of the counseled Rule 1925(b) statement, prepare and file a supplemental

Rule 1925(a) opinion addressing the merits of the issues raised in the

counseled statement.

Petition denied. Case remanded with instructions. Jurisdiction retained.

-4-