Com. v. Freeman, M.

• Court: Superior Court of Pennsylvania
• Decided: July 23, 2015
• Docket: 2584 EDA 2014
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MARDEA SHAREE FREEMAN

Appellant No. 2584 EDA 2014

Appeal from the Judgment of Sentence August 5, 2014 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0007735-2013

BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED JULY 23, 2015

Appellant, Mardea Sharee Freeman, appeals from the August 5, 2014

judgment of sentence of six months’ probation, imposed after the trial court

found her guilty of one count of criminal conspiracy.1 After careful review,

we remand this case pursuant to Pennsylvania Rule of Appellate Procedure

1925(c)(3).

We summarize the relevant procedural history of this case as follows.

On December 18, 2013, the Commonwealth filed an information charging

Appellant with the aforementioned offense, as well as one count of theft by

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* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. § 903. J-S42018-15

deception.2 On March 17, 2014, Appellant was admitted into the Bucks

County Accelerated Rehabilitative Disposition (ARD) program for 12 months.

After an arrest on new criminal charges, however, Appellant’s participation in

the ARD program was revoked on August 5, 2014. Immediately thereafter,

Appellant, while represented by retained counsel, proceeded to a bench trial

on the aforementioned charges. At the conclusion of the trial, the trial court

found Appellant guilty of criminal conspiracy, but not guilty of theft by

deception. That same day, the trial court sentenced Appellant to six months’

probation.

On August 27, 2014, Appellant timely filed a notice of appeal

accompanied by a letter from her trial counsel stating as follows. “Please

note that I have not been retained to represent [Appellant] on appeal. We

are assisting [Appellant] in filing the enclosed [n]otice of [a]ppeal so as to

preserve her rights.” Letter dated 8/25/14 from trial counsel (emphasis in

original). On September 15, 2014, the trial court entered an order, directing

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

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) within 21

days. Trial Court Order, 9/15/14, at 1. The trial court served notice of this

order on Appellant’s trial counsel, who remained counsel of record.

2 18 Pa.C.S.A. § 3922(a)(1).

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On October 17, 2014, the trial court issued its 1925(a) opinion, finding

Appellant had waived her appeal based on her failure to file a Rule 1925(b)

statement and suggesting that we quash this appeal. Trial Court Opinion,

10/17/14, at 3-4. Also on that date, Appellant’s trial counsel filed with this

Court a motion to withdraw as counsel. On November 5, 2014, this Court

per curiam granted counsel’s motion to withdraw and directed the trial court

to determine Appellant’s eligibility for court appointed counsel within 60

days. Consequently, on November 26, 2014, the trial court held a hearing

and appointed counsel to Appellant for this appeal.

Ordinarily, the failure to file a court-ordered 1925(b) statement results

in a waiver of all issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii);

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (explaining Rule

1925(b) is a bright-line rule). However, “[t]he complete failure to file the

[Rule] 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.” Commonwealth v. Thompson, 39 A.3d 335, 339 (Pa.

Super. 2012), quoting Commonwealth v. Burton, 973 A.2d 428, 432 (Pa.

Super. 2009) (en banc); see also Commonwealth v. Scott, 952 A.2d

1190, 1192 (Pa. Super. 2008). In such circumstances, Rule 1925(c)(3)

directs us to remand for the filing of a Rule 1925(b) statement nunc pro tunc

and for the preparation of an opinion by the trial court. Pa.R.A.P.

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As noted, on September 15, 2014, the trial court ordered Appellant to

file her Rule 1925(b) statement within 21 days, i.e., on or before October 6,

2014. At that time, Appellant was still represented by trial counsel. See

Pa.R.Crim.P. 120(B)(1) (providing counsel may only withdraw his or her

appearance by leave of court); Commonwealth v. Librizzi, 810 A.2d 692,

693 (Pa. Super. 2002) (noting that “once an appearance is entered, the

attorney is responsible to diligently and competently represent the client

until his or her appearance is withdrawn[]”) (citations omitted). Trial

counsel remained Appellant’s counsel of record until this Court granted his

motion to withdraw on November 5, 2014. Trial counsel never complied

with the trial court’s order to file a Rule 1925(b) statement, which we

conclude is per se ineffectiveness. See Thompson, supra. Therefore, we

remand in accordance with Rule 1925(c)(3).

Based on the foregoing, we remand this matter for the filing of a

1925(b) statement nunc pro tunc with the trial court within 30 days of this

memorandum and for the preparation of an opinion by the trial court 30

days thereafter. See Pa.R.A.P. 1925(c)(3); Scott, supra.

Case remanded. Jurisdiction retained.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/23/2015

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