Com. v. Hernandez Rivera, N.

• Court: Superior Court of Pennsylvania
• Decided: October 22, 2021
• Docket: 346 MDA 2021
• Status: Unpublished

Opinion

J-S26012-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

NELSON HERNANDEZ RIVERA

Appellant No. 346 MDA 2021

Appeal from the PCRA Order entered March 2, 2021 In the Court of Common Pleas of Luzerne County Criminal Division at No: CP-40-CR-0002098-2017

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.: FILED: OCTOBER 22, 2021

Appellant, Nelson Hernandez Rivera, appeals pro se from the March 2,

2021 order entered in the Court of Common Pleas of Luzerne County

dismissing his first petition for collateral relief filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon review,

we remand to the PCRA court for the preparation of a supplemental

Pa.R.A.P. 1925(a) opinion.

In its Pa.R.A.P. 1925(a) opinion, the PCRA court urges this Court to

quash the instant appeal because the notice of appeal, which was dated

March 1, 2021, but filed March 16, 2021, did not “include a statement that

the order appealed from had been entered on the docket and no date is

provided for the order resulting in the appeal.” PCRA Court Opinion,

5/21/21, at 2 (unnumbered) (relying on Pa.R.A.P. 301(a)(1), Pa.R.A.P. J-S26012-21

904(d), and Commonwealth v. Dennis, 2020 WL 6377004 (Pa. Super.

October 30, 2020)).

We agree with the PCRA court that the notice of appeal is defective.

However, it is obvious from the criminal docketing statement that Appellant

is appealing the March 2, 2021 order. Accordingly, we will entertain this

timely appeal despite the inadequacy of the notice. See Commonwealth v.

Martin, 462 A.2d 859, 860 (Pa. Super. 1983), overruled on other grounds

by Commonwealth v. Graves, 508 A.2d 1198 (Pa. 1986). See also

Commonwealth v. Poulson, 2021 WL 2935597, at *1 n.2 (Pa. Super. July

13, 2021) (“A failure to comply with Pa.R.A.P. 904 will not result in a

dismissal of the notice of appeal as long as the notice of appeal is timely

filed.” In re McElhatton, 729 A.2d 163, 165 (Pa. Cmwlth. 1999), (citing

Commonwealth v. Gumpert, 512 A.2d 699 (Pa. Super. 1986));

Commonwealth v. Simmons, 2021 WL 4147092, at *1 n.1 (Pa. Super.

September 13, 2021) (same).

Appellant raises several issues for our review. Essentially, however, it

appears that Appellant is arguing that trial counsel was ineffective for letting

him plead guilty despite language issues, that direct appeal counsel was

ineffective for not challenging the validity of his plea, and that PCRA counsel

was ineffective for failing to challenge the effectiveness of trial counsel and

direct appeal counsel.

-2- J-S26012-21

We are unable, however, to address these claims as we do not have

the benefit of the PCRA court’s Pa.R.A.P. 1925(a) opinion addressing those

issues.1

Accordingly, we remand to the PCRA court for the filing of a

supplemental Rule 1925(a) opinion addressing the issues Appellant raised in

his appellate brief. The PCRA Court shall have 30 days from the date of this

memorandum to issue and file a supplemental Rule 1925(a) opinion and

return the supplemented original record to our Court.

Case remanded for proceedings consistent with this memorandum.

Jurisdiction retained.2

____________________________________________

1 In its opinion, the PCRA Court noted, without explaining, that “[e]ven if [Appellant’s PCRA petition] were to be considered, it is without merit.” PCRA Court Opinion, 5/21/21, at 3 (unnumbered).

2 Appellant’s motion for leave to file an amended notice of appeal is denied

as moot.

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