Com. v. Hosler, H.

• Court: Superior Court of Pennsylvania
• Decided: January 6, 2023
• Docket: 99 MDA 2022
• Status: Unpublished

Opinion

J-S26026-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HARRY EDWARD HOSLER : : Appellant : No. 99 MDA 2022

Appeal from the Judgment of Sentence Entered December 13, 2021 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0002137-2016

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.: FILED: JANUARY 6, 2023

Harry Edward Hosler (Appellant) appeals pro se from the judgment of

sentence entered in the Schuylkill County Court of Common Pleas, following

the revocation of his probation pursuant to a 2020 guilty plea to criminal

trespass.1 After careful review, we remand this case pursuant to Pennsylvania

Rule of Appellate Procedure 1925(c)(3).

We summarize the relevant factual and procedural history as follows.

On June 30, 2020, Appellant pleaded guilty to one count of criminal trespass.

On July 12, 2021, while Appellant was serving an 18 month term of probation

related to the above guilty plea, Pottsville Police Department Detective Joseph

Krammes obtained a search warrant for a home on East Market Street in ____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3503(a)(1)(ii). J-S26026-22

Pottsville, Pennsylvania in relation to a burglary. See N.T. Revocation,

12/13/21, at 3-4. Appellant listed this home as his address with the office of

probation. Id. at 12; County of Schuylkill Adult Probation/Parole Department

Conditions Governing Probation, 7/14/2020, at 1 (unpaginated). While

searching the home, Detective Krammes located a digital scale, sandwich

bags, and methamphetamines in a room Appellant shared with his former

girlfriend. N.T. at 4-5. Detective Krammes arrested both Appellant and his

former girlfriend. Id. at 5.

Appellant was charged with possession with intent to distribute (PWID),

possession of a controlled substance, and possession of drug paraphernalia.2

Due to these charges, the Office of Probation/Parole filed a motion to revoke

Appellant’s probation. See Motion to Revoke Probation, 12/3/21.

On December 13, 2021, the trial court held a revocation hearing where

the Commonwealth presented, inter alia, the above testimony of Detective

Krammes. Appellant also testified at the proceeding. N.T. at 12, 14. The

trial court revoked Appellant’s probation3 and resentenced him to a term of

12 to 24 months’ incarceration.

Appellant then filed a timely counseled notice of appeal. On January 13,

2022, the trial court ordered Appellant to file a statement of errors complained ____________________________________________

2 35 P.S. §§ 780-113(a)(32), (a)(30), (a)(16), respectively.

3 During the hearing, the court also revoked Appellant’s parole regarding an unrelated matter that is listed at Docket No. CP-54-CR-0000852-2020. That case is not subject to this appeal.

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of on appeal pursuant to Pa.R.A.P. 1925(b) within 25 days — February 7th.

The trial court served notice of this order on Appellant’s revocation counsel,

who remained counsel of record. Notably, Appellant’s counsel did not file a

Rule 1925(b) statement. Instead, on February 1, 2022, six days before the

concise statement was due, counsel filed a petition to withdraw with this

Court.4 After remanding the matter to the trial court for a Grazier5 hearing,

it granted counsel’s petition on February 14, 2022. See Trial Court’s Response

to Superior Court Order of Feb. 3, 2022, 2/14/22.6

Meanwhile, Appellant filed a litany of pro se motions in the trial court,

which were stayed pending this Court’s disposition on appeal. See Appellant’s

Pro Se Motion for “Habious Corpes [sic] (Suppression of Evidence),” 1/18/22;

Appellant’s Pro Se Motion for “Sentence Modification,” 1/21/22; Appellant’s

Pro Se “Motion to Dismiss,” 1/27/22; Appellant’s Pro Se Motion for

“Suppression of Evidence,” 1/28/22; Appellant’s Pro Se “Motion to Dismiss,”

____________________________________________

4 Relatedly, counsel did not file a Pa.R.A.P. 1925(c)(4) statement of intent to withdraw in lieu of a concise statement. See Pa.R.A.P. 1925(c)(4) (where counsel intends to withdraw from representation, they shall file a statement of intent to withdraw in lieu of a Rule 1925(b) statement, allowing any arguably meritorious claims to withstand waiver).

5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (requiring on the record inquiry to determine whether waiver of counsel is knowing, intelligent, and voluntary).

6 From the record before us, it does not appear that Appellant was re-notified that he needed to file a timely pro se Rule 1925(b) statement, nor was he informed he risked waiver for not filing any statement at all.

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1/28/22; Appellant’s Pro Se Motion for “Grounds for Mistrial,” 1/28/22;

Appellant’s Pro Se Motion for “Modification of Sentence,” 1/28/22; Appellant’s

Pro Se “Motion to Compell,” 3/9/22; Appellant’s Pro Se “Motion of Relief,”

3/9/22; Appellant’s “Motion of Relief,” 5/4/22; see also Order, 4/14/22

(staying Appellant’s pro se motions pending this Court’s disposition on

Appellant’s appeal).

On March 16, 2022, the trial court issued its Pa.R.A.P. 1925(a) opinion,

finding Appellant waived all issues on appeal because he did not file a concise

statement, and therefore, it was “not in a position to address whatever issues

Appellant . . . may be raising on appeal.” Trial Ct. Op. 3/16/22, at 2

(unpaginated). Further, it submitted that should Appellant file a Rule 1925(b)

statement, it would be deemed untimely and waived. Id. We disagree.

Generally, 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 and any claims not raised in the statement will be

waived). However, we note the following exception to the general rule: “The

complete failure to file the [Rule] 1925 concise statement [by counsel] 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) (citation

omitted). Where counsel is ineffective for failing to file a concise statement,

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Pa.R.A.P. 1925(c)(3) directs that this Court may provide the following

remedy:

If an appellant represented by counsel in a criminal case was ordered to file and serve a Statement and either failed to do so, or untimely filed or served a Statement, 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 or service of a Statement nunc pro tunc, and the preparation and filing of an opinion by the judge.

Pa.R.A.P. 1925(c)(3).7

Here, on January 13, 2022, the trial court ordered Appellant to file a

Rule 1925(b) statement within 25 days — February 7th. At that time,

Appellant was still represented by revocation counsel. Though Appellant’s

attorney filed his petition to withdraw on February 1st — before the deadline

for filing a concise statement — he remained Appellant’s counsel of record ____________________________________________

7 The note to Rule 1925(c)(3) further explains:

This subparagraph allows an appellate court to remand in criminal cases only when an appellant, who is represented by counsel, has completely failed to respond to an order to file and serve a Statement or has failed to do so timely. It is thus narrower than subparagraph (c)(2). See, e.g., Commonwealth v. Burton, 973 A.2d 428, 431 (Pa. Super. 2009); Commonwealth v. Halley, 870 A.2d 795, 801 (Pa. 2005); Commonwealth v. West, 883 A.2d 654, 657 (Pa. Super. 2005). Per se ineffectiveness applies in all circumstances in which an appeal is completely foreclosed by counsel’s actions, but not in circumstances in which the actions narrow or serve to foreclose the appeal in part. Commonwealth v. Rosado, 150 A.3d 425, 433-35 (Pa. 2016).

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

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until the trial court granted his petition on February 14, 2022, which was after

the deadline for filing a concise statement. 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)

(stating that once counsel enters his appearance, he must “diligently and

competently represent the client until his or her appearance is withdrawn” and

counsel may not withdraw his representation until granted leave by the court)

(citation omitted).

Revocation counsel never complied with the trial court’s order to file a

Rule 1925(b) statement before the trial court granted his petition to withdraw,

and did not even file a Rule 1925(c)(4) statement. As mentioned above, the

trial court determined that Appellant had waived any type of claim on appeal

based on the failure to file a concise statement. Trial Ct. Op. at 1-2. As such,

counsel’s action, or lack thereof, completely foreclosed Appellant’s appeal.

See Pa.R.A.P. 1925(c)(3), note. Counsel effectively abandoned Appellant,

which we conclude amounts to per se ineffectiveness. See Pa.R.A.P.

1925(c)(3); Commonwealth v. West, 883 A.2d 654, 657-58 (Pa. Super.

2005) (where counsel failed to file a substantive concise statement, they have

effectively abandoned their client). Therefore, in accordance with Rule

1925(c)(3), we remand this appeal for the filing of a Rule 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); Thompson, 39 A.3d at 339.

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Case remanded for further proceedings consistent with this

memorandum. Jurisdiction retained.

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