Com. v. Lehman, R.

Opinion

J-A25043-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICHARD A. LEHMAN : : Appellant : No. 379 WDA 2021

Appeal from the Judgment of Sentence Entered February 2, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0003613-2019

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*

JUDGMENT ORDER BY COLINS, J.: FILED: JUNE 13, 2022

Before this Court is the application for remand filed by Appellant’s

appointed counsel, the Erie County Office of Public Defender (“Public

Defender”). We remand for additional proceedings consistent with this

judgment order.

We briefly address the procedural history of this matter. Appellant

entered a guilty plea to robbery1 on October 28, 2020 and he was sentenced

on February 2, 2021. Appellant filed a timely post-sentence motion, which

the trial court denied on February 17, 2021. Appellant filed a notice of appeal

on March 22, 2021. The trial court then entered an order directing Appellant

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

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* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 3701(a)(1)(iv). J-A25043-21

of Appellate Procedure 1925(b), Pa.R.A.P. 1925(b), within 21 days. Appellant

filed a Rule 1925(b) statement with the trial court, albeit beyond the 21-day

deadline imposed in the trial court’s order.

The trial court filed a Rule 1925(a) opinion, finding waiver of Appellant’s

appellate issue on the grounds that his notice of appeal and Rule 1925(b)

statement were both untimely; the trial court additionally found waiver on the

basis that his concise statement was so vague that the court could not identify

the issue that was being raised. Trial Court Opinion, 5/13/21, at 4-6.

We issued a prior memorandum decision in this matter on February 8,

2022. See Commonwealth v. Lehman, No. 379 WDA 2021, 2022 WL

366881 (Pa. Super. Feb. 8, 2022) (unpublished memorandum). We concluded

that Appellant’s notice of appeal was untimely but that his late appeal was

excused based upon a breakdown in the court’s operations as the order

denying Appellant’s post-sentence motion did not advise Appellant of his

appeal rights. Id. at *1-2. However, we agreed with the trial court that

Appellant waived his appellate issue based upon the untimeliness of the Rule

1925(b) statement. Id. at *2. Pursuant to Commonwealth v. Burton, 973

A.2d 428, 432-33 (Pa. Super. 2009) (en banc), we found that the untimely

filed Rule 1925(b) statement constituted per se ineffective assistance of

counsel. Lehman, 2022 WL 366881, at *2-3. Moreover, because the trial

court was unable to discern the nature of Appellant’s issue due to the

vagueness of the untimely Rule 1925(b) statement, we determined that

remand was necessary. Id. at *3. We therefore directed the trial court on

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remand to appoint Appellant new counsel within 15 days and to then allow for

the filing of another Rule 1925(b) statement and Rule 1925(a) opinion. Id.

Following remand, on February 17, 2022, the trial court entered an

order appointing the Public Defender as counsel for Appellant and directing

the filing of a new Rule 1925(b) statement within 21 days. On May 26, 2022,

the trial court issued a Rule 1925(a) opinion noting that a new 1925(b)

statement had not been filed and no request for an extension of time to do so

had been received as of that date. Therefore, the trial court found that

Appellant had waived any appellate issues and returned the certified record to

this Court.

On May 27, 2022, the Public Defender filed its application for remand

indicating that it had no record of receipt of the trial court’s February 17, 2022

order. The Public Defender requested that the case be again remanded to the

trial court for appointment of new counsel from the list of contract counsel

due to the Public Defender’s representation of Appellant’s co-defendant.

As in our prior determination in this matter, we conclude that the Public

Defender was per se ineffective for failing to file a Rule 1925(b) statement on

behalf of Appellant. See Burton, 973 A.2d at 432 (“The 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.”); see also Pa.R.A.P. 1925(c)(3). Moreover, as

the trial court has not filed an opinion addressing the issues sought to be

raised on appeal, we conclude that remand is necessary for the appointment

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of new counsel, the filing of a statement nunc pro tunc, and the preparation

of a new opinion by the trial court. Pa.R.A.P. 1925(c)(3).

Accordingly, we again remand this matter to the trial court to appoint

new counsel for Appellant within 15 days of the date that the certified record

is returned to the trial court. New counsel shall file a Rule 1925(b) statement

with the trial court within 21 days of the date of appointment, unless extended

by the trial court. The trial court shall file a supplemental Rule 1925(a)

opinion, or a statement that no further opinion is necessary, within 30 days of

the filing of the Rule 1925(b) statement. The trial court shall include the Rule

1925(b) statement and supplemental opinion, or statement that no further

opinion is necessary, in the certified record.

Case remanded with instructions. Jurisdiction retained.

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