Com. v. McCain, N.

• Court: Superior Court of Pennsylvania
• Decided: August 11, 2023
• Docket: 188 MDA 2023
• Status: Unpublished

Opinion

J-S24025-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NATHANIEL BRICE MCCAIN : : Appellant : No. 188 MDA 2023

Appeal from the PCRA Order Entered December 22, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004937-2019

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY LAZARUS, J.: FILED AUGUST 11, 2023

Nathaniel Brice McCain appeals, pro se, from the order, entered in the

Court of Common Pleas of Lancaster County, dismissing his petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

Upon review, we affirm.

On September 22, 2021, McCain entered into an open guilty plea to

possession with intent to deliver (PWID) - fentanyl,1 PWID – crack cocaine,2

and possession of drug paraphernalia.3 The trial court deferred sentencing

and ordered the preparation of a pre-sentence investigation report (PSI). On

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* Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30).

2 Id.

3 Id. at § (a)(32). J-S24025-23

January 24, 2022, the trial court sentenced McCain to an aggregate term of 6

to 12 years in prison. McCain filed a post-sentence motion, which the trial

court denied on February 11, 2022. McCain did not file an appeal.

On August 10, 2022, McCain filed the instant pro se PCRA alleging

ineffective assistance of plea counsel. The PCRA court appointed counsel and,

on December 16, 2022, counsel filed a Turner/Finley4 no-merit letter,

accompanied by a motion to withdraw. On December 22, 2022, the PCRA

court granted counsel’s motion to withdraw, and dismissed McCain’s PCRA

petition without first issuing the required Pa.R.Crim.P. 907 notice of intent to

dismiss.5

McCain filed a timely notice of appeal6 and the PCRA court ordered that

McCain file a Rule 1925(b) concise statement of errors complained of on ____________________________________________

4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

5 Normally, the trial court’s failure to comply with the mandatory notice requirements of Rule 907 would demand that we reverse and remand. See Pa.R.Crim.P. 907(1); see also Commonwealth v. Feighery, 661 A.2d 437, 439 (Pa. Super. 1995). However, as discussed infra, McCain failed to file a court-ordered Pa.R.A.P. 1925(b) concise statement, which results in waiver of all claims on appeal. See Pa.R.A.P. 1925(b)(4)(vii). Consequently, we are constrained to conclude that McCain has waived any challenge to the trial court’s error. See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (“The failure to challenge the absence of a Rule 907 notice constitutes waiver.”) (citation omitted).

6 The trial court’s December 22, 2022 order dismissing McCain’s PCRA petition

was never served on McCain. Rather it was served on prior PCRA counsel and the Commonwealth on December 27, 2022. McCain filed a pro se notice of appeal on January 30, 2023. See Pa.R.A.P. 903(a) (notice of appeal shall be (Footnote Continued Next Page)

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appeal. However, McCain did not file a Rule 1925(b) statement.

Subsequently, the trial court filed its Rule 1925(a) opinion.

McCain’s failure to file a court-ordered Rule 1925(b) statement

mandates that all his claims are waived. See Pa.R.A.P. 1925(b)(4)(vii)

(“Issues not included in the [Rule 1925(b) s]tatement and/or not raised in

accordance with the provisions of [Rule 1925(b)] are waived.”); see also

Commonwealth v. Ray, 134 A.3d 1109, 1114 (Pa. Super. 2016) (Rule

1925(b) requirements apply to pro se appellants with equal force).

Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/11/2023 ____________________________________________

filed within 30 days after entry of order from which appeal is taken). We observe that this Court recently addressed this exact scenario in Commonwealth v. Midgley, 289 A.3d 1111, 1117 (Pa. Super. 2023), where our Court held that we may overlook a facially untimely notice of appeal where the PCRA dismissal order was erroneously sent to prior PCRA counsel, and there was no service upon a pro se petitioner. See id. Indeed, in Midgley, this Court stated that where a pro se petitioner was not served with the dismissal order, Rule 903’s 30-day limit does not begin to run. See id.; see also Pa.R.Crim.P. 907(4) (“[t]he order shall be filed and served as provided in [Pa.R.Crim.P. 114]”) (emphasis added); Pa.R.Crim.P. 114(B)(1) (requiring service on pro se parties). Consequently, we consider McCain’s notice of appeal to be timely filed. See Midgley, supra.

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