Com. v. Randolph, B.

• Court: Superior Court of Pennsylvania
• Decided: December 19, 2019
• Docket: 865 WDA 2019
• Status: Unpublished

Opinion

J-S68032-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BENJAMIN HAROLD RANDOLPH : : Appellant : No. 865 WDA 2019

Appeal from the Judgment of Sentence Entered May 9, 2019 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001469-2017

BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED DECEMBER 19, 2019

Appellant, Benjamin Harold Randolph, appeals from the judgment of

sentence entered in the Fayette County Court of Common Pleas, following his

bench trial convictions for possession of a controlled substance, possession

with the intent to deliver, possession of a small amount of marijuana, and

possession of drug paraphernalia. The court sentenced Appellant on May 9,

2019, to an aggregate 6 to 12 years’ imprisonment. On June 6, 2019, trial

counsel filed a petition to withdraw. The next day, Appellant filed a pro se

notice of appeal, while the court granted trial counsel’s petition to withdraw

and appointed new appellate counsel. On June 11, 2019, the court ordered

new counsel to file a concise statement per Pa.R.A.P. 1925(b), within 21 days.

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* Retired Senior Judge assigned to the Superior Court. J-S68032-19

The docket entries confirm the court served its order on new counsel but,

according to the certified record, counsel did not respond.

Preliminarily, Rule 1925(c)(3) allows the appellate Court to remand “for

appointment of new counsel, the filing of a Statement nunc pro tunc, and the

preparation and filing of an opinion by the judge[,]” if the trial court ordered

an appellant in a criminal case to file a Rule 1925(b) statement, none was

filed, and counsel’s failure to do so appears to be per se ineffectiveness.

Pa.R.A.P. 1925(c)(3). This Court has held that counsel’s complete failure to

file a court-ordered Rule 1925(b) statement is per se ineffectiveness.

Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc).

Generally, when waiver occurs due to counsel’s complete failure to file a Rule

1925(b) statement, remand is proper. Commonwealth v. Mitchell, 986

A.2d 1241 (Pa.Super. 2009) (noting counsel’s failure to file court-ordered Rule

1925(b) statement required remand for filing concise statement nunc pro

tunc); Commonwealth v. Scott, 952 A.2d 1190 (Pa.Super. 2008)

(recognizing amendment to Rule 1925 relaxed automatic waiver rule in

criminal cases, stating counsel’s complete failure to file court-ordered Rule

1925(b) statement is presumptively prejudicial). Upon remand, counsel must

file a concise statement nunc pro tunc within 30 days; thereafter, the court

should prepare and file an opinion within 30 days. Id.

Instantly, the record makes clear the court filed and served appellate

counsel with a proper Rule 1925(b) order, but counsel did not respond. In its

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opinion, the trial court deemed Appellant’s issues waived for failure to comply

with the court’s directive. Counsel’s complete failure to file a court-ordered

Rule 1925(b) statement constitutes per se ineffectiveness. See Burton,

supra.

Additionally, counsel’s brief does not provide any real analysis of law as

applied to the facts of Appellant’s case for either issue raised on appeal or any

law to support one of the issues presented. Instead, the brief consists mainly

of conclusory statements.

Under these circumstances, we remand this case for the appointment of

new appellate counsel within 10 days of the filing date of this judgment order.

New counsel must promptly review the record, consult with Appellant about

the issues he wants to raise on appeal, and file and serve a Rule 1925(b)

statement nunc pro tunc within 30 days of counsel’s appointment. Upon

proper filing and receipt of the concise statement nunc pro tunc, the trial court

shall have 30 days to prepare a supplemental opinion. After the court

certifies its decision and returns the record to this Court, the Prothonotary

shall establish a new briefing schedule and assign the appeal to the next

available submit panel in the Western District. Accordingly, we remand the

case with instructions.

Case remanded with instructions. Jurisdiction is retained.

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