Com. v. Wimberly, N.

Opinion

J-S23015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NICOLE WIMBERLY, : : Appellant : No. 3711 EDA 2017

Appeal from the Judgment of Sentence Entered October 27, 2017 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001931-2015

BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED JUNE 08, 2018

Appellant, Nicole Wimberly, appeals from the judgment of sentence

entered on October 27, 2017.1 After careful review, we remand for further

proceedings.

The record reveals that on August 20, 2015, Appellant plead guilty to

one count of access device fraud, graded as a felony of the third degree.2 The

trial court sentenced Appellant to a term of one to three months of

incarceration followed by six years of probation. Sentencing Order, 8/20/15.

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1In her notice of appeal, Appellant purports to appeal from the “order” entered on “November 1, 2017.” Notice of Appeal, 11/2/17. It is evident, however, that Appellant is challenging the judgment of sentence imposed on October 27, 2017, following the revocation of her probation. We have corrected the caption accordingly.

2 18 Pa.C.S. § 4106(a)(1)(ii). ____________________________________ * Former Justice specially assigned to the Superior Court. J-S23015-18

On June 30, 2016, Appellant was accused of violating her probation by failing

to: maintain a verifiable address; remain drug free; report to her probation

officer; and make payments on her court costs, fees, and restitution. Petition

for Review of Probation, 6/30/16. On August 12, 2016, Appellant was found

in violation of her probation, and the trial court resentenced her to a term of

four to twelve months of incarceration followed by five years of probation.

The trial court granted Appellant parole on December 7, 2016. However, on

April 13, 2017, Appellant was accused of violating her probation and parole

due to, inter alia, new criminal charges filed on April 10, 2017. On October

27, 2017, the trial court revoked Appellant’s probation and parole and

resentenced her on the probationary sentence to a term of two and one-half

to five years of incarceration.

Despite being represented by Timothy Prendergast, Esquire, Appellant

filed a pro se notice of appeal on November 2, 2017. Apparently unaware of

the pro se appeal, on November 3, 2017, Attorney Prendergast filed a post-

sentence motion for reconsideration of sentence claiming that Appellant’s

sentence was “unduly harsh” and “shocked the conscience.” Post-sentence

Motion, 11/3/17. Nevertheless, because an appeal was filed, the trial court

did not rule on the counseled post-sentence motion and directed Appellant to

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

Pa.R.A.P. 1925(b). Appellant failed to respond.

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On March 6, 2018, Attorney Prendergast filed a brief in this Court on

behalf of Appellant. In the brief, counsel avers that the sentence imposed by

the trial court was not an abuse of discretion. Appellant’s Brief at 11. Counsel

then states: “Therefore, Appellant files this brief without argument as to the

merits to an appeal in the above-captioned matter.” Id.

We find that counsel’s actions were improper. Counsel was required to

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

Pa.R.A.P. 1925(b), or if counsel concluded that Appellant had no meritorious

issues to support an appeal, he should have filed a statement indicating his

intent to file an Anders brief3 pursuant to Pa.R.A.P. 1925(c)(4).4 Counsel

pursued neither of these options and instead effectively abandoned Appellant

on her appeal.

After review, we conclude that Attorney Prendergast’s failure to respond

to the trial court’s Pa.R.A.P. 1925(b) order is per se ineffective assistance of

counsel. Pa.R.A.P. 1925(c)(3). Pursuant to Rule 1925(c)(3), in such

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3 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (enumerating the procedure through which counsel may withdraw from representation on direct appeal where there are no meritorious issues and an appeal would be frivolous).

4 If counsel believed that he was prohibited from pursuing a challenge to the discretionary aspects of Appellant’s sentence because Appellant’s pro se notice of appeal prevented the trial court from considering the counseled post- sentence motion, counsel could have discontinued the appeal and proceeded under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. This course of action would have allowed Appellant to pursue the reinstatement of her right to file a post-sentence motion nunc pro tunc.

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instances, this Court must remand for the filing of a statement nunc pro tunc

and for the preparation and filing of an opinion by the trial court. Accordingly,

we are constrained to remand this matter to the trial court. On remand,

counsel shall, within twenty-one days of the filing of this Memorandum, file a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) or

a statement of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).

After Appellant complies with Pa.R.A.P. 1925, the trial court shall do likewise

within thirty days.

Case remanded for further proceedings consistent with this

Memorandum. Panel jurisdiction retained.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/8/18

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