Com. v. Young, D.

• Court: Superior Court of Pennsylvania
• Decided: July 31, 2014
• Docket: 1468 WDA 2013
• Status: Unpublished

Opinion

J-S13034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DERRICK YOUNG

Appellant No. 1468 WDA 2013

Appeal from the PCRA Order dated August 12, 2013 In the Court of Common Pleas of Fayette County Criminal Division at No: CP-26-CR-0001352-2010

BEFORE: PANELLA, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 31, 2014

Derrick Young appeals pro se from the order dated August 12, 2013

that dismissed his petition under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-46. Because the PCRA court failed to comply with

Pennsylvania Rule of Appellate Procedure 1925(a), we remand for the filing

of a Rule 1925(a) opinion.

Appellant is serving a prison sentence of 15 to 30 years for his

conviction of rape by forcible compulsion, 18 Pa.C.S.A. § 3121(a)(2), and

other crimes. After exhausting his direct-appeal rights, Appellant filed a

timely pro se first PCRA petition in which he contended that his trial counsel

was ineffective. The PCRA court appointed Dianne Zerega, Esq. to represent

Appellant. On August 6, 2013, Ms. Zerega moved to withdraw as counsel J-S13034-14

and filed a Turner/Finley1 no-

petition was meritless. On August 12, 2013, the PCRA court entered the

following order:

AND NOW, this 12th day of August, 2013, upon review of the Post-Conviction Relief Act Petition filed by Defendant and the - Esquire, the Petition for Relief is DENIED.

Trial Court Order, 8/12/13. The same day, the PCRA court also granted Ms.

otion to withdraw as counsel.2

Appellant filed a timely pro se notice of appeal on September 4, 2013.

With the notice of appeal, Appellant filed an unprompted concise statement

of errors complained of on appeal. On the same day, the PCRA court filed

the following statement:

AND NOW, this 4th day of September, 2013, having received the Notice of Appeal from our ORDER DENYING the Defendant Derick -Conviction Relief Act Petition, we find that the well- - Finley brief entered into the record on the th 6 day of August 2013 by appointed counsel, Dianne Zerega, ____________________________________________

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 2 The PCRA court failed to give notice to Appellant and 20 days to respond prior to dismissing the petition. See Pa.R.Crim.P. 907(1) (providing that a shall give notice . . without a hearing) (emphasis added). But see Commonwealth v. Pursell, 749 A.2d 911, 917 n.7 (Pa. 2000) (criticizing a PCRA court for failing to provide a Rule 907 notice, but rejecting the claim on appeal because the PCRA petition was facially untimely); Commonwealth v. Taylor .

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Esq., has squarely addressed all relevant issues raised on appeal. Therefore, believing all issues to be without merit, the Court shall rely on the record.

Trial Court Statement in lieu of Opinion Pursuant to Pa.R.A.P. 1925,

9/5/2013. Th

concise statement.3 ____________________________________________

3 The law is unclear as to whether Appellant is limited to the issues in his concise statement even though the PCRA court did not order him to file one. In Commonwealth v. Snyder, 870 A.2d 336, 341 (Pa. Super. 2005), this Court held that the appellant waived all issues not included in his unprompted concise statement.

It is of no moment that appellant was not ordered to file a 1925(b) statement. Appellant filed his statement contemporaneously with his notice of appeal. Accordingly, there was no need for the trial court to order him to file a 1925(b) statement. If we were to find that because he was not ordered to file a 1925(b) statement, he has not waived the issues he neglected to raise in it, we would, in effect, be allowing appellant to circumvent the requirements of the Rule.

Id. However, in our recent decision in Commonwealth v. Antidormi, 84 A.3d 736, 744-45 (Pa. Super. 2014), we refused to conduct a waiver inquiry because the trial court did not order the appellant to file a concise statement, even though he did so.

Because the trial court did not order the filing of a Rule 1925(b) statement, we will not conduct a waiver inquiry pursuant to Pa.R.A.P. 1925(b)(4). The requirements of Rule 1925(b) are not invoked in cases where there is no trial court order directing an appellant to file a Rule 1925(b) statement. See Commonwealth v. Thomas, 451 A.2d 470, 472 n. 8 (Pa.

statement of [errors] complained of on appeal and appellant must fail to comply with such directive before this Court can find see also Commonwealth v. Hess, 810 A.2d 1249, 1252 (Pa. 2002).

Antidormi, 84 A.3d at 745 n.7 (parallel citations omitted).

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Commonwealth

v. Ford, 44 A.3d 1190, 1194 (P

Id.

Id. When a PCRA court dismisses a petition without a

Commonwealth v. Keaton, 45 A.3d 1050, 1094 (Pa. 2012).

Rule 1925(a) provides:

(1) General rule. Except as otherwise prescribed by this rule, upon receipt of the notice of appeal, the judge who entered the order giving rise to the notice of appeal, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief opinion of the reasons for the order, or for the rulings or other errors complained of, or shall specify in writing the place in the record where such reasons may be found.

absence of a trial court opinion poses a substantial impediment to

meaningful and effective appellate review Commonwealth v. Grundza,

819 A.2d 66, 68 (Pa. Super. 2003) (quoting Commonwealth v. Lord, 719

in lieu of a Rule 1925(a) opinion that explains the bases for its rulings.

Yankowski v. Katz, Inc., 662 A.2d 665, 667 n.3 (Pa. Super. 1995).

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In Commonwealth v. Williams, 732 A.3d 1167, 1174 (Pa. 1999), for

Supreme Court strongly disapproved of the PC

remanded for the filing of a proper opinion. Id. at 1176. Though the

Williams court was motivated, in part, by the capital nature of the case, the

holding has been extended to non-capital cases. Commonwealth v.

Fulton, 876 A.2d we hold that the rule in

. . . Williams applies equally to non-

are not of record. The PCRA court failed to explain why it

PCRA petition meritless.

-merit letter for

two reasons. First, Turner/Finley

record by the PCRA court. Commonwealth v. Rykard, 55 A.3d 1177, 1184

(Pa. Super. 2012); see also Fulton, 876 A.2d at 345 (noting that a PCRA

independent judicial analysis in support

of dispositive orders so as to better focus appeals and better facilitate the

appellate

cannot review the sufficiency of a no-merit letter filed in the PCRA court.

Commonwealth v. Pitts, 981 A.2d 875, 880 (Pa. 2009). Were we to

-merit letter, we would

need to weigh the sufficiency of that letter, in violation of Pitts.

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Here, the PCRA court entered a one-sentence dismissal order. After

Appellant filed his notice of appeal with an unprompted concise statement,

the PCRA court incor -merit letter in a second one-

sentence statement in lieu of a Rule 1925(a) opinion. In sum, the PCRA

have nothing to

review regarding its factual findings in support of its conclusion that

a Rule 1925(a) opinion. The PCRA court must file its opinion within 30 days

of the date of remand.

Case remanded for the filing of a Rule 1925(a) opinion. Panel

jurisdiction retained.

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