Com. v. Halgash, P. ( 2017 )

J-S55026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
PATRICIA HALGASH
Appellant No. 1874 MDA 2016
Appeal from the Judgment of Sentence October 20, 2016
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004545-2015
BEFORE: DUBOW, RANSOM, and STRASSBURGER, JJ.*
JUDGMENT ORDER BY RANSOM, J.: FILED OCTOBER 02, 2017
Appellant, Patricia Halgash, appeals from the judgment of sentence of
four years and three days to fifteen years of incarceration, imposed October
20, 2016, following a jury trial resulting in her convictions for homicide by
vehicle, homicide by vehicle while driving under the influence, aggravated
assault by vehicle, aggravated assault by vehicle while driving under the
influence, DUI – general impairment, DUI – controlled substance-
combination of alcohol and drugs, and disregarding traffic lanes.1 We affirm.
On July 14, 2016, a jury convicted Appellant of the aforementioned
charges. On October 20, 2016, she appeared for sentencing and was
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*
Retired Senior Judge assigned to the Superior Court.
1
See 75 Pa.C.S. §§ 3732(a), 3735(a), 3732.1(a), 3735.1(a), 3802(a)(1),
3802(d)(3), and 3309(1), respectively.
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sentenced to four years and three days to fifteen years of incarceration.2
Appellant timely appealed and, on November 23, 2016, the court ordered
her to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant did not file a statement. In its memorandum
opinion filed pursuant to Pa.R.A.P. 1925(a), the court stated:
Defendant has failed to file and serve a statement of matters
complained of on appeal as directed in my Pa.R.A.P. 1925 Order
dated November 23, 2016.
Accordingly, it is requested that the Court dismiss Defendant’s
Appeal.
See Trial Court Opinion (TCO), 12/21/16, at 1.
Where a trial court orders an Appellant to file a Pa.R.A.P. 1925(b)
statement, the Appellant must comply in a timely manner. Commonwealth
v. Castillo, 888 A.2d 775, 780 (Pa. 2005). Failure to comply with a Rule
1925(b) order will result in waiver of all issues raised on appeal. Id.; see
also Greater Erie Indus. Development Corp. v. Presque Isle Downs,
Inc., 88 A.3d 222, 225 (Pa. Super. 2014); Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the Statement and/or not raised in accordance with
the provision of this paragraph (b)(4) are waived.”). The record reflects that
the trial court issued an order requiring Appellant to submit a Rule 1925(b)
statement and that Appellant failed to file such a statement within twenty-
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2
The sentencing notes are not included in the certified record, but as
Appellant does not challenge her sentence, we have not requested them.
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one days of the date of that order. Appellant has not attempted to explain
her failure to file a statement nor even mentioned this failure in her brief.
Thus, due to Appellant’s failure to submit a Rule 1925(b) statement, we
conclude that any issues she wished to raise have been waived.
Appellant’s counsel has filed a reply brief in which he asserts that he
never received the Pa.R.A.P. 1925(b) order due to the fact that it was sent
to the wrong address. See Reply Brief at 5. Counsel argues that Appellant
should not be punished for an administrative error of the judicial system.
Id. We do not accept this explanation as plausible or excusable.
Initially, we note that the docket reflects that the Pa.R.A.P. 1925(b)
order was issued November 23, 2016. The order itself reflects that a copy
was sent to counsel at 1500 JFK Blvd., Suite 900, Philadelphia,
Pennsylvania, 19102, which counsel avers was the wrong address. While
Appellant claims that the court did not update the docket to reflect his
correct address, it is counsel’s responsibility to ensure his address is correct
and up to date. See Pa.R.Crim.P. 120; see also L.C.R.Crim.P. No. 120
(noting that the entry of appearance must include the attorney’s address,
phone number, attorney ID number, and email address). Further, the
court’s Pa.R.A.P. 1925(a) opinion, with that same order attached, was
served upon counsel by electronic service on December 21, 2016. Counsel
does not address this service, nor does he explain why, since he was served
with the court’s opinion and order on December 21, 2016, his May 17, 2017
brief does not acknowledge the waiver. If counsel truly was unaware of the
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issuance of the order until receipt of the electronic filing, he could have
acknowledged the waiver in his brief and requested that this Court remand
the matter for the filing of a Pa.R.A.P. 1925(b) statement.
The failure to file a Pa.R.A.P. 1925(b) statement is per se
ineffectiveness. See Commonwealth v. Thompson, 39 A.3d 335, 339-40
(Pa. Super. 2012); see also Pa.R.A.P. 1925(c)(3). Accordingly, Appellant is
free to file a petition pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546, while she has the opportunity to do so.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2017
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