Com. v. Wedderburn, P. ( 2014 )

J-S28018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PATRICK ROYB WEDDERBURN
Appellant No. 1372 EDA 2013
Appeal from the Judgment of Sentence April 12, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0004751-2011
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 01, 2014
Patrick Royb Wedderburn appeals from his judgment of sentence
imposed by the Court of Common Pleas of Montgomery County following his
convictions for corrupt organizations,1 possession with intent to deliver a
controlled substance,2 possession of a controlled substance,3 criminal use of
communications facility,4 dealing in proceeds of unlawful activities,5 and
criminal conspiracy.6 We remand for further proceedings.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 911(B)(1).
2
35 Pa.C.S. § 780-113(A)(30).
3
35 Pa.C.S. § 780-113(A)(16).
4
18 Pa.C.S. § 7512(A).
5
18 Pa.C.S. § 5111(A)(1).
6
18 Pa.C.S. § 905.
J-S28018-14
A jury found Wedderburn guilty on January 10, 2013, and on April 12,
imprisonment. Counsel filed a timely notice of appeal on May 10, 2013, and
by order filed May 17, 2013, the trial court directed Wedderburn to file a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Wedderburn did not file a Rule 1925(b) statement, and on July 3, 2013, the
trial court issued a short Rule 1925(a) opinion noting the lack of a Rule
1925(b) statement and recommending that this Court remand pursuant to
Pa.R.A.P. 1925(c)(3).7
On appeal, Wedderburn challenges the legality of his sentence under
the recently announced standard in Alleyne v. United States, 133 S. Ct.
2151 (2013) (facts that increase mandatory minimum sentence that can be
imposed for offense are elements of offense and must be submitted to jury
to be proven beyond reasonable doubt). We decline to reach the merits of
his issue for the following reasons.
____________________________________________
7
We note that the trial court employed the correct procedure when counsel
fails to file a Rule 1925(b) statement. See Commonwealth v. Thompson,
39 A.3d 335, 341 n.11 (Pa. Super. 2012) (where counsel fails to file Rule
per se ineffectiveness in
1925(a) opinion, permit counsel to file a statement nunc pro tunc following
remand from Superior Court, and address issues raised in subsequent Rule
1925(a) opinion).
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Pennsylvania Rule of Appellate Procedure 1925(c)(3), which governs
remand for preparation of a Rule 1925(b) statement in a criminal case,
provides:
If an appellant in a criminal case was ordered to file a Statement
and failed to do so, such that the appellate court is convinced
that counsel has been per se ineffective, the appellate court shall
remand for the filing of a Statement nunc pro tunc and for the
preparation and filing of an opinion by the judge.
Pa.R.A.P. 1925(c)(3). In Commonwealth v. Scott, 952 A.2d 1190, 1192
failed to file a Rule 1925(b) statement as directed . . . counsel has been per
se
prepared a Rule 1925(a) opinion, this Court determined that it was
constrained to remand for preparation of a Rule 1925(b) statement and a
Rule 1925(a) opinion. Id.Here, as in Scott
him to file a concise statement, and, therefore, has been per se ineffective.
And while the trial court authored a Rule 1925(a) opinion, it did not address
the issues on appeal since defense counsel failed to alert the court to the
issues complained of on appeal. Although this Court may review challenges
to the legality of sentencing sua sponte, see Commonwealth v. Garcia-
Rivera, 983 A.2d 777, (Pa. Super. 2009), the trial court should have the
first opportunity to review its sentence in light of Alleyne. Additionally, it is
in the interest of judicial economy to follow the process outlined in Rule
nunc
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pro tunc, Wedderburn may raise any other issues he wishes to address in a
single Rule 1925(b) statement.
Consistent with Scott, we remand for the filing of a Rule 1925(b)
statement nunc pro tunc within 30 days of this memorandum and for the
preparation of an opinion by the trial court, to be filed within 60 days
thereafter.
Remanded for further proceedings consistent with this memorandum.
Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2014
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