Com. v. Freeman, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARDEA SHAREE FREEMAN
Appellant No. 2584 EDA 2014
Appeal from the Judgment of Sentence August 5, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007735-2013
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JULY 23, 2015
Appellant, Mardea Sharee Freeman, appeals from the August 5, 2014
judgment of sentence of six months’ probation, imposed after the trial court
found her guilty of one count of criminal conspiracy.1 After careful review,
we remand this case pursuant to Pennsylvania Rule of Appellate Procedure
1925(c)(3).
We summarize the relevant procedural history of this case as follows.
On December 18, 2013, the Commonwealth filed an information charging
Appellant with the aforementioned offense, as well as one count of theft by
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 903.
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deception.2 On March 17, 2014, Appellant was admitted into the Bucks
County Accelerated Rehabilitative Disposition (ARD) program for 12 months.
After an arrest on new criminal charges, however, Appellant’s participation in
the ARD program was revoked on August 5, 2014. Immediately thereafter,
Appellant, while represented by retained counsel, proceeded to a bench trial
on the aforementioned charges. At the conclusion of the trial, the trial court
found Appellant guilty of criminal conspiracy, but not guilty of theft by
deception. That same day, the trial court sentenced Appellant to six months’
probation.
On August 27, 2014, Appellant timely filed a notice of appeal
accompanied by a letter from her trial counsel stating as follows. “Please
note that I have not been retained to represent [Appellant] on appeal. We
are assisting [Appellant] in filing the enclosed [n]otice of [a]ppeal so as to
preserve her rights.” Letter dated 8/25/14 from trial counsel (emphasis in
original). On September 15, 2014, the trial court entered an order, directing
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) within 21
days. Trial Court Order, 9/15/14, at 1. The trial court served notice of this
order on Appellant’s trial counsel, who remained counsel of record.
____________________________________________
2
18 Pa.C.S.A. § 3922(a)(1).
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On October 17, 2014, the trial court issued its 1925(a) opinion, finding
Appellant had waived her appeal based on her failure to file a Rule 1925(b)
statement and suggesting that we quash this appeal. Trial Court Opinion,
10/17/14, at 3-4. Also on that date, Appellant’s trial counsel filed with this
Court a motion to withdraw as counsel. On November 5, 2014, this Court
per curiam granted counsel’s motion to withdraw and directed the trial court
to determine Appellant’s eligibility for court appointed counsel within 60
days. Consequently, on November 26, 2014, the trial court held a hearing
and appointed counsel to Appellant for this appeal.
Ordinarily, the failure to file a court-ordered 1925(b) statement results
in a waiver of all issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii);
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (explaining Rule
1925(b) is a bright-line rule). However, “[t]he complete failure to file the
[Rule] 1925 concise statement is per se ineffectiveness because it is without
reasonable basis designed to effectuate the client’s interest and waives all
issues on appeal.” Commonwealth v. Thompson, 39 A.3d 335, 339 (Pa.
Super. 2012), quoting Commonwealth v. Burton, 973 A.2d 428, 432 (Pa.
Super. 2009) (en banc); see also Commonwealth v. Scott, 952 A.2d
1190, 1192 (Pa. Super. 2008). In such circumstances, Rule 1925(c)(3)
directs us to remand for the filing of a Rule 1925(b) statement nunc pro tunc
and for the preparation of an opinion by the trial court. Pa.R.A.P.
1925(c)(3).
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As noted, on September 15, 2014, the trial court ordered Appellant to
file her Rule 1925(b) statement within 21 days, i.e., on or before October 6,
2014. At that time, Appellant was still represented by trial counsel. See
Pa.R.Crim.P. 120(B)(1) (providing counsel may only withdraw his or her
appearance by leave of court); Commonwealth v. Librizzi, 810 A.2d 692,
693 (Pa. Super. 2002) (noting that “once an appearance is entered, the
attorney is responsible to diligently and competently represent the client
until his or her appearance is withdrawn[]”) (citations omitted). Trial
counsel remained Appellant’s counsel of record until this Court granted his
motion to withdraw on November 5, 2014. Trial counsel never complied
with the trial court’s order to file a Rule 1925(b) statement, which we
conclude is per se ineffectiveness. See Thompson, supra. Therefore, we
remand in accordance with Rule 1925(c)(3).
Based on the foregoing, we remand this matter for the filing of a
1925(b) statement nunc pro tunc with the trial court within 30 days of this
memorandum and for the preparation of an opinion by the trial court 30
days thereafter. See Pa.R.A.P. 1925(c)(3); Scott, supra.Case remanded. Jurisdiction retained.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/2015
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