Com. v. Oakman, H. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
HOLLY OAKMAN,
Appellant No. 1246 EDA 2014
Appeal from the Judgment of Sentence March 21, 2014
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0002490-2012
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 13, 2015
Appellant, Holly Oakman, appeals pro se from the judgment of
sentence imposed after a Gagnon1 hearing for a probation violation,
following a negotiated guilty plea to resisting arrest and harassment2 related
to an April 10, 2012 disturbance she caused in a Radio Shack store in Upper
Darby, Delaware County. We dismiss.
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*
Retired Senior Judge assigned to the Superior Court.
1
See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (probationer is
entitled to a “preliminary hearing . . . to determine whether there is
probable cause to believe that [she] has committed a violation of [her]
[probation (Gagnon I)], and the other a somewhat more comprehensive
hearing prior to the making of the final revocation decision [(Gagnon
II)].”).
2
18 Pa.C.S.A. §§ 5104 and 2709(a)(4), respectively.
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We take the following facts and procedural history from the trial
court’s July 7, 2014 opinion and our independent review of the record. On
June 19, 2012, Appellant, while represented by court appointed counsel,
entered a negotiated guilty plea. The same day, after accepting the plea
agreement, the court sentenced Appellant to an aggregate term of not less
than time served nor more than twenty-three months’ incarceration,
followed by one year of probation, and ordered her to stay away from the
Upper Darby Radio Shack. Appellant was immediately paroled.
Court appointed counsel filed a motion to withdraw the guilty plea and
to change counsel on June 28, 2012. On August 2, 2012, counsel withdrew
the motion. Appellant did not file a direct appeal.
On June 3, 2013, Appellant’s privately retained counsel 3 filed a petition
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546, claiming she was innocent of all charges and ineffectiveness of court
appointed counsel for failing to pursue the June 28, 2012 motion to
withdraw the guilty plea.
The court, at the request of the probation officer, issued a bench
warrant for Appellant on March 14, 2014 and scheduled a Gagnon II
hearing.
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3
Counsel entered his appearance on December 31, 2013.
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On March 21, 2014, the court held hearings on both the PCRA petition 4
and Gagnon II. The probation officer testified that Appellant failed to meet
with her, maintain a current address, and complete mental health treatment
and anger management. (See N.T. Gagnon II Hearing, 3/21/14, at 81-
84). The same day, the court sentenced Appellant to full back time of 620
days with immediate parole, address to be verified prior to release, one year
probation consecutive to parole, and mental health treatment.
Appellant timely appealed on April 15, 2014. On April 16, 2014, the
trial court entered an order directing Appellant to file a Rule 1925(b)
statement within twenty-one days, by May 7, 2014. See Pa.R.A.P. 1925(b).
The order advised that “[a]ny issue not properly included in this statement
timely filed and served pursuant to [Pa.R.A.P.] 1925(b) shall be deemed
waived.” (Concise Statement Order, 4/16/14, at 1). Appellant failed to file
her statement timely, instead, filing it twenty-nine days late on June 5,
2014. The trial court entered its Rule 1925(a) opinion on July 7, 2014. See
Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
1. Did [Appellant] ask Attorney Daniel to withdraw her
[guilty] plea?
2. Did Attorney Daniel[] ignore [Appellant’s] request by
withdrawing [her] motion to withdraw her guilty plea without her
assent?
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4
The court denied her PCRA petition on April 22, 2014.
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3. Does the [c]ourt apply the Pierce5 “no prejudice”
standard, or does the [c]ourt mandate that [Appellant]
demonstrate prejudice?
4. Does [Appellant] demonstrate prejudice when she shows
that her right to appeal was, in essence, quashed by counsel’s
unilateral decision to withdraw [her] [m]otion to [w]ithdraw
[p]lea?
(Appellant’s Brief, at unnumbered page 6).6
Before we may address the merits of Appellant’s issues, we must
determine whether she properly preserved them for our review. Rule
1925(b) provides, in relevant part:
(b) Direction to file statement of errors complained of on
appeal; instructions to the appellant and the trial court.—
If the judge entering the order giving rise to the notice of appeal
(“judge”) desires clarification of the errors complained of on
appeal, the judge may enter an order directing the appellant to
file of record in the trial court and serve on the judge a concise
statement of the errors complained of on appeal (“Statement”).
* * *
(2) Time for filing and service.—The judge shall allow the
appellant at least 21 days from the date of the order’s entry on
the docket for the filing and service of the Statement. Upon
application of the appellant and for good cause shown, the judge
may enlarge the time period initially specified or permit an
amended or supplemental Statement to be filed. . . . In
extraordinary circumstances, the judge may allow for the filing
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5
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
6
We note that Appellant filed an identical brief in her appeal of the denial of
her first PCRA petition. The issues raised in her brief relate to the PCRA
appeal and not to the instant appeal.
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of a Statement or amended or supplemental Statement nunc pro
tunc.
(3) Contents of order.—The judge’s order directing the
filing and service of a Statement shall specify:
(i) the number of days after the date of entry of the
judge’s order within which the appellant must file
and serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the judge
pursuant to paragraph (b)(1);
(iv) that any issue not properly included in the
Statement timely filed and served pursuant to
subdivision (b) shall be deemed waived.
4) Requirements; waiver.
* * *
(vii) Issues not included in the Statement
and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.
Pa.R.A.P. 1925(b)(2), (3), (4)(vii).
An en banc panel of this Court has held:
Our Supreme Court intended the holding in
[Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)] to operate
as a bright-line rule, such that “failure to comply with the
minimal requirements of Pa.R.A.P. 1925(b) will result in
automatic waiver of the issues raised.” Commonwealth v.
Schofield, . . . 888 A.2d 771, 774 ([Pa.] 2005) (emphasis
added); see also [Commonwealth v.] Castillo, 888 A.2d
[775, 780 (Pa. 2005)]. Given the automatic nature of this type
of waiver, we are required to address the issue once it comes to
our attention. Indeed, our Supreme Court does not countenance
anything less than stringent application of waiver pursuant to
Rule 1925(b): “[A] bright-line rule eliminates the potential for
inconsistent results that existed prior to Lord, when . . .
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appellate courts had discretion to address or to waive issues
raised in non-compliant Pa.R.A.P. 1925(b) statements.” Id.Succinctly put, it is no longer within this Court’s discretion to
ignore the internal deficiencies of Rule 1925(b) statements.
* * *
Stated simply, it is no longer within this Court’s discretion
to review the merits of an untimely Rule 1925(b) statement
based solely on the trial court’s decision to address the merits of
those untimely raised issues. Under current precedent, even if a
trial court ignores the untimeliness of a Rule 1925(b) statement
and addresses the merits, those claims still must be considered
waived: Whenever a trial court orders an appellant to file a
concise statement of [errors] complained of on appeal pursuant
to Rule 1925(b) the appellant must comply in a timely manner.
Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d
222, 224-25 (Pa. Super. 2014) (en banc) (emphases in original) (some
citations and quotation marks omitted).
Here, the record reflects that on April 16, 2014, the trial court issued
an order in technical compliance with Rule 1925(b) requiring Appellant to file
a statement “no later than twenty[-]one (21) days after the date of this
[o]rder.” (Concise Statement Order, 4/16/14, at 1). The order provided
that “[a]ny issue not properly included in this statement timely filed and
served pursuant to [Pa.R.A.P.] 1925(b) shall be deemed waived.” (Id.).
Appellant filed her untimely concise statement twenty-nine days late on June
5, 2014.
Based on this record, because Appellant did not timely file her Rule
1925(b) statement, we conclude that she failed to comply with the minimal
requirements of Rule 1925(b). Consequently, she has waived all of her
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issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii); see also Greater Erie
Indus. Dev. Corp., supra at 224-25. Accordingly, we may not address the
merits of those claims. See Greater Erie Indus. Dev. Corp., supra at
227.7
Appeal dismissed.
Judge Lazarus joins the Memorandum.
Judge Olson concurs in the result.
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7
We note that our “Rules of Appellate Procedure provide for limited
instances in which appellate courts may remand [criminal] cases to trial
courts in order to cure defects in Rule 1925 practice.” Greater Erie Indus.
Dev. Corp., supra at 227 n.7. Here, none of the circumstances are
applicable. See Pa.R.A.P. 1925(c).
Moreover, the record reflects that Appellant has failed to file a brief
addressing her issues. See Pa.R.A.P. 2101 (authorizing quashal or dismissal
where substantial briefing defects); Commonwealth v. Greenwalt, 796
A.2d 996, 997 (Pa. Super. 2002) (no meaningful review possible where
substantial defects in pro se brief even when trial court files opinion
addressing appellant’s issues).
Furthermore, Appellant’s issues lack merit. The trial court explained
that “[Appellant] seems to suggest that [her parole] violations were not her
fault and she did not intentionally violate the terms of her parole. . . . [Her]
argument that she is not in violation of her parole is meritless.” (Trial Court
Opinion, 7/07/14, at 2-3). Upon review, we agree and conclude that the
record supports the court’s decision to revoke Appellant’s parole. See
Commonwealth v. Shimonvich, 858 A.2d 132, 135 (Pa. Super. 2004)
(parole revocation appropriate where appellant violated terms even when
trial court recognized her efforts to change her life).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2015
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