Com. v. Cromwell, A. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
v. :
:
ANDRE LEMONT CROMWELL, : No. 481 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, February 7, 2014,1
in the Court of Common Pleas of Washington County
Criminal Division at No. CP-63-CR-0001535-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 13, 2015
Andre Lamont Cromwell appeals from the judgment of sentence. For
the following reasons, we remand.
On February 7, 2014, appellant entered a guilty plea to one count each
of robbery, 18 Pa.C.S.A. § 3701(a)(1)(ii), and recklessly endangering
another person, 18 Pa.C.S.A. § 2705. Immediately thereafter, he was
sentenced to five to ten years’ imprisonment. On February 18, 2014,2
1
We note that appellant’s notice of appeal purports to appeal from the
February 24, 2014 order denying his post-sentence motion. However, a
direct appeal in a criminal case can only lie from the judgment of sentence.
Commonwealth v. Kuykendall, 2 A.3d 559, 560 n.1 (Pa.Super. 2010)
(citation omitted). We have therefore amended the caption accordingly.
2
As February 17, 2014, fell on President’s Day, appellant had until the
following day to timely file this motion. See 1 Pa.C.S.A. § 1908 (excluding
weekends and holidays from the computation of time).
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appellant filed a motion for leave to withdraw his guilty plea. (Docket #25.)
A hearing was held on February 24, 2014; and on March 4, 2014, the trial
court denied appellant’s motion as well as counsel’s oral motion to withdraw.
(Docket #31.) On March 17, 2014, appellant filed a pro se petition
requesting that new counsel be appointed. (Docket #32.)
On March 26, 2014, counsel filed a timely notice of appeal on
appellant’s behalf. On July 11, 2014, the trial court granted counsel leave to
withdraw and John K. Puskar, Esq., was appointed. The court also directed
appellant to file a concise statement of errors complained of on appeal within
21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. (Docket #37.)
Appellant’s counsel did not comply.3 On December 10, 2014, the trial court
filed an opinion, which highlighted appellant’s failure to file a
Pa.R.A.P. 1925(b) statement and indicated that all issues have been waived
for purposes of appeal.
In Commonwealth v. Lord, 719 A.2d 306, 209 (Pa. 198), our
supreme court held that if an appellant is directed to file a concise statement
pursuant to Pa.R.A.P. 1925(b), any issues not raised in that statement are
waived. In Commonwealth v. Butler, 812, A.2d 631 (Pa. 2002), the court
3
We note that throughout the proceedings appellant filed various pro se
motions. Notably, on October 14, 2014, appellant filed a pro se
Rule 1925(b) statement and on October 24, 2014, an amended pro se
Rule 1925(b) statement. (Docket #39.) However, no defendant has a right
to hybrid representation, either at trial or on appeal. Commonwealth v.
Ali, 10 A.3d 282, 293 (Pa. 2010).
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expanded upon Lord, holding that waiver automatically applies when a
Pa.R.A.P. 1925(b) statement is not filed or if an issue is not included in the
concise statement, even when the question of waiver has not been raised by
the other party and when the trial court has chosen to overlook the failure
and address the issues it assumed would be raised. However, our supreme
court subsequently amended Pa.R.A.P. 1925 to include a procedure for
appellant courts to follow when counsel fails to file a Pa.R.A.P. 1925(b)
statement. Rule 1925(c)(3) states:
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).
Our review of this matter indicates that the failure to file the
Pa.R.A.P. 1925(b) statement was per se ineffective assistance of counsel.
Therefore, we remand this matter for the filing of a nunc pro tunc
Pa.R.A.P. 1925(b) statement as well as the filing of an opinion by the trial
court.
Accordingly, the Superior Court Prothonotary is directed to return the
record to the trial court upon the filing of this Memorandum. Appellant’s
counsel shall file a Pa.R.A.P. 1925(b) statement within 21 days of the lower
court’s receipt of the record. The trial court shall have 30 days thereafter to
prepare and file its Pa.R.A.P. 1925(a) opinion. Upon the filing of the trial
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court opinion, the record is to be returned to the Superior Court
Prothonotary within 30 days. The Superior Court Prothonotary is directed to
then issue a new briefing schedule.
Matter remanded for action consistent with this decision. Jurisdiction
retained.
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