Com. v. Wertz, R., Jr. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RAYMOND LEE WERTZ, JR.
Appellant No. 1504 MDA 2014
Appeal from the PCRA Order of September 8, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0002150-2013
BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.: FILED MAY 15, 2015
Raymond Lee Wertz, Jr., appeals the September 8, 2014 order that
dismissed Wertz’s petition for relief filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Because Wertz has not
preserved any issues for appeal, we affirm.
On October 10, 2013, the Commonwealth filed a criminal information
charging Wertz with over 100 total counts, including multiple charges each
of burglary, theft, receiving stolen property, criminal trespass, and
conspiracy.1 On November 1, 2013, Wertz pled guilty to sixteen counts,
including eleven counts of burglary, one count of conspiracy to commit
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1
18 Pa.C.S.A. §§ 3502(a)(2) and (4), 3921(a), 3925(a), 3503(a)(1)(i),
and 903 (3502(a)(2), 3502(a)(4), 3921(a), 3925(a)), respectively.
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burglary, three counts of theft by unlawful taking, and one count of
conspiracy to commit theft. The remaining counts were dismissed.
On November 1, 2013, the trial court sentenced Wertz to a negotiated
sentence of fourteen to forty months’ incarceration on six counts of burglary
with each sentence to run consecutively to each other. Wertz was sentenced
to six to twenty-four months’ incarceration on each remaining count of
burglary and one of the theft counts; and to twelve to twenty-four months’
incarceration each on two counts of theft, conspiracy to commit burglary,
and conspiracy to commit theft. Each of those sentences was ordered to run
concurrently with the first burglary sentence. Therefore, Wertz received an
aggregate sentence of seven to twenty years’ incarceration.2 Wertz did not
file a direct appeal.
On April 24, 2014, Wertz filed a timely PCRA petition, in which he
alleged that his counsel was ineffective. From the petition, it is unclear
whether Wertz was arguing that his counsel did not inform him that some of
his sentences were to run consecutively or that his counsel should have
struck a better bargain. On April 29, 2014, the PCRA court appointed
counsel.
On July 11, 2014, counsel filed a “no merit” letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
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2
Wertz also was required to pay restitution in the amount of
$11,610.18.
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v. Finley, 550 A.2d 213 (Pa. Super. 1988), in which counsel sought to
withdraw from representing Wertz. Counsel concluded that there were no
non-frivolous issues to be raised. On August 6, 2014, the PCRA court
granted counsel’s request to withdraw and issued notice to Wertz of the
court’s intent to dismiss his PCRA petition without a hearing pursuant to
Pa.R.Crim.P. 907. On September 8, 2014, the PCRA court dismissed Wertz’s
petition.
Prior to the actual dismissal of his petition, on September 3, 2014,
Wertz filed a notice of appeal with this Court. The notice was transmitted to
the clerk of courts of Berks County and filed there on September 8, 2014.3
On September 10, 2014, the PCRA court ordered Wertz to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Wertz never filed a concise statement. On November 5, 2014, the PCRA
court filed a statement in lieu of an opinion pursuant to Pa.R.A.P. 1925(a), in
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3
We recognize that Wertz filed his notice of appeal prematurely.
However, in similar cases we still have addressed a premature appeal when
“the subsequent actions [of the] court fully ripened it.” Commonwealth v.
Cooper, 27 A.3d 994, 1004 (Pa. 2011). See also Commonwealth v.
Little, 879 A.2d 293, 302 (Pa. Super. 2005) (permitting premature appeal
of petition for reconsideration when order denying petition was entered
between notice of appeal and consideration by appellate court);
Commonwealth v. Hamaker, 541 A.2d 1141, 1143 (Pa. Super. 1988)
(permitting a premature appeal of post-trial motions and citing Pa.R.A.P.
905 (“A notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.”)).
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which the court concluded that any and all issues that Wertz may pursue
were waived for failure to file a concise statement.
Rule 1925(b) requires an appellant to file a concise statement if
ordered to do so by the presiding judge. Any issues not preserved in the
concise statement are waived. Pa.R.A.P. 1925(b)(4)(viii). Regarding
waiver, we have said:
In 1998, our Supreme Court held that “in order to preserve their
claims for appellate review, Appellants must comply whenever
the trial court orders them to file a Statement of [Errors]
Complained of on Appeal pursuant to Rule 1925.”
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).
Subsequently, in Commonwealth v. Castillo, 888 A.2d 775
(Pa. 2005), the Supreme Court affirmed its holding in Lord,
ruling that a failure to file a 1925(b) statement within [the time
proscribed] after entry of an order requesting the statement,
regardless of the length of the delay, results in automatic
waiver.
The Supreme Court amended Rule 1925 in 2007. The current
version extends the 14–day filing period of the statement to a
minimum 21–day filing period and grants the judge, upon
application of the appellant and for good cause shown, authority
to enlarge the time period initially specified, or, in extraordinary
cases, to allow for filing of a statement nunc pro tunc.
Additionally, the Supreme Court added a new procedure under
Rule 1925(c) for appellate courts to remedy a criminal
appellant’s failure to file a Rule 1925(b) statement. Subsection
1925(c)(3) provides:
(3) 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). The official note to subsection (c)(3)
further states:
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Paragraph (c)(3) This paragraph allows an appellate court
to remand in criminal cases only when the appellant has
completely failed to respond to an order to file a
Statement[.] Prior to these amendments of this rule, the
appeal was quashed if no timely Statement was filed or
served; however, because the failure to file and serve a
timely Statement is a failure to perfect the appeal, it is
presumptively prejudicial and “clear” ineffectiveness[.] An
appellant must be able to identify per se ineffectiveness to
secure a remand under this section, and any appellant who
is able to demonstrate per se ineffectiveness is entitled to
a remand.
Note to Pa.R.A.P. 1925.
Paragraph (c)(3) of Rule 1925 codifies the procedure established
by this Court in Commonwealth v. West, 883 A.2d 654 (Pa.
Super. 2005). Note to Pa.R.A.P. 1925; see Commonwealth v.
Hill, 16 A.3d 484, 496 n. 15 (Pa. 2011). “Direct appeal rights
have typically been restored through a post-conviction relief
process, but when the ineffectiveness is apparent and per se, the
court in West recognized that the more effective way to resolve
such per se ineffectiveness is to remand for the filing of a
Statement and opinion.” Note to Pa.R.A.P. 1925; see West,
supra at 657.
Commonwealth v. Thompson, 39 A.3d 335, 338-39 (Pa. Super. 2012)
(citations modified, footnotes omitted).
Instantly, the PCRA court ordered Wertz to file a concise statement.
Wertz did not do so. Therefore, he has failed to preserve any issues.
Further, because Wertz was representing himself, he does not benefit from
the remand procedure outlined in Pa.R.A.P.1925(c)(3). As noted above,
Rule 1925(c)(3) is designed to rectify per se ineffective assistance of
counsel. Because Wertz does not have counsel, that rule has no applicability
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here. Therefore, we are constrained to find that his issues on appeal are
waived.4 See Lord, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2015
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4
Had we not found that Wertz’s issues were waived for failure to file a
concise statement, we would have found Wertz’s issues waived for failure to
comply with briefing requirements. Wertz’s brief does not contain a
statement of jurisdiction, Pa.R.A.P. 2114; a statement of questions involved,
Pa.R.A.P. 2116; a statement of the case, Pa.R.A.P. 2117; or a summary of
argument, Pa.R.A.P. 2118. Most importantly, Wertz does not cite to any
relevant legal authority nor develop a legal argument which results in
waiver. See Pa.R.A.P. 2119(a); Commonwealth v. Johnson, 985 A.2d
915, 924 (Pa. 2009).
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