Com. v. Pearce, J., III ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOHN CARL PEARCE III, :
:
Appellant : No. 773 MDA 2016
Appeal from the Judgment of Sentence April 11, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002268-2013
BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.
JUDGMENT ORDER BY DUBOW, J.: FILED MARCH 13, 2017
Appellant, John Carl Pearce III, appeals from the April 11, 2016
Judgment of Sentence entered in the Luzerne County Court of Common
Pleas following Appellant’s open guilty plea to one count of Carrying a
Firearm Without a License.1 After review, we are constrained to remand for
further proceedings.
A recitation of the facts is unnecessary to our disposition. On August
10, 2015, Appellant pled guilty to one count of Carrying a Firearm Without a
License. There was no agreement as to sentencing. On April 11, 2016, the
trial court sentenced Appellant to serve a sentence of 24 to 48 months of
incarceration. Although Appellant did not file a Motion to Modify Sentence,
1
18 Pa.C.S. § 6106(a)(1).
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he did challenge the calculation of his prior record score at the April 11,
2016 Sentencing Hearing.
Appellant timely filed a counseled Notice of Appeal on May 9, 2016.
On May 10, 2016, the trial court entered an Order on the docket directing
Appellant to file a Concise Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b) within twenty-one days. Accordingly,
Appellant’s Rule 1925(b) Statement was due on or before May 31, 2016.
The trial court’s Order notified Appellant that “[a]ny issue not properly
included in this Statement [of Errors] timely filed and served pursuant to
Pa.R.A.P. 1925(b) shall be deemed waived.” Trial Court Order, dated
5/10/16.
On July 11, 2016, the trial court filed a Rule 1925(a) Opinion in which
the court noted that, as of that date, Appellant had not filed a Rule 1925(b)
Statement as ordered and had not requested an extension of time in which
to do so. The trial court opined, therefore, that Appellant had waived his
issues on appeal.
On July 14, 2016, Appellant filed a Nunc Pro Tunc Petition for
Permission to File a Concise Statement of Errors Complained of on Appeal,
which the trial court denied on July 18, 2016. On July 20, 2016, Appellant
filed a Motion for Reconsideration, which the trial court also denied.
Appellant’s counsel nonetheless filed a Brief on October 31, 2016,
challenging the discretionary aspects of his sentence. As of this writing,
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Appellant has not filed a Rule 1925(b) Statement and the trial court did not
filed a Rule 1925(a) Opinion responsive to the issue raised in Appellant’s
Brief to this Court.
Rule 1925(c)(3) provides that, if an appellant in a criminal case is
ordered to file a Rule 1925(b) Statement, but fails to do so such that the
appellate court is convinced that counsel has been per se ineffective, this
Court “shall remand for the filing of a Statement nunc pro tunc and for the
preparation and filing of an opinion by the judge.” See Pa.R.A.P.
1925(c)(3).
In the instant case, Appellant’s counsel wholly failed to file the court-
ordered Rule 1925(b) Statement and does not offer any explanation in
Appellant’s Brief for this failure. Counsel’s failure to comply with the trial
court’s May 10, 2016 Order constitutes per se ineffective assistance of
counsel. See id.; see also Commonwealth v. Scott, 952 A.2d 1190,
1192-93 (Pa. Super. 2008).
Accordingly, we remand this case with instructions for Appellant to file
a Rule 1925(b) Statement within 15 days of this Order and the trial court to
file a responsive Rule 1925(a) Opinion within 30 days of the filing of
Appellant’s 1925(b) Statement.
Case remanded with instructions. Jurisdiction retained.
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