Com. v. Holmes, Z. ( 2019 )

J-S67024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZAKI JAMAR HOLMES :
:
Appellant : No. 822 MDA 2019
Appeal from the Judgment of Sentence Entered March 1, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000131-2017
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY DUBOW, J.: FILED: DECEMBER 26, 2019
Appellant, Zaki Jamar Holmes, appeals from the March 1, 2018
Judgment of Sentence entered in the York County Court of Common Pleas
following his conviction of one count each of Robbery, Person Not to Possess
a Firearm, Terroristic Threats, Simple Assault – Physical Menace, and Theft by
Unlawful Taking.1 After careful review, we remand for further proceedings.
The relevant facts and procedural history are, briefly, as follows. On
January 3, 2018, a jury convicted Appellant of the above crimes. The court
deferred sentencing pending a pre-sentence investigation (“PSI”) report.
Following consideration of the PSI Report and argument of counsel, the
court sentenced Appellant to a standard range sentence of eight to sixteen
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 3701(a)(1)(iii), 6105(a)(1), 2706(a)(1), 2701(a)(3) and
3921(a), respectively.
J-S67024-19
years’ incarceration. Appellant filed a Post-Sentence Motion, which the court
denied.
Appellant timely appealed. However, his appeal was ultimately quashed
because of his failure to comply with Pa.R.A.P. 3517. Appellant then filed a
Petition for Post-Conviction Collateral Relief, and on April 22, 2019, the trial
court reinstated his appeal rights nunc pro tunc.
Appellant filed a Notice of Appeal on May 17, 2019. On May 21, 2019,
the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) Statement within
21 days. Appellant did not file a Rule 1925(b) Statement.
On June 27, 2019, the court filed a Pa.R.A.P. 1925(a) Opinion. In its
Opinion, the court indicated that Appellant failed to file a Pa.R.A.P. 1925(b)
Statement and requested that this Court find Appellant’s counsel ineffective
per se and remand the appeal. Trial Ct. Op., dated 6/27/19, at 4. We agree.
Pennsylvania Rule of Appellate Procedure 1925(c)(3) provides:
If an appellant in a criminal case was ordered to file a [Rule
1925(b)] 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). In Commonwealth v. Scott, 952 A.2d 1190 (Pa.
Super. 2008), this Court held that where the “[a]ppellant has completely failed
to file a Rule 1925(b) statement as directed . . . counsel has been per se
ineffective.” Id. at 1192. In Scott, this court remanded for preparation of a
-2-
J-S67024-19
Rule 1925(b) Statement and a Rule 1925(a) Opinion because the trial court
had not prepared a Rule 1925(a) Opinion. Id.Here, Appellant’s counsel disregarded the trial court’s Order directing
him to file a concise statement pursuant to Pa.R.A.P. 1925, and, therefore,
rendered per se ineffective assistance of counsel. The trial court’s Rule
1925(a) Opinion does not address the issue that Appellant seeks to raise on
appeal because counsel failed to alert the trial court to the errors complained
of on appeal.
Therefore, we are constrained to remand to the trial court for counsel
to file a Rule 1925(b) Statement nunc pro tunc within 30 days of this Order
and for the trial court to file a responsive Rule 1925(a) Opinion within 45 days
thereafter. The Prothonotary of this Court shall thereafter set a briefing
schedule for the filing of supplemental briefs.
Case remanded. Jurisdiction retained.
-3-