Com. v. McLeod, S. ( 2017 )

J-S62021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
STEPHEN MCLEOD
Appellant No. 26 MDA 2017
Appeal from the Judgment of Sentence November 28, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-SA-0000160-2016
BEFORE: STABILE, J., MOULTON, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY MOULTON, J.: FILED OCTOBER 27, 2017
Stephen McLeod appeals from the November 28, 2016 judgment of
sentence entered in the Dauphin County Court of Common Pleas following his
bench-trial conviction for driving while operating privilege is suspended or
revoked, 75 Pa.C.S. § 1543(a). We remand for the trial court’s acceptance of
McLeod’s Pennsylvania Rule of Appellate Procedure 1925(b) statement and
preparation of a Rule 1925(a) opinion.
On July 25, 2016, a magisterial district judge found McLeod guilty of the
aforementioned offense. On August 24, 2016, McLeod filed a summary appeal
to the trial court. On November 28, 2016, following a de novo hearing, the
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* Retired Senior Judge assigned to the Superior Court.
J-S62021-17
trial court found McLeod guilty. On December 28, 2016, McLeod filed a notice
of appeal.
On January 13, 2017, the trial court ordered McLeod to file a Rule
1925(b) statement. This order was sent to McLeod’s counsel by certified mail,
return receipt requested. On February 8, 2017, the order was returned to the
trial court as undeliverable. On March 1, 2017, the trial court filed a statement
in lieu of memorandum opinion, requesting that this Court quash the appeal
because McLeod had failed to file a Rule 1925(b) statement.
On March 9, 2017, McLeod filed a motion to file a Rule 1925(b)
statement nunc pro tunc, to which McLeod attached a Rule 1925(b) statement.
On May 16, 2017, the trial court denied McLeod’s motion, finding that an
appeal nunc pro tunc was inappropriate because the circumstances that led
McLeod’s counsel to miss the deadline were not “unforeseeable or unavoidable
event[s].” Mem. Op. and Order, 5/16/17, at 5.
Both McLeod and the Commonwealth request that this Court remand
this matter for the filing of a Rule 1925(b) statement and accompanying Rule
1925(a) opinion because, under Rule 1925(c)(3), McLeod should be given the
opportunity to file a Rule 1925(b) statement nunc pro tunc.1 We agree.
Rule 1925(c)(3) provides:
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McLeod alternatively requests that the Court address the merits of his
1
issue. However, because the trial court has not provided, in writing, its
reasons for denying McLeod’s motion to suppress, we decline to address the
merits of the issue at this time.
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If any 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). Under these circumstances, “this Court is directed to
remand for the filing of a Rule 1925(b) statement nunc pro tunc and for the
preparation and filing of an opinion by the trial judge.” Commonwealth v.
Scott, 952 A.2d 1190, 1192 (Pa.Super. 2008).
Here, McLeod filed a notice of appeal, and the trial court ordered McLeod
to file a Rule 1925(b) statement. McLeod’s counsel, who may not have
received the order, failed to file such a statement and, despite McLeod filing a
motion requesting to file a Rule 1925(b) statement nunc pro tunc, to which
he attached a proposed Rule 1925(b) statement, the trial court did not address
the merits of McLeod’s issue on appeal. Accordingly, “we are constrained to
follow the dictates of Rule 1925(c)(3).” Scott, 952 A.2d at 852. We,
therefore, remand this matter and direct the trial court to accept nunc pro
tunc McLeod’s previously submitted Rule 1925(b) statement and to prepare
and file a Rule 1925(a) opinion no later than 21 days after the filing of that
statement.
Further, we give McLeod the option as to whether he would like to file a
new brief in response to the trial court’s Rule 1925(a) opinion. McLeod shall
notify the Prothonotary of this Court, in writing, within 7 days of being served
with the trial court’s opinion, whether he intends to file an additional brief. If
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so, the Prothonotary will set a briefing schedule. If not, we shall determine
the merits of McLeod’s issue on the briefs already submitted.
Case remanded with instructions. Jurisdiction retained.
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