Com. v. Hosler, H. ( 2023 )

J-S26026-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HARRY EDWARD HOSLER :
:
Appellant : No. 99 MDA 2022
Appeal from the Judgment of Sentence Entered December 13, 2021
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0002137-2016
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: JANUARY 6, 2023
Harry Edward Hosler (Appellant) appeals pro se from the judgment of
sentence entered in the Schuylkill County Court of Common Pleas, following
the revocation of his probation pursuant to a 2020 guilty plea to criminal
trespass.1 After careful review, we remand this case pursuant to Pennsylvania
Rule of Appellate Procedure 1925(c)(3).
We summarize the relevant factual and procedural history as follows.
On June 30, 2020, Appellant pleaded guilty to one count of criminal trespass.
On July 12, 2021, while Appellant was serving an 18 month term of probation
related to the above guilty plea, Pottsville Police Department Detective Joseph
Krammes obtained a search warrant for a home on East Market Street in
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 3503(a)(1)(ii).
J-S26026-22
Pottsville, Pennsylvania in relation to a burglary. See N.T. Revocation,
12/13/21, at 3-4. Appellant listed this home as his address with the office of
probation. Id. at 12; County of Schuylkill Adult Probation/Parole Department
Conditions Governing Probation, 7/14/2020, at 1 (unpaginated). While
searching the home, Detective Krammes located a digital scale, sandwich
bags, and methamphetamines in a room Appellant shared with his former
girlfriend. N.T. at 4-5. Detective Krammes arrested both Appellant and his
former girlfriend. Id. at 5.
Appellant was charged with possession with intent to distribute (PWID),
possession of a controlled substance, and possession of drug paraphernalia.2
Due to these charges, the Office of Probation/Parole filed a motion to revoke
Appellant’s probation. See Motion to Revoke Probation, 12/3/21.
On December 13, 2021, the trial court held a revocation hearing where
the Commonwealth presented, inter alia, the above testimony of Detective
Krammes. Appellant also testified at the proceeding. N.T. at 12, 14. The
trial court revoked Appellant’s probation3 and resentenced him to a term of
12 to 24 months’ incarceration.
Appellant then filed a timely counseled notice of appeal. On January 13,
2022, the trial court ordered Appellant to file a statement of errors complained
____________________________________________
2 35 P.S. §§ 780-113(a)(32), (a)(30), (a)(16), respectively.
3 During the hearing, the court also revoked Appellant’s parole regarding an
unrelated matter that is listed at Docket No. CP-54-CR-0000852-2020. That
case is not subject to this appeal.
-2-
J-S26026-22
of on appeal pursuant to Pa.R.A.P. 1925(b) within 25 days — February 7th.
The trial court served notice of this order on Appellant’s revocation counsel,
who remained counsel of record. Notably, Appellant’s counsel did not file a
Rule 1925(b) statement. Instead, on February 1, 2022, six days before the
concise statement was due, counsel filed a petition to withdraw with this
Court.4 After remanding the matter to the trial court for a Grazier5 hearing,
it granted counsel’s petition on February 14, 2022. See Trial Court’s Response
to Superior Court Order of Feb. 3, 2022, 2/14/22.6
Meanwhile, Appellant filed a litany of pro se motions in the trial court,
which were stayed pending this Court’s disposition on appeal. See Appellant’s
Pro Se Motion for “Habious Corpes [sic] (Suppression of Evidence),” 1/18/22;
Appellant’s Pro Se Motion for “Sentence Modification,” 1/21/22; Appellant’s
Pro Se “Motion to Dismiss,” 1/27/22; Appellant’s Pro Se Motion for
“Suppression of Evidence,” 1/28/22; Appellant’s Pro Se “Motion to Dismiss,”
____________________________________________
4 Relatedly, counsel did not file a Pa.R.A.P. 1925(c)(4) statement of intent to
withdraw in lieu of a concise statement. See Pa.R.A.P. 1925(c)(4) (where
counsel intends to withdraw from representation, they shall file a statement
of intent to withdraw in lieu of a Rule 1925(b) statement, allowing any
arguably meritorious claims to withstand waiver).
5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (requiring on the
record inquiry to determine whether waiver of counsel is knowing, intelligent,
and voluntary).
6 From the record before us, it does not appear that Appellant was re-notified
that he needed to file a timely pro se Rule 1925(b) statement, nor was he
informed he risked waiver for not filing any statement at all.
-3-
J-S26026-22
1/28/22; Appellant’s Pro Se Motion for “Grounds for Mistrial,” 1/28/22;
Appellant’s Pro Se Motion for “Modification of Sentence,” 1/28/22; Appellant’s
Pro Se “Motion to Compell,” 3/9/22; Appellant’s Pro Se “Motion of Relief,”
3/9/22; Appellant’s “Motion of Relief,” 5/4/22; see also Order, 4/14/22
(staying Appellant’s pro se motions pending this Court’s disposition on
Appellant’s appeal).
On March 16, 2022, the trial court issued its Pa.R.A.P. 1925(a) opinion,
finding Appellant waived all issues on appeal because he did not file a concise
statement, and therefore, it was “not in a position to address whatever issues
Appellant . . . may be raising on appeal.” Trial Ct. Op. 3/16/22, at 2
(unpaginated). Further, it submitted that should Appellant file a Rule 1925(b)
statement, it would be deemed untimely and waived. Id. We disagree.
Generally, the failure to file a court-ordered 1925(b) statement results
in a waiver of all issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii);
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (explaining Rule
1925(b) is a bright-line rule and any claims not raised in the statement will be
waived). However, we note the following exception to the general rule: “The
complete failure to file the [Rule] 1925 concise statement [by counsel] is per
se ineffectiveness because it is without reasonable basis designed to
effectuate the client’s interest and waives all issues on appeal.”
Commonwealth v. Thompson, 39 A.3d 335, 339 (Pa. Super. 2012) (citation
omitted). Where counsel is ineffective for failing to file a concise statement,
-4-
J-S26026-22
Pa.R.A.P. 1925(c)(3) directs that this Court may provide the following
remedy:
If an appellant represented by counsel in a criminal case was
ordered to file and serve a Statement and either failed to do so,
or untimely filed or served a Statement, such that the appellate
court is convinced that counsel has been per se ineffective, and
the trial court did not file an opinion, the appellate court may
remand for appointment of new counsel, the filing or service of a
Statement nunc pro tunc, and the preparation and filing of an
opinion by the judge.
Pa.R.A.P. 1925(c)(3).7
Here, on January 13, 2022, the trial court ordered Appellant to file a
Rule 1925(b) statement within 25 days — February 7th. At that time,
Appellant was still represented by revocation counsel. Though Appellant’s
attorney filed his petition to withdraw on February 1st — before the deadline
for filing a concise statement — he remained Appellant’s counsel of record
____________________________________________
7 The note to Rule 1925(c)(3) further explains:
This subparagraph allows an appellate court to remand in criminal
cases only when an appellant, who is represented by counsel, has
completely failed to respond to an order to file and serve a
Statement or has failed to do so timely. It is thus narrower than
subparagraph (c)(2). See, e.g., Commonwealth v. Burton,
973 A.2d 428, 431 (Pa. Super. 2009); Commonwealth v.
Halley, 870 A.2d 795, 801 (Pa. 2005); Commonwealth v.
West, 883 A.2d 654, 657 (Pa. Super. 2005). Per se
ineffectiveness applies in all circumstances in which an appeal is
completely foreclosed by counsel’s actions, but not in
circumstances in which the actions narrow or serve to foreclose
the appeal in part. Commonwealth v. Rosado, 150 A.3d 425,
433-35 (Pa. 2016).
Pa.R.A.P. 1925(c)(3), note.
-5-
J-S26026-22
until the trial court granted his petition on February 14, 2022, which was after
the deadline for filing a concise statement. See Pa.R.Crim.P. 120(B)(1)
(providing counsel may only withdraw his or her appearance by leave of
court); Commonwealth v. Librizzi, 810 A.2d 692, 693 (Pa. Super. 2002)
(stating that once counsel enters his appearance, he must “diligently and
competently represent the client until his or her appearance is withdrawn” and
counsel may not withdraw his representation until granted leave by the court)
(citation omitted).
Revocation counsel never complied with the trial court’s order to file a
Rule 1925(b) statement before the trial court granted his petition to withdraw,
and did not even file a Rule 1925(c)(4) statement. As mentioned above, the
trial court determined that Appellant had waived any type of claim on appeal
based on the failure to file a concise statement. Trial Ct. Op. at 1-2. As such,
counsel’s action, or lack thereof, completely foreclosed Appellant’s appeal.
See Pa.R.A.P. 1925(c)(3), note. Counsel effectively abandoned Appellant,
which we conclude amounts to per se ineffectiveness. See Pa.R.A.P.
1925(c)(3); Commonwealth v. West, 883 A.2d 654, 657-58 (Pa. Super.
2005) (where counsel failed to file a substantive concise statement, they have
effectively abandoned their client). Therefore, in accordance with Rule
1925(c)(3), we remand this appeal for the filing of a Rule 1925(b) statement
nunc pro tunc with the trial court within 30 days of this memorandum and for
the preparation of an opinion by the trial court 30 days thereafter. See
Pa.R.A.P. 1925(c)(3); Thompson, 39 A.3d at 339.
-6-
J-S26026-22
Case remanded for further proceedings consistent with this
memorandum. Jurisdiction retained.
-7-