Com. v. Gillums, K ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KIRK KAPEACE GILLUMS :
:
Appellant : No. 1601 EDA 2019
Appeal from the Judgment of Sentence Entered May 13, 2019
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001985-2019
BEFORE: SHOGAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED APRIL 13, 2020
Kirk Kapeace Gillums (Appellant) appeals pro se from the judgment of
sentence entered in the Bucks County Court of Common Pleas following his
entry of a negotiated nolo contendere plea. We conclude Appellant’s court-
appointed counsel was per se ineffective for failing to file a trial court-ordered
Pa.R.A.P. 1925(b) statement, which has resulted in the waiver of Appellant’s
issues on appeal. We thus remand to the trial court to appoint new counsel
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* Retired Senior Judge assigned to the Superior Court.
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or permit Appellant to proceed pro se following a Grazier1 hearing, and to
allow Appellant to file a Rule 1925(b) statement nunc pro tunc.
On May 13, 2019, Appellant entered a negotiated nolo contendere plea
to indecent assault,2 simple assault, and theft by unlawful taking.3 He was
represented by Bucks County Assistant Public Defender Bradley Bastedo, Esq.
The trial court immediately imposed an aggregate sentence of two to four
years’ imprisonment, to be followed by three years’ probation.4 The court also
ordered Appellant to comply with SORNA registration for a period of 15 years.5
N.T., Nolo Contendere Plea & Sentencing H’rg, 5/13/19, at 18. We note that
at the time of this hearing, Appellant was serving a sentence in Connecticut,
and would be remanded to the Connecticut prison. Id. at 20, 29.
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1See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (when waiver
of right to counsel is sought at appellate stage, on-the-record determination
should be made that waiver is knowing, intelligent, and voluntary).
2 18 Pa.C.S. § 3126(a)(1).
3 18 Pa.C.S. §§ 2701(a)(1), 3921(a).
4 The sentences were: (1) two consecutive terms of one to two years’
imprisonment, for indecent assault and simple assault; and (2) a consecutive
three years’ probation for theft by unlawful taking. The trial court also
imposed restitution in the amount of $2,264.12.
5 Pennsylvania Sex Offender Registration and Notification Act, 42 Pa.C.S.
§§ 9799.10 to 9799.42. See 42 Pa.C.S. §§ 9799.14(b)(6) (classifying
indecent assault as Tier I offense), 9799.15(a)(1) (requiring Tier I offender to
register for 15 years).
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We review in detail the ensuing procedural history. On May 28, 2019,
Appellant filed a pro se notice of appeal.6 The trial court properly entered the
notice of appeal on the docket and forwarded notice to Attorney Bastedo. See
Pa.R.Crim.P. 576(A)(4) (if represented criminal defendant submits for filing a
written notice that has not been signed by his attorney, clerk of courts shall
accept it for filing, and copy of time-stamped document shall be forwarded to
defendant’s attorney and Commonwealth within 10 days). On June 3, 2019,
the trial court directed Appellant to file, within 21 days, a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.
Meanwhile, on June 11, 2019, Appellant’s notice of appeal was docketed
in this Court. See Superior Ct. O.P. § 65.24 (pro se notice of appeal received
from trial court shall be docketed, even where appellant is represented by
counsel). On June 19th, Attorney Bastedo filed: (1) in the trial court, a timely
petition for an extension of time to file a Rule 1925(b) statement; and (2) in
this Court, a petition for extension of time to file a docketing statement (which
was due June 25th). In both petitions, counsel averred: Appellant was
remanded to his Connecticut prison; counsel mailed a letter to Appellant but
received no response; and counsel was unable to complete either a Rule
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6 Attorney Bastedo subsequently averred he was not aware Appellant would
file a pro se notice of appeal. Appellant’s Petition for Extension of Time to File
Docketing Statement, 6/19/19, at 1; Appellant’s Petition for Extension of Time
to Statement of Matters Complained of on Appeal, 6/19/19, at 1.
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1925(b) statement or a docketing statement because he could not yet discern
from Appellant the issues he wished to raise on appeal.
The trial court granted counsel’s request to extend the time for filing a
Rule 1925(b) petition. Order, 6/24/19 (extending deadline to July 24, 2019).
We note at this juncture, however, that no Rule 1925(b) statement was ever
filed. On August 2, 2019, the trial court issued an opinion, which did not
address Appellant’s claims, but suggested they be deemed waived for failure
to comply with the court’s Rule 1925(b) order. The trial docket reflects this
opinion was served on Attorney Bastedo.
On June 25, 2019 — the date Appellant’s docketing statement was
due — Attorney Bastedo filed a timely docketing statement, which again
averred he had not made contact with Appellant and thus did not know the
issues Appellant wished to pursue on appeal.7 On September 19th, Attorney
Bastedo filed an application for extension of time to file a brief, which this
Court granted the following day.
On September 23, 2019, Appellant filed an application in this Court to
proceed pro se. In response, this Court issued a per curiam order on October
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7 Subsequently, on July 2, 2019, this Court denied as moot Attorney Bastedo’s
application for extension to file a docketing statement, stating he had timely
filed one on June 25th. Additionally, on August 29th, this Court sent a Jette
letter to counsel, enclosing documents received from Appellant. See
Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (proper response
to any pro se pleading is to refer pleading to counsel, and to take no further
action on pro se pleading unless counsel forwards a motion).
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15th, directing the trial court to conduct a Grazier hearing and determine
whether Appellant’s waiver of counsel was knowing, intelligent, and voluntary.
The court filed a response on November 20th, explaining it had held a Grazier
hearing and that Appellant was to proceed pro se. The court also indicated
that it dismissed Attorney Bastedo as counsel.
Thereafter, Appellant filed a pro se brief, raising various issues for our
review,8 including a claim that Attorney Bastedo provided ineffective
assistance of counsel by failing to file a Rule 1925(b) statement as directed.
Appellant avers he did not receive any communication from Attorney Bastedo,
and that he was not aware the trial court had issued a Rule 1925(b) order nor
that Attorney Bastedo failed to comply with it.9 Appellant’s Brief at 2-3.
Appellant claims that because of Attorney Bastedo’s “negligence,” he should
be permitted, in the interest of justice, to proceed with an appeal. Id. at 4.
The Commonwealth acknowledges that the failure to file a Rule 1925(b)
statement, and consequent waiver of all claims, does not appear to have been
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8 Appellant avers: (1) his sentence was illegal because he was not given credit
for time served and his sentence exceeded the lawful maximum; (2) the trial
court abused its discretion in imposing sentence; (3) his sentences for
indecent assault and simple assault should have merged; (4) “the protected
activities encompassed by the [indecent assault] statute were not evinced by
the facts of the case;” (5) Attorney Bastedo did not advise him that he would
be subject to SORNA. Appellant’s Brief at 5-10, 13.
9 Appellant avers on appeal that on June 3, 2019 — the day the trial court
issued its Pa.R.A.P. 1925(b) order — he was transferred to the Connecticut
prison and did not receive notice of the order. Appellant’s Brief at 2.
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caused by any fault of Appellant. Commonwealth’s Brief at 7. Thus, it
requests a remand to the trial court to allow Appellant to file a Rule 1925(b)
statement nunc pro tunc. We agree.
Our Supreme Court has recently stated:
In Commonwealth v. Lord, . . . 719 A.2d 306 (Pa. 1998), . . .
our Court held that all appellants must file a Rule 1925(b)
statement, if ordered to do so by the trial court, enumerating all
issues they wish to have the appellate court consider, or those
issues will be deemed waived for appellate review.
Commonwealth v. Parrish, ___ A.3d ___, ___, 2020 WL 355016 at *8 (Pa.
Jan. 22, 2020). See also Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in
the Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”). Furthermore:
If an appellant represented by counsel in a criminal case was
ordered to file a Statement and failed to do so or filed an untimely
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 of a Statement nunc pro tunc, and the
preparation and filing of an opinion by the judge.
Pa.R.A.P. 1925(c)(3).
As stated above, Attorney Bastedo did not file a Rule 1925(b) statement,
as directed by the trial court. Furthermore, the trial court has not addressed
the merits of the claims Appellant wishes to present on appeal. While the
certified record and our docket indicate Attorney Bastedo apprised the courts
of his unsuccessful attempts to communicate with Appellant, we would
nevertheless be constrained to conclude, on the record before us, that
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Appellant’s issues were waived due to the lack of a court-ordered Rule 1925(b)
statement. See Pa.R.A.P. 1925(b)(4)(vii); Parrish, ___ A.3d ___, ___, 2020
WL 355016 at *8; Trial Ct. Op., 8/9/19, at 2. This complete foreclosure of
appellate review supports a finding of ineffectiveness per se, for which
Appellant is entitled to immediate relief.10 See Commonwealth v. Rosado,
150 A.3d 425, 433-34 (Pa. 2016) (errors which completely foreclose appellate
review amount to constructive denial of counsel and thus ineffective
assistance of counsel per se, whereas those which only partially foreclose such
review are subject to ordinary Strickland/Pierce11 framework).
That the trial court subsequently conducted — admittedly pursuant to
this Court’s October 15, 2019, per curiam order — a Grazier hearing and
concluded Appellant may proceed pro se is of no moment. Without addressing
Attorney Bastedo’s per se ineffective assistance in not filing a Rule 1925(b)
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10Appellant correctly points out that an illegal sentence claim can never be
waived. See Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super.
2013); Appellant’s Brief at 5. Nevertheless, in light of the record before us,
we decline to accept some issues for review and find other issues waived. In
the interest of justice, we remand for, inter alia, Appellant to file a Rule
1925(b) statement nunc pro tunc, which may include any proper issue he
wishes to pursue.
11 See Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth
v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (ineffective assistance of counsel
claim must establish: (1) underlying claim is of arguable merit; (2) counsel’s
action or inaction lacked reasonable strategic basis; and (3) but for counsel’s
conduct, there is reasonable probability that outcome of proceedings would
have been different).
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statement, we would be constrained to find Appellant’s issues waived. Thus,
we decline to quash this appeal, and instead conclude Appellant is entitled to
immediate relief. See Pa.R.A.P. 1925(c)(3); Parrish, ___ A.3d ___, ___,
2020 WL 355016 at *8.
In light of the foregoing, and in the interest of ensuring Appellant’s
constitutional rights to an appeal and to counsel12 are not abridged, we
remand this matter to the trial court to: (1) to conduct a new Grazier hearing
to determine whether Appellant wishes to proceed pro se; (2) appoint new
counsel to represent Appellant if Appellant so desires; and (3) allow Appellant,
whether proceeding pro se or with new counsel, to file a Rule 1925(b)
statement nunc pro tunc.
We direct our Prothonotary to forward a copy of this memorandum to
Attorney Bastedo, last associated with the Bucks County Public Defender’s
office.
Case remanded with instructions. Jurisdiction retained.
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12 See PA.CONST. Art. V, § 9 (“[T]here shall . . . be a right of appeal from a
court of record . . . to an appellate court[.]”); Rosado, 150 A.3d at 429 (“It
is axiomatic that the right to counsel includes the concomitant right to
effective assistance of counsel.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/20
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