Com. v. McCain, N. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NATHANIEL BRICE MCCAIN :
:
Appellant : No. 188 MDA 2023
Appeal from the PCRA Order Entered December 22, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004937-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY LAZARUS, J.: FILED AUGUST 11, 2023
Nathaniel Brice McCain appeals, pro se, from the order, entered in the
Court of Common Pleas of Lancaster County, dismissing his petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
Upon review, we affirm.
On September 22, 2021, McCain entered into an open guilty plea to
possession with intent to deliver (PWID) - fentanyl,1 PWID – crack cocaine,2
and possession of drug paraphernalia.3 The trial court deferred sentencing
and ordered the preparation of a pre-sentence investigation report (PSI). On
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* Former Justice specially assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30).
2 Id.
3 Id. at § (a)(32).
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January 24, 2022, the trial court sentenced McCain to an aggregate term of 6
to 12 years in prison. McCain filed a post-sentence motion, which the trial
court denied on February 11, 2022. McCain did not file an appeal.
On August 10, 2022, McCain filed the instant pro se PCRA alleging
ineffective assistance of plea counsel. The PCRA court appointed counsel and,
on December 16, 2022, counsel filed a Turner/Finley4 no-merit letter,
accompanied by a motion to withdraw. On December 22, 2022, the PCRA
court granted counsel’s motion to withdraw, and dismissed McCain’s PCRA
petition without first issuing the required Pa.R.Crim.P. 907 notice of intent to
dismiss.5
McCain filed a timely notice of appeal6 and the PCRA court ordered that
McCain file a Rule 1925(b) concise statement of errors complained of on
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4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
5 Normally, the trial court’s failure to comply with the mandatory notice
requirements of Rule 907 would demand that we reverse and remand. See
Pa.R.Crim.P. 907(1); see also Commonwealth v. Feighery, 661 A.2d 437,
439 (Pa. Super. 1995). However, as discussed infra, McCain failed to file a
court-ordered Pa.R.A.P. 1925(b) concise statement, which results in waiver of
all claims on appeal. See Pa.R.A.P. 1925(b)(4)(vii). Consequently, we are
constrained to conclude that McCain has waived any challenge to the trial
court’s error. See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super.
2013) (“The failure to challenge the absence of a Rule 907 notice constitutes
waiver.”) (citation omitted).
6 The trial court’s December 22, 2022 order dismissing McCain’s PCRA petition
was never served on McCain. Rather it was served on prior PCRA counsel and
the Commonwealth on December 27, 2022. McCain filed a pro se notice of
appeal on January 30, 2023. See Pa.R.A.P. 903(a) (notice of appeal shall be
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appeal. However, McCain did not file a Rule 1925(b) statement.
Subsequently, the trial court filed its Rule 1925(a) opinion.
McCain’s failure to file a court-ordered Rule 1925(b) statement
mandates that all his claims are waived. See Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the [Rule 1925(b) s]tatement and/or not raised in
accordance with the provisions of [Rule 1925(b)] are waived.”); see also
Commonwealth v. Ray, 134 A.3d 1109, 1114 (Pa. Super. 2016) (Rule
1925(b) requirements apply to pro se appellants with equal force).
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/11/2023
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filed within 30 days after entry of order from which appeal is taken). We
observe that this Court recently addressed this exact scenario in
Commonwealth v. Midgley, 289 A.3d 1111, 1117 (Pa. Super. 2023), where
our Court held that we may overlook a facially untimely notice of appeal where
the PCRA dismissal order was erroneously sent to prior PCRA counsel, and
there was no service upon a pro se petitioner. See id. Indeed, in Midgley,
this Court stated that where a pro se petitioner was not served with the
dismissal order, Rule 903’s 30-day limit does not begin to run. See id.; see
also Pa.R.Crim.P. 907(4) (“[t]he order shall be filed and served as provided
in [Pa.R.Crim.P. 114]”) (emphasis added); Pa.R.Crim.P. 114(B)(1) (requiring
service on pro se parties). Consequently, we consider McCain’s notice of
appeal to be timely filed. See Midgley, supra.
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