Com. v. Wimberly, N.

J-S23015-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICOLE WIMBERLY, :
:
Appellant : No. 3711 EDA 2017
Appeal from the Judgment of Sentence Entered October 27, 2017
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0001931-2015
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 08, 2018
Appellant, Nicole Wimberly, appeals from the judgment of sentence
entered on October 27, 2017.1 After careful review, we remand for further
proceedings.
The record reveals that on August 20, 2015, Appellant plead guilty to
one count of access device fraud, graded as a felony of the third degree.2 The
trial court sentenced Appellant to a term of one to three months of
incarceration followed by six years of probation. Sentencing Order, 8/20/15.
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1In her notice of appeal, Appellant purports to appeal from the “order” entered
on “November 1, 2017.” Notice of Appeal, 11/2/17. It is evident, however,
that Appellant is challenging the judgment of sentence imposed on October
27, 2017, following the revocation of her probation. We have corrected the
caption accordingly.
2 18 Pa.C.S. § 4106(a)(1)(ii).
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* Former Justice specially assigned to the Superior Court.
J-S23015-18
On June 30, 2016, Appellant was accused of violating her probation by failing
to: maintain a verifiable address; remain drug free; report to her probation
officer; and make payments on her court costs, fees, and restitution. Petition
for Review of Probation, 6/30/16. On August 12, 2016, Appellant was found
in violation of her probation, and the trial court resentenced her to a term of
four to twelve months of incarceration followed by five years of probation.
The trial court granted Appellant parole on December 7, 2016. However, on
April 13, 2017, Appellant was accused of violating her probation and parole
due to, inter alia, new criminal charges filed on April 10, 2017. On October
27, 2017, the trial court revoked Appellant’s probation and parole and
resentenced her on the probationary sentence to a term of two and one-half
to five years of incarceration.
Despite being represented by Timothy Prendergast, Esquire, Appellant
filed a pro se notice of appeal on November 2, 2017. Apparently unaware of
the pro se appeal, on November 3, 2017, Attorney Prendergast filed a post-
sentence motion for reconsideration of sentence claiming that Appellant’s
sentence was “unduly harsh” and “shocked the conscience.” Post-sentence
Motion, 11/3/17. Nevertheless, because an appeal was filed, the trial court
did not rule on the counseled post-sentence motion and directed Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant failed to respond.
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On March 6, 2018, Attorney Prendergast filed a brief in this Court on
behalf of Appellant. In the brief, counsel avers that the sentence imposed by
the trial court was not an abuse of discretion. Appellant’s Brief at 11. Counsel
then states: “Therefore, Appellant files this brief without argument as to the
merits to an appeal in the above-captioned matter.” Id.
We find that counsel’s actions were improper. Counsel was required to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), or if counsel concluded that Appellant had no meritorious
issues to support an appeal, he should have filed a statement indicating his
intent to file an Anders brief3 pursuant to Pa.R.A.P. 1925(c)(4).4 Counsel
pursued neither of these options and instead effectively abandoned Appellant
on her appeal.
After review, we conclude that Attorney Prendergast’s failure to respond
to the trial court’s Pa.R.A.P. 1925(b) order is per se ineffective assistance of
counsel. Pa.R.A.P. 1925(c)(3). Pursuant to Rule 1925(c)(3), in such
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3 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009) (enumerating the procedure through
which counsel may withdraw from representation on direct appeal where there
are no meritorious issues and an appeal would be frivolous).
4 If counsel believed that he was prohibited from pursuing a challenge to the
discretionary aspects of Appellant’s sentence because Appellant’s pro se notice
of appeal prevented the trial court from considering the counseled post-
sentence motion, counsel could have discontinued the appeal and proceeded
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. This
course of action would have allowed Appellant to pursue the reinstatement of
her right to file a post-sentence motion nunc pro tunc.
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instances, this Court must remand for the filing of a statement nunc pro tunc
and for the preparation and filing of an opinion by the trial court. Accordingly,
we are constrained to remand this matter to the trial court. On remand,
counsel shall, within twenty-one days of the filing of this Memorandum, file a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) or
a statement of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).
After Appellant complies with Pa.R.A.P. 1925, the trial court shall do likewise
within thirty days.
Case remanded for further proceedings consistent with this
Memorandum. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/18
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