Com. v. Mobley, K.

J-S79030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN MOBLEY
Appellant No. 642 EDA 2011
Appeal from the Judgment of Sentence August 30, 2010
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004178-2007
BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED JANUARY 11, 2017
Kevin Mobley appeals from the judgment of sentence entered on
August 30, 2010 by the Philadelphia County Court of Common Pleas.
Because Mobley has not filed a concise statement of errors complained of on
appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), we
remand.
On August 30, 2010, Mobley pled nolo contendere to a charge of third-
degree murder1 and was sentenced to 15 to 30 years’ incarceration. On
September 8, 2010, Mobley filed post-sentence motions, which he had
earlier presented as pro se pre-trial motions, in part, challenging the trial
____________________________________________
1
18 Pa.C.S. § 2502(c).
J-S79030-16
court’s jurisdiction to hear his case. On February 7, 2011, the trial court
entered an order denying Mobley’s post-sentence motions.2
On March 8, 2011, Mobley filed a timely notice of appeal. On April 7,
2011, the trial court entered an order directing Mobley to file a statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21
days. Mobley never filed a 1925(b) statement.3 The trial court did not file
an opinion in support of its order pursuant to 1925(a),4 and the judge who
denied Mobley’s post-sentence motions is no longer sitting as a judge in
Philadelphia County.
On appeal, Mobley avers that his counsel at the time never received
the trial court’s April 7, 2011 order, because it was sent to the wrong
address. Mobley’s Br. at 5. Mobley further avers that “previous counsel
never noticed that a 1925(b) Order was ever entered until previous counsel
____________________________________________
2
The trial court’s February 7, 2011 order disposing of Mobley’s post-
sentence motions includes the court’s reasons for denying the motions. See
Order, 2/7/11.
3
The record reflects Mobley was counseled at the time he filed his
notice of appeal and at the time the trial court entered the Rule 1925(b)
order.
4
On July 18, 2011, the trial court sent a letter to this Court, indicating
that it would forward the record without an opinion because Judge Renee
Cardwell Hughes was no longer sitting on the bench.
-2-
J-S79030-16
was reviewing the Philadelphia Court of Common Pleas record that was in
the file in Superior Court.” Id.5
Before addressing the merits of Mobley’s appeal, we must first address
whether Mobley has preserved his claims for appellate review. As the
Pennsylvania Supreme Court has stated:
Rule 1925(b) sets out a simple bright-line rule, which
obligates an appellant to file and serve a Rule 1925(b)
statement, when so ordered; any issues not raised in a
Rule 1925(b) statement will be deemed waived; the courts
lack the authority to countenance deviations from the
Rule’s terms; the Rule’s provisions are not subject to ad
hoc exceptions or selective enforcement; appellants and
their counsel are responsible for complying with the Rule’s
requirements; Rule 1925 violations may be raised by the
appellate court sua sponte, and the Rule applies
notwithstanding an appellee’s request not to enforce it;
and, if Rule 1925 is not clear as to what is required of an
appellant, on-the-record actions taken by the appellant
aimed at compliance may satisfy the Rule.
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
However, Rule 1925(c)(3) provides “a procedure for appellate courts
to rectify a criminal appellant’s failure to file a Rule 1925(b) statement”:
If an 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.
____________________________________________
5
We note that this matter’s unusually lengthy procedural history at
the appellate level includes the substitution of appellate counsel in 2013.
-3-
J-S79030-16
Pa.R.A.P. 1925(c)(3); see Commonwealth v. Scott, 952 A.2d 1190, 1191-
92 (Pa.Super. 2008). Moreover, this Court has previously found that “the
complete failure by counsel to file a Rule 1925(b) statement, as ordered, is
presumptively prejudicial and clear ineffectiveness.” Scott, 952 A.2d at
1192.
Our review of the record reveals that Mobley’s prior appellate counsel
was per se ineffective, because Mobley failed to file a Rule 1925(b)
statement as ordered, even after discovery of the Rule 1925(b) order in the
record. Furthermore, the trial court has not prepared an opinion pursuant to
Rule 1925(a). Therefore, pursuant to Rule 1925(c)(3), we remand for the
filing of a Rule 1925(b) statement nunc pro tunc within 30 days of this
memorandum and for the preparation of an opinion by the trial court, to be
filed with this Court within 30 days after the filing of the 1925(b) statement.
See Pa.R.A.P. 1925(c)(3).
Case remanded for further proceedings consistent with this decision.
Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2017
-4-