Com. v. Burton

• Decision Date: 13 May 2009
• Docket Number: No. 1932 EDA 2007,1932 EDA 2007
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Michael BURTON, Appellant.
• Court: Pennsylvania Superior Court

973 A.2d 428

2009 PA Super 87

COMMONWEALTH of Pennsylvania, Appellee v. Michael BURTON, Appellant.

No. 1932 EDA 2007

Superior Court of Pennsylvania.

Argued January 14, 2009.

Filed May 13, 2009.

Michael F. Giampietro, Philadelphia, for appellant.

Hugh J. Burns, Jr., Asst. Dist. Atty., for Com., appellee.

BEFORE: FORD ELLIOTT, P.J., STEVENS, MUSMANNO, LALLY-GREEN, BENDER, PANELLA, DONOHUE, ALLEN and FREEDBERG, JJ.

OPINION BY FREEDBERG, J.:

¶ 1 Appellant Michael Burton appeals from the judgment of sentence of five to ten years imprisonment imposed following his conviction on the charge of possession with intent to deliver cocaine. Appellant contends that the trial court erred in denying his motion to suppress. Appellant's counsel filed a concise statement of the errors complained of on appeal as ordered by the trial court pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. However, the concise statement was filed one day beyond the deadline set by the trial court.

¶ 2 At the threshold, we are called upon to decide whether untimely filing of a Pa. R.A.P.1925 concise statement of the errors complained of on appeal results in waiver of all claims on appeal. We must determine whether the Supreme Court's adoption of Rule 1925(c)(3), effective July 25, 2007, supersedes prior caselaw which required a finding of waiver when an untimely statement of errors complained of on appeal was filed.

¶ 3 The decision of the Supreme Court in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), established a bright-line rule for Rule 1925¹ compliance mandating a finding of waiver of all issues on appeal in the event of non-compliance with Rule 1925. In Commonwealth v. Butler, 571 Pa. 441, 812 A.2d 631 (2002), the Supreme Court held that such waiver is automatic and applies regardless of whether the Commonwealth raises the waiver issue and regardless of whether the trial court issued an opinion addressing the issues on appeal.

¶ 4 In Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005), a case involving untimely filing of a Rule 1925 concise statement, the Supreme Court reaffirmed the bright-line rule of Lord, expressing disapproval of exceptions to the Lord rule. In Castillo, counsel for appellant filed an untimely 1925 concise statement. This Court held that it would address the issues raised in the untimely filed concise statement because the trial court had addressed the issues in its 1925 opinion. The Supreme Court reversed, based on Lord and Butler, holding that untimely filing of the 1925 concise statement resulted in waiver of all issues on appeal and mandates dismissal of the appeal.

¶ 5 Effective July 25, 2007, the Supreme Court adopted significant amendments to Rule 1925,² including a provision to remedy criminal defense counsel's failure to file a 1925 statement as ordered. That provision, contained in Rule 1925(c)(3), states as follows:

(c) Remand.—

(3) 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.

Thus, contrary to the Lord/Butler bright-line rule, under the amended rule, the remedy now for failure to file a 1925 concise statement is remand to allow nunc pro tunc filing of the statement. See Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa.Super.2008) ("... notwithstanding the decisions in Lord and Butler, pursuant to the amended version of Rule 1925, the complete failure by counsel to file a Rule 1925(b) statement, as ordered, is presumptively prejudicial and clear ineffectiveness, and this Court is directed to remand for the filing of a Rule 1925(b) statement nunc pro tunc and for the preparation and filing of an opinion by the trial judge."). See also Commonwealth v. McBride, 957 A.2d 752, 756 (Pa.Super.2008) ("[c]ounsel's failure to file a statement as required under Rule 1925 deprived [a]ppellant of meaningful review of his appeal and constitutes per se ineffectiveness").

¶ 6 Filing of a Rule 1925 concise statement when ordered is a "prerequisite to appellate merits review" and is "elemental to an effective perfection of the appeal." Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795, 800 (2005). Moreover, "the failure to file a Rule 1925(b) statement on behalf of a criminal defendant seeking to appeal his conviction and/or sentence, resulting in a waiver of all claims asserted on direct appeal, represents the sort of actual or constructive denial of assistance of counsel falling within the narrow category of circumstances in which prejudice is legally presumed." Halley, 870 A.2d at 801. It is clear that "the failure to perfect a requested direct appeal is the functional equivalent of having no representation at all." Halley, 870 A.2d at 801.

¶ 7 The Explanatory Note to revised Rule 1925 provides, in relevant part:

Paragraph (c)(3) This paragraph allows an appellate court to remand in criminal cases only when the appellant has completely failed to respond to an order to file a Statement.... Prior to these amendments of this rule, the appeal was quashed if no timely Statement was filed or served; however, because the failure to file and serve a timely Statement is a failure to perfect the appeal, it is presumptively prejudicial and "clear" ineffectiveness. See, e.g., Commonwealth v. Halley, 582 Pa. 164, 172, 870 A.2d 795, 801 (2005); Commonwealth v. West, 883 A.2d 654, 657 (Pa.Super.2005). Direct appeal rights have typically been restored through a post-conviction relief process, but when the ineffectiveness is apparent and per se, the court in West recognized that the more effective way to resolve such per se ineffectiveness is to remand for the filing of a Statement and opinion. See West, 883 A.2d at 657. The procedure set forth in West is codified in paragraph (c)(3). As the West court recognized, this rationale does not apply when waiver occurs due to the improper filing of a Statement. In such circumstances, relief may occur only through the post-conviction relief process and only upon demonstration by the appellant that, but for the deficiency of counsel, it was reasonably probable that the appeal would have been successful. An appellant must be able to identify per se ineffectiveness to secure a remand under this section, and any appellant who is able to demonstrate per se ineffectiveness is entitled to a remand. Accordingly, this paragraph does not raise the concerns addressed in Johnson v. Mississippi, 486 U.S. 578, 588-89 [108 S.Ct. 1981, 100 L.Ed.2d 575] (1988) (observing that where a rule has not been consistently or regularly applied, it is not—under federal law—an adequate and independent state ground for affirming petitioner's conviction.)

¶ 8 The complete failure to file the 1925 concise statement is per se ineffectiveness because it is without reasonable basis designed to effectuate the client's interest and waives all issues on appeal. Likewise, the untimely filing is per se ineffectiveness because it is without reasonable basis designed to effectuate the client's interest and waives all issues on appeal. Thus untimely filing of the 1925 concise statement is the equivalent of a complete failure to file. Both are per se ineffectiveness of counsel³ from which appellants are entitled to the same prompt relief.

¶ 9 The view that Rule 1925(c)(3) does not apply to untimely 1925 concise statements would produce paradoxical results. The attorney who abandons his client by failing to file a 1925 concise statement would do less of a disservice to the client than the attorney who files a 1925 concise statement beyond the deadline for filing. Clients each victimized by per se ineffectiveness would be treated differently; the abandoned client would receive remand, "the more effective way to resolve such per se ineffectiveness,"⁴ whereas the client whose lawyer files the 1925 concise statement late would be consigned to filing under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq.

¶ 10 Rule 1925(c)(3) was adopted by the Supreme Court to avoid unnecessary delay in the disposition on the merits of cases which results from per se ineffectiveness of appellant's counsel. To accomplish the manifest purpose of the rule untimely filing of a 1925 concise statement ought to have no more severe consequence than a complete failure to file. Thus, if there has been an untimely filing, this Court may decide the appeal on the merits if the trial court had adequate opportunity to prepare an opinion addressing the issues being raised on appeal. If the trial court did not have an adequate opportunity to do so, remand is proper.

¶ 11 Our holding does not apply when there has been an improper filing of a concise statement. As explained in the Explanatory Note to the revised Rule 1925(c)(3), "[a]n appellant must be able to identify per se ineffectiveness to secure a remand under this section, and any appellant who is able to demonstrate per se ineffectiveness is entitled to remand." We simply hold that late filing of a 1925 statement constitutes such per se ineffectiveness. As further explained in the Explanatory Note, "this rationale does not apply when waiver occurs due to the improper filing of a Statement. In such circumstances, relief may occur only through the post-conviction relief process ...".

¶ 12 We are mindful that Article V, § 10, of the Constitution of Pennsylvania vests the power to prescribe general rules of procedure in the Supreme Court of Pennsylvania. Our holding neither contradicts nor expands the plain language of 1925(c)(3). Rather, we treat the late filing of the 1925 concise statement as the equivalent of the failure to file such a statement.⁵

¶ 13 Remand is not necessary in this case because appellant's counsel has filed a Rule 1925 concise statement setting forth the alleged...