Commonwealth v. Smiley, 112520 PASUP, 3068 EDA 2019

• Docket Nº: 3068 EDA 2019
• Opinion Judge: SHOGAN, J.
• Party Name: COMMONWEALTH OF PENNSYLVANIA v. RAEON SMILEY Appellant
• Judge Panel: BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
• Case Date: November 25, 2020
• Court: Superior Court of Pennsylvania

COMMONWEALTH OF PENNSYLVANIA

v.

RAEON SMILEY Appellant

No. 3068 EDA 2019

Superior Court of Pennsylvania

November 25, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered September 21, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008837-2011

BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER

SHOGAN, J.

Appellant, Raeon Smiley, appeals nunc pro tunc from the judgment of sentence entered on September 21, 2017, following the revocation of his probation.¹ After review, we remand with instructions.

The record reveals that Appellant's direct-appeal rights were reinstated nunc pro tunc on October 21, 2019, and Appellant filed a timely appeal on October 25, 2019. On November 21, 2019, the trial court issued an order directing Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal within twenty-one days. However, Appellant failed to comply with the trial court's order.²

As a general rule, counsel's failure to file a court-ordered Pa.R.A.P. 1925(b) statement waives all issues on appeal, and it is per se ineffective assistance of counsel. Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (quoting Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)). When counsel fails to file a Pa.R.A.P. 1925(b) statement, remand for the preparation and filing of a Pa.R.A.P. 1925(b) statement is proper pursuant to Pa.R.A.P. 1925(c)(3). Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.4 (Pa. Super. 2009).

Herein, we conclude that Appellant's counsel's failure to file a Pa.R.A.P. 1925(b) statement was per se ineffective assistance of counsel. Although the trial court prepared an opinion acknowledging that the record contains insufficient reasons for the sentence it imposed, Trial Court Opinion, 12/23/19, at 2, and despite the Commonwealth having no objection to remand to provide the trial court an opportunity to state the reasons for its sentence, Commonwealth's Brief at 6, we note that Appellant attempts to raise more expansive issues in his brief. In addition to asserting that the trial court failed to provide its reasons for the sentence it imposed, Appellant purports to: assert the trial court failed to consider the particular circumstances of the case, Appellant's character, and other important factors; challenge the consecutive...