J-S15014-23
2023 PA Super 118
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACK RONALD STROUD :
:
Appellant : No. 881 MDA 2022
Appeal from the Judgment of Sentence Entered April 21, 2022
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000436-2021
BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.
OPINION BY BOWES, J.: FILED: JULY 10, 2023
Jack Ronald Stroud appeals from the judgment of sentence of twelve to
twenty-four months of incarceration imposed following his guilty plea to one
count of flight to avoid apprehension. Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago,
978 A.2d 349 (Pa. 2009), along with an application to withdraw.
For the reasons that follow, we remand for further proceedings.
Given our disposition, a brief history of this case will suffice. In March
of 2022, Appellant entered a negotiated guilty plea to one count of flight to
avoid apprehension. On April 21, 2022, he was sentenced as indicated
hereinabove, with that sentence set to run consecutive to any other sentence
Appellant was serving. Although no post-sentence motion appears within the
certified record, the trial court entered an order denying a post-sentence
motion and advising Appellant that he had thirty days to file a notice of appeal
J-S15014-23
to this Court.1 Appellant filed his notice of appeal on June 10, 2023, rendering
this appeal timely.2 The trial court entered an order directing Appellant to file
a Pa.R.A.P. 1925(b) statement, but none was filed. The trial court
subsequently issued a statement in lieu of opinion, urging this Court to dismiss
the appeal because Appellant did not file a concise statement as ordered.
In this Court, counsel filed a request to withdraw and an Anders brief
rather than an advocate’s brief. Therein, counsel presents four issues
arguably supporting an appeal:
1. Did the trial court err in determining Appellant’s guilty plea was
entered into knowingly, intelligently, and voluntarily?
2. Did the trial court err and abuse its discretion when it imposed
a consecutive, harsh and excessive sentence?
____________________________________________
1 The trial court’s representation that Appellant had thirty days from the entry
of the May 13, 2022 order to file a notice of appeal was accurate only if
Appellant filed a timely post-sentence motion. As noted, none appears on the
docket or in the certified record to evince its timely filing. However, we need
not ascertain whether Appellant properly filed his post-sentence motion as,
even if he did not, the trial court’s representation that he had thirty days from
the denial of the motion to appeal constituted a breakdown in court processes
that would have precluded us from enforcing an earlier deadline. See
Commonwealth. v. Patterson, 940 A.2d 493, 499 (Pa.Super. 2007)
(refusing to quash untimely appeal where the trial court advised the appellant
that he had thirty days from the denial of his untimely post-sentence motion
to file an appeal, rather than advising him that the lateness of the post-sentence motion did not toll the thirty-day window for appealing the judgment
of sentence).
2 Appellant’s notice of appeal was not docketed until June 15, 2022, but it was
marked as received on June 10, 2022. Hence, we utilize June 10, 2022, as
the filing date. See Pa.R.A.P. 905(a)(3) (“Upon receipt of the notice of appeal,
the clerk shall immediately stamp it with the date of receipt, and that date
shall constitute the date when the appeal was taken[.]”).
-2-
J-S15014-23
3. Did the trial court err when it failed to state sufficient reasons
on the record, beyond Appellant’s criminal history, when
imposing a sentence in the aggravated range of the sentencing
guidelines?
4. Did the trial court err when it ordered Appellant to pay a fine
of $500.00 pursuant to 42 Pa.C.S. § 9726 without determining
his ability to pay said fine?
Anders brief at 8 (cleaned up). Before we consider counsel’s filings, we
address two preliminary matters. The first is counsel’s complete failure to
respond to the trial court’s order requiring Appellant to file a concise statement
pursuant to Pa.R.A.P. 1925. Ordinarily, “the failure to file a Rule 1925(b)
Statement would constitute the waiver of all issues” and per se
ineffectiveness. Commonwealth v. McBride, 957 A.2d 752, 755-56
(Pa.Super. 2008) (cleaned up). To remedy this plain error, we would typically
remand for counsel to file a concise statement. See
id. at 756. However, as
noted, counsel filed an Anders brief and petition seeking leave to withdraw
with this Court. Where counsel intends to file an Anders brief in a criminal
case, “counsel shall file of record and serve on the judge a statement of intent
to withdraw in lieu of filing a [concise s]tatement.” Pa.R.A.P. 1925(c)(4)
(emphasis added).3
____________________________________________
3 This subsection provides in full as follows:
If counsel intends to seek to withdraw in a criminal case pursuant
to Anders/Santiago or if counsel intends to seek to withdraw in
a post-conviction relief appeal pursuant to Turner/Finley,
counsel shall file of record and serve on the judge a statement of
intent to withdraw in lieu of filing a Statement. If the appellate
court believes there are arguably meritorious issues for review,
(Footnote Continued Next Page)
-3-
J-S15014-23
Here, counsel filed neither a Rule 1925(b) statement nor a Rule
1925(c)(4) statement of intent to withdraw. In the face of no filing, the trial
court issued a statement in lieu of opinion asking this Court to dismiss the
appeal. See Statement in Lieu of Opinion, 9/28/22. That was error by the
trial court for two reasons. One, the trial court’s order directing the filing of
the statement was unenforceable because it did not strictly comply with Rule
1925(b).4 See Commonwealth v. Jones, 193 A.3d 957, 961 (Pa.Super.
2018) (declining to find waiver due to the Commonwealth’s non-compliance
with Rule 1925(b) “because the trial court’s Rule 1925(b) order itself [wa]s
deficient”). Two, we have explained the proper steps for a trial court to take
when counsel fails to comply with a Rule 1925(b) order as follows:
[T]o avoid unnecessary delay, when a trial court orders the
appellant in a criminal case to file a Rule 1925(b) statement and
the appellant files it untimely, the trial court’s Rule 1925(a)
____________________________________________
those issues will not be waived; instead, the appellate court shall
remand for the filing and service of a Statement pursuant to
Pa.R.A.P. 1925(b), a supplemental opinion pursuant to Pa.R.A.P.
1925(a), or both. Upon remand, the trial court may, but is not
required to, replace an appellant’s counsel.
Pa.R.A.P. 1925(c)(4).
4 To wit, the order did not specify the place where Appellant could serve the
statement in person or the address to which it could be mailed, and merely
informed Appellant that failure to comply with the order “may be considered
by the appellate court as a waiver of all objections[.]” Order, 7/20/22
(emphasis added). See Pa.R.A.P. 1925(b)(3)(iii) (requiring the order to
contain “the place the appellant can serve the Statement in person and the
address to which the appellant can mail the Statement”); Pa.R.A.P.
1925(b)(3)(iv) (requiring the order to contain a statement that any issue not
raised “shall be deemed waived” (emphasis added)).
-4-
J-S15014-23
opinion should note the per se ineffectiveness of counsel, appoint
new counsel if it deems it necessary, and address the issues raised
on appeal. Similarly, where, as here, counsel fails to file a Rule
1925(b) statement before the trial court files a Rule 1925(a)
opinion, the opinion should note the ineffectiveness of counsel,
permit counsel to file a statement nunc pro tunc and address the
issues raised in a subsequent Rule 1925(a) opinion. The trial court
may appoint new counsel if original counsel fails to comply with
the order because a failure to comply with the order would prohibit
appellate review.
Commonwealth v. Thompson, 39 A.3d 335, 341 n.11 (Pa.Super. 2012)
(cleaned up). Moreover, the trial court’s advocacy for a dismissal based upon
per se ineffectiveness rather than ensuring it procured the necessary
information to author an opinion to assist our review “poses a substantial
impediment to meaningful and effective appellate review.”
McBride, supra
at 758 (cleaned up).
The second preliminary matter we must address is that counsel failed to
ensure that the certified record contained all transcripts and filings necessary
for us to conduct our review. The following legal principles guide this Court’s
review of petitions to withdraw and briefs filed pursuant to Anders and
Santiago:
Direct appeal counsel seeking to withdraw under Anders must file
a petition averring that, after a conscientious examination of the
record, counsel finds the appeal to be wholly frivolous. Counsel
must also file an Anders brief setting forth issues that might
arguably support the appeal along with any other issues necessary
for the effective appellate presentation thereof.
Anders counsel must also provide a copy of the Anders petition
and brief to the appellant, advising the appellant of the right to
retain new counsel, proceed pro se or raise any additional points
worthy of this Court's attention.
-5-
J-S15014-23
If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw and remand
the case with appropriate instructions (e.g., directing counsel
either to comply with Anders or file an advocate's brief on
Appellant's behalf). By contrast, if counsel’s petition and brief
satisfy Anders, we will then undertake our own review of the
appeal to determine if it is wholly frivolous.
If the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are nonfrivolous issues, we will deny the petition and remand for the filing
of an advocate’s brief.
Commonwealth v. Cook, 175 A.3d 345, 348 (Pa.Super. 2017) (cleaned up).
Our Supreme Court has further detailed counsel’s duties as follows:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (1) provide a summary of the
procedural history and facts, with citations to the record; (2) refer
to anything in the record that counsel believes arguably supports
the appeal; (3) set forth counsel’s conclusion that the appeal is
frivolous; and (4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that have
led to the conclusion that the appeal is frivolous.
Santiago, supra at 361.
Not only is the post-sentence motion absent from the certified record
before us in this case, but so is the plea transcript.5 When the record is
incomplete, we can neither confirm that counsel complied with the duty to
conscientiously examine the record, nor conduct our own review to confirm
____________________________________________
5 We note that appending these documents to the brief does not make them
part of the certified record. See Commonwealth v. Preston, 904 A.2d 1, 6
(Pa.Super. 2006) (“[U]nder the Pennsylvania Rules of Appellate Procedure,
any document which is not part of the officially certified record is deemed nonexistent—a deficiency which cannot be remedied merely by including copies
of the missing documents in a brief or in the reproduced record.”).
-6-
J-S15014-23
the frivolity of the appeal. See e.g., Commonwealth v. Flowers, 113 A.3d
1246, 1248 (Pa.Super. 2015).
In sum, without the trial court’s opinion, the plea transcript, or the post-
sentence motion, we lack a complete record and, as a result, cannot conduct
our Anders review. See McBride, supra at 758 (finding that “[t]his Court
cannot meaningfully review claims raised on appeal unless we are provided
with a full and complete certified record” and that “absent the proper filing of
any statement of record by counsel, this Court cannot properly consider
counsel’s request to withdraw” (cleaned up)).
Therefore, we deny counsel’s petition to withdraw and remand for the
filing of either a Rule 1925(b) concise statement or a Rule 1925(c)(4)
statement of intent to withdraw with the trial court within thirty days of the
date of this opinion. Additionally, counsel is directed to ensure inclusion within
the certified record of the plea transcript and post-sentence motion, along
with any other missing documents. Thereafter, the trial court shall author a
Rule 1925(a) opinion within thirty days of receipt of the Rule 1925 statement.
Case remanded for proceedings consistent with this opinion. Panel
jurisdiction retained.
-7-
