Com. v. Nottingham, J.
Com. v. Nottingham, J. No. 2084 MDA 2016
| Pa. Super. Ct. | Aug 21, 2017Background
- James Edward Nottingham was charged after allegedly firing a gun during an altercation on July 12–13, 2015; Count 10 charged him under 18 Pa.C.S. § 6105 (persons not to possess firearms).
- Jury convicted Nottingham of the § 6105 offense on November 1, 2016.
- Trial counsel filed a premature notice of appeal (from the verdict) and moved to withdraw on December 20, 2016; a Rule 1925(b) order was served on trial counsel on January 5, 2017.
- Court sentenced Nottingham on January 10, 2017; counsel was relieved but instructed to confer with successor counsel; no post‑sentence motions or Rule 1925(b) statement were filed.
- Appellate court identified two core problems: (1) counsel’s complete failure to file the court‑ordered Rule 1925(b) statement (which generally causes waiver), and (2) counsel’s failure to consult with Nottingham about post‑sentence motions/appeal (potential Flores‑Ortega ineffective‑assistance issue).
- Because counsel’s failures amounted to per se ineffectiveness under amended Pa.R.A.P. 1925(c)(3) and relevant precedent, the Superior Court remanded to restore Nottingham’s appellate rights: counsel must consult with defendant, file post‑sentence motions or a Rule 1925(b) statement nunc pro tunc, and the trial court must file an opinion; briefing will then resume on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by omitting a mens rea instruction on § 6105(D) | Commonwealth: conviction stands; issue not preserved and/or no reversible error | Nottingham: trial court failed to instruct jury on mens rea relevant to his defense that he believed his prior felony was expunged | Not reached on merits—case remanded due to counsel failures that impaired appellate process |
| Whether failure to file court‑ordered Rule 1925(b) statement and failure to consult about post‑sentence rights requires relief | Commonwealth: appellee sought quash of premature appeal but did not dispute remand procedure | Nottingham: counsel’s failures prevented proper preservation of issues and appeal | Superior Court: counsel’s complete failure to file Rule 1925(b) statement is per se ineffective; remand ordered for nunc pro tunc filings and trial‑court opinion |
Key Cases Cited
- Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (failure to file Rule 1925(b) statement generally results in waiver)
- Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005) (affirming Lord rule on waiver)
- Commonwealth v. McBride, 957 A.2d 752 (Pa. Super. 2008) (discussing amended Rule 1925 and remand when counsel completely fails to file statement)
- Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009) (holding counsel’s failure to file Rule 1925(b) statement is per se ineffectiveness)
- Commonwealth v. Mitchell, 986 A.2d 1241 (Pa. Super. 2009) (remand required when counsel fails to file court‑ordered concise statement)
- Commonwealth v. Scott, 952 A.2d 1190 (Pa. Super. 2008) (amended Rule 1925 permits remand where counsel completely failed to file statement)
- Roe v. Flores‑Ortega, 528 U.S. 470 (2000) (counsel has duty to consult about appeal when defendant would likely want to appeal; prejudice requires showing reasonable probability defendant would have appealed)
- Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001) (discussing counsel’s consultation duty under Flores‑Ortega)
- Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (timing rules for post‑sentence motions and appeals under Pa.R.Crim.P. 720)