Commonwealth v. McBride
957 A.2d 752
Pa. Super. Ct.
2008
Check Treatment

OPINION BY

ALLEN, J.:

¶ 1 Aрpellant, Ryan A. McBride, appeals from the judgment of sentence entered following revocation of his probation. We remand for further proceedings.

¶ 2 On September 23, 2003, Appellant pled guilty to possession with the intent to deliver, and thе trial court sentenced him *755 to five (5) years probation. On that same date, the trial court sentenced Appellant to eighteen (18) months to three (3) years state incarceration for a statutory sexual assault offense. The five (5) year рrobation period was to be served consecutive to Appellant’s term of incarceration.

¶ 3 After a hearing on February 12, 2007, the trial court found that Appellant had violated his probation. Appellant’s probation was revokеd and he was re-sentenced to five (5) years probation with the condition that he serve a 45-day sentence in the Clearfield County Jail.

¶ 4 On October 26, 2007, after fading to report to his probation officer and testing positive for drug use, Appellant was again found to have violated his probation. The trial court revoked Appellant’s probation and re-sentenced him to one (1) year to three (3) years of state incarceration.

¶ 5 Appellant filed a motion for reconsidеration of sentence on October 30, 2007, which the trial court denied on November 13, 2007. Appellant timely filed a notice of appeal on November 21, 2007. The trial court on November 27, 2007, ordered Appellant to file, within 21 days, a concise stаtement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 1 Appellant failed to do so. In a letter to our Superior Court Prothonotary dated January 22, 2008, the trial court declined to submit a Pa.R.A.P. 1925(a) opinion based upon Aрpellant’s failure to file a concise statement.

¶ 6 Generally, the failure to file a Rule 1925(b) Statement would constitute the waiver of all issues. Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 (1998). According to the bright-line rule set forth by Lord; “... in order to preserve their claims for appellate reviеw, [ajppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) statement will be waived.” Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775, 780, citing Lord, 719 A.2d at 309.

¶ 7 While continuing to uphold Lord’s bright-line rule, we recognize that a remedy is needed in circumstances where counsel fails to file a Rule 1925 statement.

[W]hen all of a criminal defendant’s issues are waived on direct appeal under Lord due to his attorney’s failure to file a Pa.R.A.P. 1925(b) statement, we will presume that the defendant ‍‌‌‌‌​‌‌‌‌​​​‌​​‌‌​‌‌‌‌​‌‌‌​​​‌‌​​​‌‌​‌‌‌‌‌‌‌‌​‌​‍suffered prejudice due to the denial of effective assistance of counsel. As counsel’s actions in Halley resulted in the denial of the criminal defendant’s right to a direct appeal, we held that the appropriate remedy was to reinstate the defendant’s right to pursue a direct appeal.

Castillo, 888 A.2d at 780. Pa.R.A.P. 1925(c)(3) provides:

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 bеen 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.

The Note to Pa.R.A.P. 1925(c)(3) further states:

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. *756 164, 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 the Statement and an opinion. See West, 883 A.2d at 657. The procedure set forth in West is codified in paragraph (c)(3).

Pa.R.A.P 1925 at Note (2007).

¶ 8 Here, counsel’s failure to file a Rule 1925 statemеnt was per se ineffectiveness. “In those extreme circumstances, where counsel has effectively abandoned his or her client and cannot possibly be acting in the client’s best interests, our Supreme Court has held that the risk should fall on counsel, and nоt the client.” Commonwealth v. West, 883 A.2d at 658. In order to restore a defendant’s rights on appeal, the most effective means is to remand for counsel to file a concise statement. West, at 657.

¶ 9 For an appellant to be entitled to a remand, it must be shown that counsel completely failed to file a statement, and that failure resulted in a waiver of all issues. West at 658, citing Halley, 870 A.2d at 801. It is important to distinguish between situations where a remand is proper, and where it is not. The rule in Halley applies only when the ineffectiveness is of such a degreе that the appellant is effectively denied counsel. “[T]he ‍‌‌‌‌​‌‌‌‌​​​‌​​‌‌​‌‌‌‌​‌‌‌​​​‌‌​​​‌‌​‌‌‌‌‌‌‌‌​‌​‍failure to perfect a requested direct appeal is the functional equivalent of having no representation.” Halley at 801, citing Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564, 571 (1999).

¶ 10 In the case presently before us, counsel disregаrded the trial court’s order directing him to file a concise statement. Counsel’s failure to file a statement as required under Rule 1925 deprived Appellant of meaningful review of his appeal and constitutes per se ineffectiveness. Finding that Appellant’s counsel was per se ineffective, we would normally remаnd for a concise statement nunc pro tunc. See Commonwealth v. Scott, 952 A.2d 1190 (Pa.Super.2008) (remanding for counsel’s failure to follow Rule 1925(b)).

¶ 11 However, it is also notable in this case that Appellant’s counsel submitted to this Court a brief and a petition to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). The standard of review when an Anders/McClendon brief has been presented is as follows:

To be permitted to withdraw pursuant to Anders, counsel must: (1) petition the сourt for leave to withdraw stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous; (2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a “no merit” letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel or raise any additional points that he deems worthy of the court’s attention.

Commonwealth v. Boyd, 763 A.2d 421, 423 (Pa.Super.2000). If these requirements arе met, the Court may then evaluate the record to determine whether the appeal is frivolous. Id.

¶ 12 Pursuant to the recent amendments of Rule 1925, if counsel intends to submit an Anders/McClendon brief, the proper procedure is provided in Pa.R.A.P. 1925(c)(4):

*757 In a criminal casе, counsel may file of record and serve on the judge a statement of intent to file an Anders/McClendon brief in lieu of filing a Statement. If, upon review of the Anders/McClendon brief, the appellate court believes that there are arguably meritorious issues for review, those issues will not be waived; instead, the appellаte court may remand for the filing of a Statement, a supplemental opinion pursuant to 1925(a) or both. Upon remand, the trial court may, but is not required to, replace appellant’s counsel.

¶ 13 Rule 1925 provides two options which were available to Appellant’s counsel at the time the trial court directed him to file a concise statement. Appellant’s counsel could have complied with the order and filed a concise statement under Pa.R.A.P. 1925(b), or alternatively, could have filed a statement of intent to file an Anders/McClendon brief. See Commonwealth v. Goodwin, 928 A.2d 287, 293 (Pa.Super.2007) (en bane) (finding that under the newly'promulgated Rule 1925, the concise statement filed by appellant’s attorney indicating that ‘there ‍‌‌‌‌​‌‌‌‌​​​‌​​‌‌​‌‌‌‌​‌‌‌​​​‌‌​​​‌‌​‌‌‌‌‌‌‌‌​‌​‍were no non-frivolous matters that can be raised on appeal’, would be accepted by the Court as a statement of intent to file an Anders/McClendon brief). These options are detailed in the Note to Pa.R.A.P. 1925(c)(4):

Even lawyers seeking to withdraw pursuant to the procedures set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981) are obligated to comply with аll rules, including the filing of a Statement. See Commonwealth v. Myers, 897 A.2d 493, 494-496 (Pa.Super.2006); Commonwealth v. Ladamus, 896 A.2d 592, 594 (Pa.Super.2006). However, because a lawyer will not file an Anders/McClendon brief without concluding that there are no non-frivolous issues to raise on appeal, this amendment allows a lawyer to file, in liеu of a Statement, a representation that no errors have been raised because the lawyer is (or intends to be) seeking to withdraw under Anders/McClendon. At that point, the appellate court will reverse or remand for a supplemental Statement and/or opinion if it finds potentially non-frivolous issues during its constitutionally required review of the record.

Pa.R.A.P 1925 at Note (2007) (emphasis added).

¶ 14 Appellant’s counsel in this case did not file a concise statement, nor did he file a statement of intent to file an Anders/McClendon brief in lieu of a concise statement. While counsel included a “concise statement” within his Anders/McClendon brief filed with this Court on April 4, 2008, and referencing the discretionary aspects of sentencing pursuant to Pa.R.A.P. 2119(f), the introduction of a concise statement at this juncture was insufficient to comply with the requirements of Rule 1925.

¶ 15 For this Court to properly conduct an appellate review, all necessary materials must be contained within the record. “[A]n appellate court is limited to considering only the materials in the certified rеcord when resolving an issue.” Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.Super.2006), citing Commonwealth v. Walker, 878 A.2d 887, 888 (Pa.Super.2005). Additionally, “It is black letter law in this jurisdiction that an appellate court cannot consider anything which is not part of the record in the case.” Commonwealth v. Martz, 926 A.2d 514, 524-525 (Pa.Super.2007), citing Commonwealth v. Boyd, 451 Pa.Super. 404, 679 A.2d 1284, 1290 (1996). Materials that have only been in- *758 eluded in briefs, but are not part of the record cannot bе considered. “It is of course fundamental that matters attached to or contained in briefs are not evidence and cannot be considered part of the record ... on appeal.” Commonwealth v. Stanton, 294 Pa.Super. 516, 440 A.2d 585, 588 (1982) citing Zinman v. Com. of Pa., Dept. of Insurance, 42 Pa.Cmwlth. 270, 400 A.2d 689 (1979). The concise statement that Appellant’s ‍‌‌‌‌​‌‌‌‌​​​‌​​‌‌​‌‌‌‌​‌‌‌​​​‌‌​​​‌‌​‌‌‌‌‌‌‌‌​‌​‍counsel inserted into his Anders/McClendon brief is not part of the certified record and therefore may not be considered by this Court.

¶ 16 The trial court declined to submit an opinion pursuant to Pa.R.A.P. 1925(a) because of counsel’s failure to file a timely Rule 1925 statеment. Pa.R.A.P 1925(a) provides:

Upon receipt of the notice of appeal, the judge who entered the order giving rise to the notice of appeal, if the reasons for the order do not already appear of recоrd, shall forthwith file of record at least a brief opinion of the reasons for the order, or for the rulings of other errors complained of, or shall specify in writing the place in the record where such reasons may be found.

¶ 17 In order to cоnduct a thorough and proper review on appeal, an opinion explaining the reasoning behind the trial court’s decisions is advantageous.

The absence of a trial court opinion poses a substantial impediment to meаningful and effective appellate review. Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues that the parties plan to raise on appeal. Rule 1925 is thus a crucial component of appellate procеss.

Commonwealth v. Butler, 571 Pa. 441, 812 A.2d 631, 636 (2002), citing Lord, 719 A.2d at 308. Rule 1925 directs the trial courts to provide an opinion as to the issues the appellant will raise, and give the appellate court “... records amenable to meaningful appellate review.” Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775, 779 (2005).

¶ 18 In sum, this Court cannot conduct a review under Anders because we do not have а complete record. “This Court cannot meaningfully review claims raised on appeal unless we are provided ■with a full and complete certified record.” Preston, 904 A.2d at 7, citing Commonwealth v. O’Black, 897 A.2d 1234, 1240 (2006). Furthermore, absent the proper filing of any statement of record by сounsel, this Court cannot properly consider counsel’s request to withdraw. For this reason, counsel’s petition to withdraw is denied. In denying counsel’s petition, we decline to require the appointment of new counsel by the trial court.

¶ 19 For the fоregoing reasons, we remand for the filing of either a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), or a statement of intent to file an Anders/McClendon brief pursuant to Rule 1925(c)(4). Regardless of which course of action counsel chooses, an election must be made and a either a concise statement must be filed with the trial court within thirty (30) days of the date of this Opinion, or a statement of intent to file an Anders/McClendon brief in lieu of filing a concise statement, must be filed with the triаl court within thirty (30) days of the date of this Opinion. If counsel files a concise statement of errors complained of on appeal, the trial court shall, within thirty (30) days of receipt, file a Rule 1925(a) opinion. If counsel files a statement of intent to file an Anders/McClendon brief pursuant to Rule 1925(c)(4), a trial court opinion is not necessary and ‍‌‌‌‌​‌‌‌‌​​​‌​​‌‌​‌‌‌‌​‌‌‌​​​‌‌​​​‌‌​‌‌‌‌‌‌‌‌​‌​‍the trial court record shall be certified and transmitted back to this Court.

*759 ¶ 20 Remanded for further proceedings consistent with this Opinion. Panel jurisdiction retained.

Notes

1

. The amendments to Rule 1925, effective July 25, 2007, apply to this case.