Remand after failure to file timely Pa.R.App.Pro. 1925(b) statement to allow trial court to address issues in the untimely filed statement/ suggestions for trial courts in the future faced with no or untimely filing of 1925(b) statement

Commonwealth v. Thompson, 2012 PA Super 15, 1/24/12 (12 pages)

Following Ms. Thompson’s attorney’s failure to file an appeal after her sentencing for theft and related offenses, she successfully used the PCRA to have her appellate rights reinstated. The court dismissed her motion for reconsideration of sentence and her new attorney filed a direct appeal. However, her attorney missed the deadline for filing the Pa.R.App.Pro. 1925(b) statement of matters complained of as ordered by the court. The court then issued an opinion stating she had waived her issues on appeal. After the filing of the opinion, the attorney filed a nunc pro tunc motion for extension of time claiming she had not received the 1925(b) order until the opinion was filed. After a hearing, the motion was denied.  Ms. Thompson filed an appeal, her issues consisting of various challenges to the sufficiency of the evidence to convict her.

The Superior Court declined to review her issues, given the failure to file the 1925(b) statement on time. The Court then reviewed the evolution of Rule 1925 into its current form in 2007.  Rule 1925(c)(3) allows an appellate court to remand a criminal matter for the appointment of new counsel and the filing of a 1925(b) statement and Rule1925(a) opinion if convinced counsel was per se ineffective for failure to file a statement. The Superior Court has also ruled that it will consider issues raised in an untimely 1925(b) statement that are addressed in the trial court’s opinion. In Ms. Thompson’s case though, the trial court failed to address the issues.  The Court therefore utilized a procedure it announced in Commonwealth v. Burton, 973 A.2d428 (Pa. Super. 2009), and applied Rule 1925(c)(3) to situations where the statement was filed untimely, as doing so is the equivalent of failing to file one at all.

In a footnote, the Court asks trial courts in the future confronted with the untimely filing of a 1925(b) statement to note the per se ineffectiveness of counsel in its opinion, and if deemed necessary, appoint new counsel and address the issues in the untimely filed 1925(b) motion.  The footnote goes on to further suggest, “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.” All of this is in the interest of avoiding unnecessary delay.

In another footnote, the Court noted that the 1925(c) procedure would not necessarily apply to PCRA appeals.

The case can be found by following the links from here.





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