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Commonwealth v. Hopfer

January 28, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
TIMOTHY HOPFER, APPELLANT



Appeal from the PCRA Order entered November 8, 2007 In the Court of Common Pleas of Chester County Criminal No. CP-15-CR-0001417-2006.

The opinion of the court was delivered by: Fitzgerald, J.

BEFORE: ORIE MELVIN, KLEIN, and FITZGERALD,*fn1 JJ.

OPINION

¶ 1 Appellant, Timothy Hopfer, files this pro se appeal from the order of the Chester County Court of Common Pleas, dismissing as untimely his first petition filed pursuant to the Post Conviction Relief Act (PCRA).*fn2 The PCRA court found all of his claims waived because his Pa.R.A.P. 1925(b) statement was untimely filed. Appellant has also filed a motion to amend and supplement statement of matters complained of on appeal. We hold that when an appellant timely files for an enlargement or extension of time within which to file his Rule 1925(b) statement, the trial court must explain why it finds that good cause was not shown before it may deny the request. We further hold that this Court's decision in Commonwealth v. Bond, 630 A.2d 1281 (Pa. Super. 1993), does not apply when the PCRA court grants counsel's request to withdraw representation and dismisses the PCRA petition less than twenty days before the petitioner receives counsel's official request for withdrawal. Accordingly, we vacate the PCRA court's order and deny as moot Appellant's motion to amend and supplement statement.

¶ 2 As part of a plea agreement, Appellant pleaded guilty to one count of drug delivery resulting in death on September 5, 2006, for which Appellant received a sentence of five to ten years' imprisonment. Appellant did not file a direct appeal. On September 10, 2007, Appellant filed his first pro se PCRA petition.*fn3 On September 12, 2007, the public defender's office was appointed to represent Appellant and amend his petition. Counsel wrote to Appellant on September 17, 2007, explaining that "a review of the key documents in your case indicates that the allegations in your Post Conviction Relief Act Petition at this point are without merit." Letter from counsel to Appellant, dated 9/17/07, at 1. Nonetheless, counsel indicated: "I have requested a transcript of your plea and sentencing and we will review it for any issues that may arise." Id. On November 5, 2007, PCRA counsel sent Appellant a detailed Turner/Finley*fn4 no-merit letter. The PCRA court dismissed Appellant's petition on November 7, 2007, doing so without issuing a Pa.R.Crim.P. 907 notice of intent to dismiss.

¶ 3 Appellant filed his notice of appeal on December 2, 2007. On January 14, 2008, the PCRA court directed Appellant, pursuant to Pa.R.A.P. 1925(b), to file his statement of errors complained of on appeal within 21 days. Thus, Appellant's 1925(b) statement was due on or before February 4, 2008. On January 29, 2008, Appellant filed a motion for extension of time to file the statement, averring that he provided his family with the trial court record in the hopes of their obtaining the services of private counsel. The PCRA court denied his motion. Appellant nonetheless filed his statement on February 22, 2008.*fn5 The PCRA court subsequently filed a Rule 1925(a) opinion finding Appellant's issues waived.

¶ 4 Initially, we review whether Appellant indeed waived his claims on appeal. For many years, it was well-settled that full compliance with a Rule 1925(b) order was mandatory in the strictest sense. See generally Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998) (establishing bright-line rule for Rule 1925 analyses); see also Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005) (re-affirming bright-line Lord rule and emphasizing disapproval of exceptions to Lord rule); Commonwealth v. Schofield, 585 Pa. 389, 888 A.2d 771 (2005) (acknowledging equitable appeal of granting relief, but nonetheless holding that Lord and Castillo mandated finding of waiver). From the time our Supreme Court filed Lord in 1998 until July 24, 2007, the appellate courts of this Commonwealth were required to interpret Rule 1925(b) strictly, which at the time provided only:

(b) Direction to file statement of matters complained of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

Pa.R.A.P. 1925(b) (2006). See Schofield, supra; Castillo, supra; Lord, supra. Importantly, this Court en banc relied on the then-recent decisions in Castillo and Schofield to find that supplemental Rule 1925(b) statements filed outside of the 14-day requirement resulted in waiver of those claims. See Commonwealth v. Jackson, 900 A.2d 936, 939 (Pa. Super. 2006) (en banc) (finding that untimely supplemental statements, filed without leave of court, did not preserve those issues for appeal); see also Commonwealth v. Woods, 909 A.2d 372, 378 (Pa. Super. 2006) (holding that appellants must file separate petition seeking leave of court to file untimely supplemental statement), appeal denied, 591 Pa. 714, 919 A.2d 957 (2007).

¶ 5 However, on July 25, 2007, the current version of Rule 1925 went into effect. See Pa.R.A.P. 1925 (2008). This version of Rule 1925 eliminated the automatic-waiver rule inherent in the previous version by specifically providing: "In extraordinary circumstances, the judge may allow for the filing of a Statement or amended or supplemental Statement nunc pro tunc." Pa.R.A.P. 1925(b) (2008). Perhaps more significantly, the revised version now provides for automatic remand when counsel fails to file a timely Rule 1925(b) statement:

(c) Remand.-

(3) 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 been 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 Pa.R.A.P. 1925(c)(3). A panel of this Court recently recognized that counsel's failure to file a timely statement warranted remand for the filing of a Rule 1925(b) statement nunc pro tunc. See Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa. Super. 2008).

¶ 6 It is evident that the revised rule has relaxed the strict-waiver requirements of Lord and its progeny. From that perspective, we examine the relevant portion of current-Rule 1925(b), which provides: "Upon application of the appellant and for good cause shown, the judge may enlarge the time period initially specified or permit an amended or supplemental Statement to be filed." Pa.R.A.P. 1925(b)(2) (2008). Further, the Note to Paragraph (b)(2) provides: "An enlargement of time upon timely application might be warranted if, for example, there was a serious delay in the transcription of the notes of testimony or in the delivery of the order to appellate counsel." Pa.R.A.P. 1925, Note (2008).

¶ 7 In our view, the revisions to Rule 1925 require our courts to consider carefully an appellant's request for an extension of time within which to file a Rule 1925(b) statement. Instantly, when Appellant filed his timely motion for extension of time, he averred, "All legal documents and materials that were in the Appellant's possession was [sic] sent home in hopes of finding a private attorney for the Appeal to Superior Court." Motion for Extension of Time, filed 2/4/08, at 1.*fn6 Recognizing the change in the rule, the PCRA court stated in its opinion: "I denied this motion [for extension of ...


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