Appeal from the PCRA Order December 17, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013009-2007
BEFORE: SHOGAN, J., OTT, J., and PLATT, J. [*]
Desmond Robinson appeals from the denial, without a hearing, of his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. The PCRA court found all issues were waived when Robinson failed to file a Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal. Accordingly, the PCRA court asked this Court to quash the appeal. Rather than quash the appeal, we follow the dictates of Pa.R.A.P. 1925(c)(3) and remand the matter for the filing of a Statement nunc pro tunc and for the PCRA court to prepare and file an opinion.
On January 15, 2013, the PCRA Court ordered Robinson to file a Rule 1925(b) Statement. Robinson's counsel failed to do so. The Commonwealth submits that pursuant to Rule 1925(c)(3), the proper course of action is to remand the case for the filing of the Statement and Opinion. We agree.
Rule 1925(c)(3) states,
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.
Our review of this matter convinces us that the failure to file the Statement was per se ineffective assistance of counsel. Therefore, we are mandated to remand this matter. See also Commonwealth v. Mitchell, 986 A.2d 1241 (Pa.Super. 2009) (failure to file requested 1925(b) statement is per se ineffective assistance of counsel and requires remand for filing of statement nunc pro tunc).
Accordingly, the Superior Court Prothonotary is directed to return the record to the trial court upon the filing of this Memorandum. Counsel for Robinson shall file a Pa.R.A.P. 1925(b) Statement within 21 days of the lower court receipt of the record. The PCRA court shall have 30 days thereafter to prepare and file its Pa.R.A.P. 1925(a) opinion. Upon the filing of the trial court opinion, the record is to be returned to the Superior Court Prothonotary within thirty days. The Superior Court Prothonotary is directed to then issue a new briefing schedule.
Matter remanded for action consistent with this decision. Superior Court jurisdiction retained. ...