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[U] Commonwealth v. Hennessy

Superior Court of Pennsylvania

February 24, 2014



Appeal from the Judgment of Sentence entered May 30, 2013 in the Court of Common Pleas of Pike County, Criminal Division, at No(s): CP-52-CR-0000013-2010.




Richard Randolph Hennessy (Appellant) appeals from the judgment of sentence imposed after the trial court revoked his parole. Upon review, we remand with instructions.

On April 22, 2010, Appellant pled guilty to receiving stolen property and possession of drug paraphernalia. On July 1, 2010, he was sentenced to 8 to 23 months' incarceration for receiving stolen property, and a consecutive term of 1 year of probation for possession of drug paraphernalia. Appellant was given credit for time served from December 28, 2009.

On July 6, 2010, Appellant filed a petition for parole. In that petition, he asked the trial court to be released from prison at the expiration of his minimum sentence, on August 28, 2010. On August 19, 2010, Appellant was granted parole effective August 28, 2010.

On November 9, 2011, the trial court issued a detainer for Appellant, because he allegedly violated several conditions of his parole while residing in Oklahoma. Appellant retained counsel, and a hearing was held on May 30, 2013. The trial court found that Appellant was in violation of the terms of his parole, and revoked his parole retroactive to October 13, 2010. The trial court then sentenced Appellant to serve the balance of his parole in the Pike County Jail (October 13, 2010 to June 9, 2014). Appellant was then re-sentenced on his possession of drug paraphernalia charge to a concurrent 3 to 12 months' incarceration. Appellant was given credit for time served following his arrest for the violation from April 25, 2013 to May 30, 2013.

Appellant timely filed a motion to modify his sentence. Appellant asserted that his arrest in Oklahoma while serving parole was a turning point in his life and asked the trial court to reduce his minimum term of incarceration. That motion was denied on June 11, 2013. On June 28, 2013, the trial court filed a corrected order denying the motion to modify sentence.

On July 12, 2013, Appellant filed a notice of appeal.[1] On July 15, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P. 1925. Appellant did not comply, but the trial court authored an opinion.

We first consider whether Appellant has waived all of his issues on appeal for failing to comply with Pa.R.A.P. 1925. See Trial Court Opinion, 8/27/2013, at 2; Commonwealth's Brief at 8. It is well-settled that an appellant waives all issues on appeal if he fails to file a timely concise statement when ordered to do so. Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.").

However, pursuant to Pa.R.A.P. 1925(c)(3), "[i]f 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."

Accordingly, the Superior Court Prothonotary is directed to return the record to the trial court upon the filing of this Memorandum. Counsel for Appellant shall file a Pa.R.A.P. 1925(b) Statement within 21 days of the lower court's receipt of the record. The trial 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 issue a new briefing schedule thereafter.[2]

Case remanded with instructions. Panel jurisdiction retained.

Judgment Entered.

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