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[U] Commonwealth v. Butler

Superior Court of Pennsylvania

March 3, 2014



Appeal from the Judgment of Sentence June 26, 2013 in the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002055-2009.

Joseph D. Seletyn, Esq.




Shawn Butler (Appellant) appeals from the judgment of sentence entered June 26, 2013, after the trial court revoked his parole and sentenced him to 188 days of incarceration. We remand with instructions.

The trial court summarized the relevant procedural history as follows.

After a negotiated guilty plea on August 25, 2009, Appellant was convicted of Simple Assault. He was sentenced to a term of three to twelve months, which was to be served on Electronic Home Monitoring.
A Gagnon II[1] hearing was held on September 24, 2010. At this hearing, Appellant was sentenced to his full back time of 273 days, but was granted immediate parole.
Subsequently, another bench warrant was issued. At the Gagnon II hearing held on June 26, 2013, Appellant stipulated to notice and violation, but contested the sentence. After argument by defense counsel, the Parole and Probation Officer, and the prosecutor, Appellant was sentenced to receive his full back time of 188 days of incarceration. He was ordered to be released upon his max date of December 10, 2013.

Trial Court Opinion, 9/6/2013, at 1 (unnumbered pages).

During his Gagnon II hearing, Appellant was represented by John Baldini, Esquire. The record reflects that Attorney Baldini never withdrew as counsel for Appellant. However, Attorney Baldini took no further action on Appellant's behalf, and Appellant proceeded pro se. On July 9, 2013, Appellant filed a pro se motion for reconsideration of sentence. Appellant then timely filed a pro se notice of appeal on July 17, 2013. The trial court docket indicates that these pro se filings were not sent to Attorney Baldini, but were instead forwarded to Robert Marc Gamburg, Esquire, who is listed as Appellant's attorney of record.[2] It does not appear from the certified record that Attorney Gamburg ever entered his appearance or filed anything for Appellant. Curiously, Appellant indicated in both of these pro se filings that he was represented by a third attorney, Walter Breslin, Esquire. However, like Attorney Gamburg, Attorney Breslin never entered his appearance or filed anything. On July 29, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925. Appellant did not comply. The trial court then denied Appellant's pro se motion for reconsideration of sentence on August 26, 2013.

Instantly, Appellant remains pro se on appeal and attempts to raise a number of claims relating to his parole revocation. The trial court indicates that Appellant's claims have been waived because Appellant failed to file a Rule 1925 statement as ordered. Trial Court Opinion, 9/6/2013, at 2 (unnumbered pages). We disagree.

While the trial court is correct that the failure to file a timely Rule 1925 statement will generally result in the waiver of an appellant's claims, Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011), it is well-settled that an attorney's failure to file such a statement is per se ineffective assistance of counsel. Commonwealth v. Fischere, 70 A.3d 1270, 1275 n.2 (Pa.Super. 2013). Our Rules of Appellate Procedure provide that where no concise statement has been filed by counsel in a criminal case, this Court should generally remand the case so that a statement may be filed nunc pro tunc. Pa.R.A.P. 1925(c)(3).

As noted, supra, Appellant was represented most recently by Attorney Baldini, who never withdrew as Appellant's counsel. Moreover, a second attorney, Attorney Gamburg, is listed as Appellant's counsel on the trial court docket, and was served with various filings in Appellant's case. Finally, Appellant himself indicated that he was represented by a third lawyer, Attorney Breslin.

Accordingly, we remand this case and instruct the trial court as follows. The trial court shall hold a hearing within 60 days of the filing of this Memorandum to determine who, if anyone, represents Appellant. If Appellant remains represented, the trial court will assess

(1) whether [Appellant's attorney] wishes to withdraw and, if so, whether the trial court will permit such withdrawal; (2) whether Appellant wishes to proceed pro se; (3) if Appellant does wish to proceed pro se, to hold a colloquy to determine whether he knowingly and intelligently waives his right to counsel;[3] (4) if [Appellant's attorney] is permitted to withdraw and Appellant does not wish to proceed pro se, to determine whether Appellant is eligible for court appointed counsel on direct appeal and to appoint counsel if appropriate.

Commmonwealth. v. Librizzi, 810 A.2d 692, 693 (Pa.Super. 2002). Further, the trial court shall instruct counsel, or Appellant if he chooses to proceed pro se, to file a Rule 1925 statement. The trial court shall then file a supplemental opinion. After the trial court's certification of its decision, the Superior Court Prothonotary is directed to establish a new briefing schedule. Case remanded for further proceedings consistent with this memorandum. Panel jurisdiction retained.

Judgment Entered.

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