NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v. CORDELL DUANE BROADUS, No WDA 2012 Appellant Appeal from the PCRA Order, October 9, 2012, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR BEFORE FORD ELLIOTT, P.J.E., GANTMAN AND SHOGAN, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E. FILED SEPTEMBER 18, 2013 Appellant, Cordell Duane Broadus, acting pro se, appeals the order dismissing his third petition brought pursuant to the Post Conviction Relief Act ( PCRA ), 42 Pa.C.S.A Finding that appellant has waived all issues on appeal, we will affirm. Appellant was convicted of first degree murder, and on May 1, 2002, he was sentenced to a term of life imprisonment. Appellant s judgment of sentence was affirmed on January 20, 2004, and our supreme court denied allocatur. 1 Two prior counseled PCRA petitions have been dismissed; this 1 Commonwealth v. Broadus, 847 A.2d 755 (Pa.Super. 2004) (unpublished memorandum), appeal denied, 582 Pa. 707, 872 A.2d 171 (2005).

2 court affirmed in both instances, and our supreme court denied allocatur. 2 Appellant now challenges the dismissal of his third PCRA petition. The record reveals that on August 15, 2012, appellant filed his third PCRA petition, pro se, in which he invoked the newly-recognized constitutional right exception to the time limitation of the PCRA contained in Section 9545(b)(1)(iii). Specifically, appellant cites Miller v. Alabama, 132 S.Ct (2012), which held that mandatory life sentences without the possibility of parole were illegal for those offenders who committed their crime prior to the age of 18. In an order dated September 13, 2012, the trial court explained that the Miller decision did not apply to appellant because appellant was 19 years old at the time he committed first degree murder. Pursuant to Pa.R.Crim.P. 907, the trial court gave notice of its intent to dismiss appellant s PCRA petition without a hearing. (See certified record, Order of Court, document #2.) On October 9, 2012, the trial court dismissed appellant s PCRA petition, and appellant filed a timely pro se notice of appeal on October 26, In an order dated October 26, 2012 and filed on November 1, 2012, the PCRA court directed appellant to file a concise statement of matters 2 Commonwealth v. Broadus, 990 A.2d 37 (Pa.Super. 2009) (unpublished memorandum), appeal denied, 606 Pa. 675, 996 A.2d 1067 (2010), cert.denied, 131 S.Ct. 654 (2010), and Commonwealth v. Broadus, 60 A.3d 578 (Pa.Super. 2012) (unpublished memorandum), appeal denied, 63 A.3d 1243 (2013)

3 complained of on appeal. 3 Appellant did not comply, and on January 8, 2013, the PCRA court filed a Rule 1925(a) opinion stating it was unable to resolve any specific issues because appellant had not filed a concise statement. Rule 1925(b)(4)(vii) directs that [i]ssues not included in the Statement and/or not raised in accordance with the provision of this paragraph (b)(4) are waived. Pa.R.A.P. 1925(b)(4)(vii). In Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998), our supreme court established a bright-line rule that in order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule However, in 2007, our supreme court amended Rule 1925, adding Subsection (c)(3), which states (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. 3 We note that the trial court s order dated October 26, 2012 and filed on November 1, 2012 contained a typographical error. The order directed appellant to file his concise statement by October 16, (See certified record, Order of Court, document #8.) Undoubtedly, the trial court meant November 16, 2012, which happens to be 21 days beyond October 26 th. We see no prejudice to appellant since the trial court did not file its opinion until January 4, 2013 advising that appellant has waived any issue he wished to raise

4 Pa.R.A.P. 1925(c)(3). In accordance with this provision, our court now remands where a counseled appellant in a criminal case either totally fails to comply with an order to file a Rule 1925(b) statement, or files an untimely statement, as such conduct amounts to per se ineffectiveness of counsel. See Commonwealth v. Scott, 952 A.2d 1190 (Pa.Super. 2008) (holding that counsel s complete failure to file Rule 1925(b) statement constitutes per se ineffectiveness requiring remand under Rule 1925(c)(3)). Instantly, appellant is representing himself. As such, his failure to file a Rule 1925(b) statement on his own behalf cannot be deemed per se ineffectiveness warranting remand under Rule 1925(c)(3). See Commonwealth v. Fletcher, 604 Pa. 493, 517, 986 A.2d 759, 773 (2009) ( The law prohibits a defendant who chooses to represent himself from alleging his own ineffectiveness. ). Moreover, we observe appellant has been involved in a direct appeal followed by two PCRA appeals; he is not a novice regarding court filings. We conclude appellant s failure to file a Rule 1925(b) statement has resulted in waiver of any claims he wished to raise on appeal. Additionally, even if we did consider that the PCRA court s misdated Rule 1925(b) order in any way misled appellant, we would still affirm the trial court s dismissal of the PCRA petition on the merits presented

5 Order affirmed. Judgment Entered. Deputy Prothonotary Date 9/18/