THE COURTS

Title 210—APPELLATE PROCEDURE

PART I. RULES OF APPELLATE PROCEDURE

[ 210 PA. CODE CH. 19 ]

Proposed Amendment of Pa.R.A.P. 1925

[50 Pa.B. 304]
[Saturday, January 18, 2020]

 The Appellate Court Procedural Rules Committee is considering proposing to the Supreme Court of Pennsylvania the amendment of Pa.R.A.P. 1925 for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.

 Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They will neither constitute a part of the rules nor will be officially adopted by the Supreme Court.

 Additions to the text of the proposal are bolded and underlined; deletions to the text are bolded and bracketed.

 The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:

Karla M. Shultz, Counsel
Appellate Court Procedural Rules Committee
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
FAX: 717-231-9551
appellaterules@pacourts.us

 All communications in reference to the proposal should be received by February 18, 2020. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.

By the Appellate Court
Procedural Rules Committee

PATRICIA A. McCULLOUGH, 
Chair

Annex A

TITLE 210. APPELLATE PROCEDURE

PART I. RULES OF APPELLATE PROCEDURE

ARTICLE II. APPELLATE PROCEDURE

CHAPTER 19. PREPARATION AND TRANSMISSION OF RECORD AND RELATED MATTERS

RECORD ON APPEAL FROM LOWER COURT

Rule 1925. Opinion in Support of Order.
 

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(c) Remand.

 (1) An appellate court may remand in either a civil or criminal case for a determination as to whether a Statement had been filed and/or served or timely filed and/or served.

 (2) Upon application of the appellant and for good cause shown, an appellate court may remand in a civil case for the filing nunc pro tunc of a Statement or for amendment or supplementation of a timely filed and served Statement and for a concurrent supplemental opinion. If an appellant has a statutory or rule-based right to counsel, good cause shown includes a failure by counsel to file a Statement timely or at all.

 (3) If an appellant represented by counsel in a criminal case was ordered to file a Statement and failed to do so or filed an untimely Statement, such that the appellate court is convinced that counsel has been per se ineffective, and the trial court did not file an opinion, the appellate court may remand for appointment of new counsel, the filing of a Statement nunc pro tunc, and the preparation and filing of an opinion by the judge.

 (4) [In a criminal case, counsel may file of record and serve on the judge a statement of intent to file an Anders/Santiago brief in lieu of filing a Statement. If, upon review of the Anders/Santiago brief, the appellate court believes that there are arguably meritorious issues for review, those issues will not be waived; instead, the appellate court may remand for the filing of a Statement, a supplemental opinion pursuant to Pa.R.A.P. 1925(a), or both. Upon remand, the trial court may, but is not required to, replace appellant's counsel.]

 If an appellant has a right to counsel and counsel intends to seek to withdraw, counsel shall file of record and serve on the judge a statement of intent to withdraw in lieu of filing a Statement. If the appellate court believes there are arguably meritorious issues for review, those issues will not be waived; instead, the appellate court shall remand for the filing of a Statement, a supplemental opinion pursuant to Pa.R.A.P. 1925(a), or both. Upon remand, the trial court may, but is not required to, replace an appellant's counsel.
 

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Official Note:

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 Subparagraph (c)(1): This subparagraph applies to both civil and criminal cases and allows an appellate court to seek additional information—whether by supplementation of the record or additional briefing—if it is not apparent whether an initial or supplemental Statement was filed and/or served or timely filed and/or served.

 Subparagraph (c)(2): This subparagraph allows an appellate court to remand a civil case to allow an initial, amended, or supplemental Statement and/or a supplemental opinion. See also 42 Pa.C.S. § 706. In 2019, the rule was amended to clarify that for those civil appellants who have a statutory or [rules-based] rule-based right to counsel (such as appellants in post-conviction relief, juvenile, parental termination, or civil commitment proceedings) good cause includes a failure of counsel to file a Statement or a timely Statement.

 Subparagraph (c)(3): This subparagraph allows an appellate court to remand in criminal cases only when an appellant, who is represented by counsel, has completely failed to respond to an order to file a Statement or has failed to do so timely. It is thus narrower than subparagraph (c)(2). See, e.g., Commonwealth v. Burton, 973 A.2d 428, 431 (Pa. Super. 2009); Commonwealth v. Halley, 870 A.2d 795, 801 (Pa. 2005); Commonwealth v. West, 883 A.2d 654, 657 (Pa. Super. 2005). Per se ineffectiveness applies in all circumstances in which an appeal is completely foreclosed by counsel's actions, but not in circumstances in which the actions narrow or serve to foreclose the appeal in part. Commonwealth v. Rosado, 150 A.3d 425, 433-35 (Pa. 2016). Pro se appellants are excluded from this exception to the waiver doctrine as set forth in Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998).

 Direct appeal rights have typically been restored through a post-conviction relief process, but when the ineffectiveness is apparent and per se, the court in West recognized that the more effective way to resolve such per se ineffectiveness is to remand for the filing of a Statement and opinion. See West, 883 A.2d at 657; see also Burton (late filing of Statement is per se ineffective assistance of counsel). The procedure set forth in West is codified in subparagraph (c)(3). As the West court recognized, this rationale does not apply when waiver occurs due to the improper filing of a Statement. In such circumstances, relief may occur only through the post-conviction relief process and only upon demonstration by the appellant that, but for the deficiency of counsel, it was reasonably probable that the appeal would have been successful. An appellant must be able to identify per se ineffectiveness to secure a remand under this section, and any appellant who is able to demonstrate per se ineffectiveness is entitled to a remand. Accordingly, this subparagraph does not raise the concerns addressed in Johnson v. Mississippi, 486 U.S. 578, 588-89 (1988) (observing that where a rule has not been consistently or regularly applied, it is not—under federal law—an adequate and independent state ground for affirming petitioner's conviction.)

 Subparagraph (c)(4): [This subparagraph clarifies the special expectations and duties of a criminal lawyer. Even lawyers seeking to withdraw pursuant to the procedures set forth in Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) are obligated to comply with all rules. However, because a lawyer will not file an Anders/Santiago brief without concluding that there are no non-frivolous issues to raise on appeal, this amendment allows a lawyer to file, in lieu of a Statement, a representation that no errors are asserted because the lawyer is (or intends to be) seeking to withdraw under Anders/Santiago. At that point, the appellate court will reverse or remand for a supplemental Statement and/or opinion if it finds potentially non-frivolous issues during its constitutionally required review of the record.] In 2020, subparagraph (c)(4) was amended to remove the limitation on the application of Anders to only criminal cases on appeal. Further, the commentary to subparagraph (c)(4) was revised to provide guidance through case citation for withdrawal procedures when an appellant has a right to counsel.

 An appellant with a constitutional right to counsel should proceed in accordance with the procedures set forth in Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). An appellant with a statutory or rule-based right to counsel should proceed in accordance with the procedures set forth in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). The Anders paradigm may be applicable to non-criminal appeals in which an appellant has a statutory or rule-based right to counsel. See, e.g., In re D.J.H., 171 A.3d 903 (Pa. Super. 2017) (holding Anders procedure applies to appeals from goal change order in child dependency cases, even in the absence of an involuntary termination decree); In re A.G.C., 142 A.3d 102, 105 n.2 (Pa. Super. 2016) (noting directive to counsel to file a proper Anders brief and petition to withdraw or an advocate's brief in appeal from dispositional order following the adjudication of delinquency); In re V.E., 611 A.2d 1267, 1274-75 (Pa. Super. 1992) (extending Anders principles to appeals involving the termination of parental rights). These procedures do not relieve counsel of the obligation to comply with all other rules.

EXPLANATORY COMMENT

 Pa.R.A.P. 1925(c)(4) currently sets forth the procedure when counsel seeks to withdraw from representation in a criminal case on appeal, i.e., counsel is required to ''file of record and serve on the judge a statement of intent to file an Anders/Santiago brief in lieu of filing a Statement.'' The Anders paradigm, however, may be applicable to non-criminal appeals in which an appellant has a statutory or rule-based right to counsel. See, e.g., In re D.J.H., 171 A.3d 903 (Pa. Super. 2017) (holding Anders procedure applies to appeals from goal change order in child dependency cases, even in the absence of an involuntary termination decree); In re A.G.C., 142 A.3d 102, 105 n.2 (Pa. Super. 2016) (noting directive to counsel to file a proper Anders brief and petition to withdraw or an advocate's brief in appeal from dispositional order following the adjudication of delinquency); In re V.E., 611 A.2d 1267, 1274-75 (Pa. Super. 1992) (extending Anders principles to appeals involving the termination of parental rights).

 As a result, the proposed amendment of subparagraph (c)(4) is intended to remove the limitation on the application of Anders to only criminal cases on appeal. Further, the commentary to subparagraph (c)(4) was revised to provide guidance through case citation for withdrawal procedures when an appellant has a right to counsel.

 All comments, concerns, and suggestions concerning this proposal are welcome.

[Pa.B. Doc. No. 20-63. Filed for public inspection January 17, 2020, 9:00 a.m.]

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