J-A29044-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHERYL A. CALIENTE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 140 MDA 2020

Appeal from the Judgment of Sentence Entered December 3, 2019

In the Court of Common Pleas of Bradford County Criminal Division at 

No: CP-08-CR-0000378-2019

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*

JUDGMENT ORDER BY COLINS, J.: FILED APRIL 15, 2021

Appellant, Cheryl A. Caliente, appeals from the aggregate judgment of 

sentence of 39 months’ to 92 months’ incarceration, which was imposed after 

her jury trial conviction for two counts of Retail Theft and two counts of Theft 

by Receiving Stolen Property.1 We find that Appellate Counsel’s failure to file 

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b) (Rule 1925(b) statement) constitutes ineffectiveness of counsel per 

se. Thus, we remand for additional proceedings consistent with this decision. 

On December 3, 2019, the trial court sentenced Appellant to an 

aggregate sentence of 39 months’ to 92 months’ incarceration after her 

conviction at a jury trial of the charges listed above. Appellant filed a timely 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3929(a)(2) and 3925(1), respectively.
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post-sentence motion, which the trial court denied on December 17, 2019. 

On January 15, 2020, Appellant filed a timely notice of appeal.

On January 21, 2020, the trial court filed an order pursuant to Pa.R.A.P. 

1925, directing Appellant to file a Rule 1925(b) statement no later than 21 

days from the date of the order. Rule 1925(b) Order, 1/21/20. Appellate 

Counsel failed to file a Rule 1925(b) statement. Appellate Counsel’s failure to 

file a Rule 1925(b) statement when ordered to do so constitutes per se

ineffectiveness of counsel. See Commonwealth v. Burton, 973 A.2d 428, 

432 (Pa. Super. 2009) (en banc) (“The complete failure to file the 1925 

concise statement is per se ineffectiveness because it is without reasonable 

basis designed to effectuate the client’s interest and waives all issues on 

appeal.”). Pa.R.A.P. 1925(c)(3) states, 

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.

Pa.R.A.P. 1925(c)(3). 

We, therefore, remand this matter to the trial court to appoint new 

counsel for Appellant within 15 days of the date that the certified record is 

returned to the trial court. New counsel shall file a Rule 1925(b) statement 

with the trial court within 21 days of the date of appointment, unless extended 

by the trial court. The trial court shall file a supplemental 1925(a) opinion, or 
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a statement that no further opinion is necessary, within 30 days of the filing 

of the Rule 1925(b) statement.2 The trial court shall include the Rule 1925(b) 

statement and supplemental opinion, or statement that no further opinion is 

necessary, in the certified record. 

Case remanded with instructions. Jurisdiction retained. 

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2 We note that the trial court did file a 1925(a) opinion which addressed the 

issues Appellant raised in her post-sentence motion. As such, a new 1925(a) 

opinion may not be needed.