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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COU RT OF : PENNSYLVANIA Appellee :

: v. : : TIMOTHY ALBERT RODENIUS, : : Appellant : No. 147 WDA 2014

Appeal from the Order Entered January 6, 2014 In the Court of Common Pleas of Armstrong County Criminal Division No(s).: CP-03-CR-0000529-2012 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COU RT OF : PENNSYLVANIA Appellee :

: v. : : TIMOTHY ALBERT RODENIUS, : : Appellant : No. 310 WDA 2014

Appeal from the Order January 29, 2014 In the Court of Common Pleas of Armstrong County Criminal Division No(s).: CP-03-CR-0000529-2012 BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD, * JJ. MEMORANDUM BY FITZGERALD, J.: FILED JUNE 12, 2015
Pro se Appellant, Timothy Albert Rodenius, appeals from th e January 6, 2014 order granting the Commonwealth’s motion fo r forfeiture and destruction of his personal property seized in conn ection with the underlying

* Former Justice specially assigned to the Superior Court.J. S17004/15

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case and the January 29, 2014 order granting the pu blic defender’s motion to withdraw. Appellant contends he is entitled to appellate counsel and the court erred by granting the Commonwealth’s concomit ant motion. We affirm on the basis of an untimely Pa.R.A.P. 1925(b) state ment. It is unnecessary for us to review the facts underl ying Appellant’s convictions for sexual abuse of children 1 and child pornography, 2 although we note he pleaded guilty on May 28, 2013. After a successful motion to modify sentence, the court resentenced Appellant on July 1, 2013 to a sentence of 164 to 294 days’ imprisonment and he wa s released that day, having served his maximum sentence. On August 19, 2013, while represented by private co unsel retained for his criminal case, Appellant filed a pro se motion for return of his property. 3 That same day, the Commonwealth filed a motion for forfeiture 4 and destruction under a separate caption and docket num ber. See In re: Evidence Seized In Re: Commonwealth v. Rodenius , CP-03-MD0000238-2013 (C.C.P. Armstrong Aug. 19, 2013) (“ In re Evidence ”). On

1 18 Pa.C.S. § 6312(b).

2 18 Pa.C.S. § 6312(d).

3 As set forth below, the court should have forwarde d Appellant’s pro se motion to his private counsel. See Pa.R.Crim.P. 576(A)(4).

4 The motion did not set forth a statutory basis for forfeiture. The Commonwealth, in its appellate brief, identified 18 Pa.C.S. § 3141 as the basis for forfeiture.J. S17004/15

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January 3, 2014, the court held a hearing on both m otions, with Appellant’s privately-retained counsel representing Appellant’s interests. On January 6, 2014, the court granted the Commonwealth’s motion a nd docketed the order in the In re Evidence case. The court, however, did not enter an order resolving Appellant’s pro se motion for return of property. On January 7, 2014, in the instant case, Appellant’ s privately-retained counsel filed a petition to withdraw due to the det erioration of the attorneyclient relationship. Pet. to Withdraw as Counsel, 1/7/14, at 2. On January 16, 2014, Appellant filed a petition to proceed in forma pauperis , which the court granted on January 21, 2014. On January 16, 2014, Appellant also filed a motion to appoint counsel. The court granted Appellant’s motion on January 21, 2014, and appointed the public defender’s office as Appellant’s counsel . On January 29, 2014, the public defender’s office filed a motion to vaca te court appointment. The public defender reasoned that pursuant to, inter alia , Commonwealth v. $9,847.00 U.S. Currency , 704 A.2d 612 (Pa. 1997) (“ Currency ”), a defendant is not entitled to court-appointed counse l for a motion for forfeiture. Mot. to Vacate Ct. Appointment, 1/28/1 4, at 1. The court agreed and granted the motion on January 29, 2014. Counse l formally withdrew on January 30, 2014. Meanwhile, on January 16, 2014, in the instant case , Appellant filed a
pro se notice of appeal from the January 6, 2014 order fi led in the In reJ. S17004/15

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Evidence case. 5 Appellant also filed a pro se motion for reconsideration of the January 6, 2014 order, which the court denied o n January 21, 2014. Also on January 21, 2014, the court ordered Appella nt to comply with Pa.R.A.P. 1925(b) by February 11, 2014; the order w as served on both Appellant and the public defender’s office—before th e court granted permission to withdraw. The court docketed Appella nt’s pro se Pa.R.A.P. 1925(b) statement on February 18, 2014. We note th at Appellant’s Rule 1925(b) statement is dated February 10, 2014. The record does not include any “United States Postal Service Form 3817, Certif icate of Mailing, or other similar United States Postal Service form,” as refe renced in Pa.R.A.P. 1925(b)(1). Instantly, despite the procedural wrinkles in this case, no party disputes that Appellant is appealing from the Janua ry 6, 2014 order docketed in In re Evidence , which granted the Commonwealth’s motion for forfeiture. Accordingly, we next address whether A ppellant is entitled to appointed counsel. 6
In Commonwealth v. Wingait Farms , 690 A.2d 222, 226 (Pa. 1997), our Supreme Court addressed whether a forfei ture under the

5 Appellant’s pro se notice of appeal referenced the instant CP-03-CR0000529-2012 docket number and a January 6, 2014 or der, which exists only in the In re Evidence case.
6 We consider it prudent to address this before reso lving whether, while acting pro se , Appellant timely complied with Pa.R.A.P. 1925(b).J. S17004/15

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Controlled Substances Forfeiture Act 7 was civil or criminal in nature, and “whether the forfeiture was so punitive that it may not be viewed as civil in nature”:

The [Controlled Substances Forfeiture Act] statute [addressing forfeiture] provides that the proceedin gs are in rem, and in rem forfeitures have traditionally been viewed as civil. . . . Next, we consider whether the forfeiture was so punitive as to become criminal in effect or purpose . The United States Supreme Court has considered such fac tors as (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has histori cally been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its oper ation will promote the traditional aims of punishment—retributi on and deterrence; (5) whether the behavior to which i t applies is already a crime; (6) whether an alternat ive purpose to which it may rationally be connected is assignable for it; and (7) whether it appears exces sive in relation to the alternative purpose assigned. Id. (citations omitted).
In Currency , the Commonwealth filed a petition for civil forfe iture under 42 Pa.C.S. § 6801(a)(6)(i)(A)-(B), which esse ntially states that currency traceable to a violation of the Drug Act i s subject to forfeiture. Currency , 704 A.2d at 614. The Currency Court held that a defendant is not entitled to appointed counsel, reasoning as fol lows:

the property interest at stake commands a lesser le vel of due process protection; the government interest in deterring illegal drug activity by confiscating the profits

7 42 Pa.C.S. §§ 6801-6802.J. S17004/15

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- therefrom is significant; and the risk of an errone ous decision is minimal due to both [the defendant’s] g uilty plea to various drug offenses and to the location o f the currency when found. Thus, the [ Mathews v. Eldridge , 424 U.S. 319 (1976)], factors alone weigh against a finding of a right to the appointment of counsel in this case. . . . Id. at 616. In this case, involving a forfeiture pursuant to 18 Pa.C.S. § 3141, we hold, similar to the Wingait Farms Court, that the forfeiture statute is civil in nature. Although no statutory language in Secti ons 3141 to 3144 defines the instant forfeiture action as in rem in nature, cf. 42 Pa.C.S. § 6802, such actions have been traditionally construed as civil under common law. See Wingait Farms , 690 A.2d at 224-25. Section 3141 also encourages rehabilitation by removing property that facilitate d the defendant’s criminal conduct. See 18 Pa.C.S. § 3141. We also conclude the forfeiture was not so punitive as to be criminal in effect or purpose. See Wingait Farms , 690 A.2d at 226. Although the sanction, which we ackno wledge is in the Crimes Code, promotes deterrence and results from criminal behavior, forfeiture of personal property has not been historically perceiv ed as punishment and Section 3141 lacks a scienter element. See id. Accordingly, because Section 3141 forfeiture is civil in nature, it foll ows Appellant is not entitled to appointed counsel. See Currency , 704 A.2d at 616. The property interest is given less due process protection, the governmen t has an interest in deterring sexual offenses, and the risk of an erron eous decision is minimalJ. S17004/15

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because Appellant pleaded guilty and the goods at i ssue were at the crime

scene. See id. Having concluded Appellant does not have a right to appointed counsel, we ascertain whether we may address his is sues on appeal. Rule 1925(b)(1) follows:

(1) Filing and service. —Appellant shall file of record the Statement and concurrently shall serve the judge. F iling of record and service on the judge shall be in person or by mail as provided in Pa.R.A.P. 121(a) and shall be complete on mailing if appellant obtains a United States Postal Service Form 3817, Certificate of Mailing, o r other similar United States Postal Service form from whic h the date of deposit can be verified in compliance with the requirements set forth in Pa.R.A.P. 1112(c). . . . Pa.R.A.P. 1925(b)(1) (emphasis added). In this case, the record does not contain any “Unit ed States Postal Service Form 3817, Certificate of Mailing, or other similar United States Postal Service form” from which this Court can dete rmine whether Appellant’s Rule 1925(b) statement was timely place d in the mail for filing with the trial court. See Pa.R.A.P. 1925(b)(1). Because the record does not contain any document upon which the “date of deposi t [into the mail] can be verified,” and the Rule 1925(b) statement was docke ted on February 18, 2014, after the deadline, we hold Appellant has wai ved his issues on appeal. See Feingold v. Hendrzak , 15 A.3d 937, 941 (Pa. Super. 2011). Orders affirmed.J. S17004/15

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 6/12/2015