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NON - PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA v. : : CRAIG ANDRUS , : No. 1868 E DA 20 18 : Appellant :
Appeal from the Judgment of Sentence Entered June 4, 2018, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP

- 51

- CR

- 0005092

- 2017

BEFORE: PANELLA , P.J., OLSON , J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 09, 2019 Craig Andrus appeals from the June 4, 2018 judg ment of sentence entered in the Court of Common Pleas of Philadelphia County following his entry of a negotiated guilty plea to third

- degree murder and illegal possession of a f irearm

. 1 The trial court sentenced appellant to 111⁄2 to 23 years of imprisonment. We affirm.
A t the outset , we note that because the facts giving rise to appellant’s convictions are not germane to the disposition of this appeal, we need not set them forth. With respect to procedural history, t he record reflects that after imposition of sentence, no post

- sentence motions were filed. The record further reflects that o n June 12, 2018, despite being represented by counsel,

1 18 Pa.C.S.A. §§ 2502(c) and 6105(a)(1), respectively.J. A1 7 0 44 /19

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appellant filed a pro se notice of appeal to this court stating that he “would like to take back his guilty plea.” (Notice of appeal, 6/6/18.) On August 2 8, 2018, this court entered an order remanding the case to the trial court for 30 days to determine whether t rial counsel had abandoned appellant and to take further action , as required , to protect appellant’s appellate rights, including determination of appellant’s eligibility for court

- appointed c o unsel. ( Per curiam order , 8/ 2 8/18.) In accordance with that re mand order, the trial court held a hearing on September 11, 2018 , wherein it determined that trial counsel had abandoned appellant . As a result, the trial court entered an order that same day permitting trial counsel to wi thdraw and appointing Attorney Gi na Amoriello to repre sent appellant on direct appeal. (Trial court order, 9/11/18.) By separate order also ent ered on September 11, 2018, the t r i al court directed Attorney Amoriello to file a concise statement of errors complained of on appeal pursuant to Pa. R.A.P. 1925(b) on or before October 2, 2018. (Trial court Rule 1925(b) order, 9/11/18.) Attorney Amor iello failed to timely comply. Instead , on September 13, 2018, Attorney Amoriello filed an “application for remand” with this court requesting that we remand to the trial

co urt so that appellant could file a motion to withdraw his guilty plea. (Application for remand, 9/13/18 at 1

- 2.) This c ourt then ordered the Commonwealth and the trial court to show cause , within 21 days, as to whyJ. A1 7 0 44 /19

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the case should not be remanded for further proceedings in accordance with Pa.R.Crim.P. 720 , which sets forth post

- trial procedures

. ( Per curiam order, 10/18/1 8.) The Commonwealth and the trial court timely complied. We note that t he trial court ’s response also served as its Rule 1925(a) o pinion. (Trial court’s w ritten response to Superior Court’ s October 18, 2018 o rder and Rule 1925(a) opinion , 10/23/18 at 1 .) In that response and opinion, the trial court stated that remand pursuant to Rule 720 is not necessary because even if appellant filed a timely post

- sentence motion to withdraw his guilty plea, it would have denied the motion because the record reflect s that appellant entered his guilty plea knowingly, voluntarily, and intelligently. ( Id. at 3

- 6.) On November 30, 2018, this court entered an order denying appel lant’s application for remand. ( Per curi a m order, 11/30/18.) On December 1, 2018, Attorney Amoriello filed an untimely Rule 1925(b) stat ement on appellant’s behalf that challenged the voluntariness of appellant’s guilty plea and raised an ineffective assistance of trial counsel claim. ( Appellant’s “statement of matters complained of o n appeal pursuant to Rule 1925[(b)],” 12/1/18 (full capitalization omitted). ) On January 4, 2019, this court dismissed appellant’s appeal due to appellant’s failure to file a n appellate brief. ( Per curiam order, 1/4/19.) After consideration of appellan t’s application for reconsideration , this court granted the application, vacated the dismissal order, and reinstated this appeal. ( Per curiam order, 1/6/19.)J. A1 7 0 44 /19

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In his brief, a ppellant raises the following issue: Was prior counsel ineffective for failing to file a timely petition to withdraw appellant’s guilty plea when appellant claims that this plea was not knowing, intelligent nor voluntary? Appellant’s brief at 5 (boldface and full capitalization omitted). Preliminarily, we address the untimely filin g of appellant’s Rule 1925(b)
statement , which challenged the voluntariness of appellant’s plea and raised an ineffective assistance of trial counsel claim. (Appellant’s “statement of matters complained of on appeal pursuant to Rule 1925B,” 12/1/18 (full capitalization omitted).) Pursuant to Commonwealth v. Burton , 973 A.2d 428 (Pa.Supe r. 2009), the late filing of a R ule 1925(b) statement is per se ineffectiveness of Attorney Amoriello that would otherwise require a remand for the trial court to have an a dequate o pportunity to address the issue raised on appeal

. Id. at 433; see also Pa.R.A.P. 1925(c)(3). Here , however, a

rema nd is not necessary because appellant’s ineffective assistance of trial counsel claim , which is his sole issue on appeal, is not cognizable on direct appeal. 2 It is well settled that, absent circumstances not present in this case, ineffective assistance of counsel claims are to be deferred to collateral review. Commonwealth v. Reid , 117 A.3d 777, 786 (Pa.Super. 2015 ); see also Com monwealth v. Holmes , 79 A.3d 562, 576 (Pa. 2013).

2 We note that the trial court fully addressed appellant’s challenge to the voluntariness of his plea. ( See “written response to superior court’s October 18, 2018 order and 19 25(a) opinion,” 10/23/18 at 4

- 6 (full capitalization omitted). )J. A1 7 0 44 /19

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Judgment of sentence affirmed without prejudice to any rights appellant may have under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541

- 9546. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/9/19