J-S73033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMIE CRUZ, SR.                            :
                                               :
                       Appellant               :   No. 728 WDA 2018

                   Appeal from the PCRA Order April 20, 2018
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002299-2016


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY OLSON, J.:                             FILED DECEMBER 7, 2018

        Appellant, Jamie Cruz, Sr., appeals from the April 20, 2018 order

dismissing his first petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We vacate and remand for further

proceedings consistent with this memorandum.

        As our resolution of this appeal is based on the procedural posture of

this case, we do not set forth the factual background. On March 28, 2017,

Appellant pled guilty to making terroristic threats,1 simple assault,2 receiving




____________________________________________


1   18 Pa.C.S.A. § 2706(a)(1).

2   18 Pa.C.S.A. § 2701(a).
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stolen property,3 and stalking.4 On May 9, 2017, the trial court sentenced

Appellant to an aggregate term of two and one-half to five years’

imprisonment. Appellant did not file a direct appeal.

        On September 29, 2017, Appellant filed a timely pro se PCRA petition.

Counsel was appointed and filed an amended petition.            In the amended

petition, Appellant averred, inter alia, that he was coerced by plea counsel to

enter a guilty plea. He also asserted that he instructed plea counsel to file a

direct appeal and plea counsel failed to do so. On March 21, 2018, the PCRA

court issued notice of its intent to dismiss the petition without an evidentiary

hearing. See Pa.R.Crim.P. 907. On April 20, 2018, the PCRA court dismissed

the petition. This timely appeal followed.5

        Appellant presents four issues for our review:

        1. Whether the [PCRA c]ourt erred in failing to find ineffective
           assistance of counsel relative to . . . counsel’s abrogation of
           [A]ppellant’s direct [appellate rights]?

        2. Whether the [PCRA c]ourt erred in finding meritless the habeas
           corpus challenge that several of the criminal charges were
           bound over . . . without any legal predicate?

        3. Whether the [PCRA c]ourt erred in failing to find that the guilty
           plea[ was] invalidated by ineffective assistance of counsel?

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3   18 Pa.C.S.A. § 3921(a).

4   18 Pa.C.S.A. § 2709.1(a)(1).

5Appellant and the PCRA court complied with Pennsylvania Rule of Appellate
Procedure 1925.



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        4. Whether the [PCRA c]ourt erred in failing to find that the police
           authorities wrongfully and illegally seized [personal items from
           Appellant] and are now wrongfully withholding said items?

Appellant’s Brief at 2.6

        In his first issue, Appellant argues that his plea counsel rendered

ineffective assistance of counsel by failing to file a direct appeal as Appellant

instructed. “[T]he Sixth Amendment to the United States Constitution and

Article I, [Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to

effective counsel.      This right is violated where counsel’s performance so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Commonwealth v. Simpson,

112 A.3d 1194, 1197 (Pa. 2015) (cleaned up). “A criminal defendant has the

right to effective counsel during a plea process as well as during a trial.”

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).

However, “[a]llegations of ineffectiveness in connection with the entry of a

guilty plea will serve as the basis for relief only if the ineffectiveness caused

the defendant to enter an involuntary or unknowing plea.” Id. Moreover,

“[c]ounsel is presumed to have been effective.”             Commonwealth v.

Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017).                To prevail on an

ineffective assistance of counsel claim, a “petitioner must plead and prove

that: “(1) his underlying claim is of arguable merit; (2) the particular course



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6   We have renumbered the issues for ease of disposition.

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of conduct pursued by counsel did not have some reasonable basis designed

to effectuate his interests; and, (3) but for counsel’s ineffectiveness, there is

a reasonable probability that the outcome of the challenged proceeding would

have been different.” Commonwealth v. Johnson, 179 A.3d 1153, 1158

(Pa. Super. 2018) (citation omitted).     “A petitioner’s failure to satisfy any

prong of this test is fatal to the claim.” Commonwealth v. Wholaver, 177

A.3d 136, 144 (Pa. 2018) (citation omitted).

      Notwithstanding these general rules relating to ineffective assistance of

counsel, it is axiomatic that plea counsel’s “failure to file a requested direct

appeal constitutes ineffective assistance per se, such that the petitioner is

entitled to reinstatement of direct appeal rights nunc pro tunc without

establishing prejudice.”   Commonwealth v. Ousley, 21 A.3d 1238, 1244

(Pa. Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011) (citation omitted).

The PCRA court erroneously conflated the requirement that plea counsel file

a direct appeal when instructed to do so by his or her client with an attorney’s

obligation to pursue a direct appeal. See PCRA Court Opinion, 6/6/18, at 15

(citations omitted).   An attorney is always required to file a direct appeal

when instructed to do so by his or her client. The attorney, however, may

seek to withdraw from the representation if he or she concludes that the

appeal is wholly frivolous. See Commonwealth v. McClendon, 434 A.2d

1185 (Pa. 1981); Anders v. California, 386 U.S. 738 (1967).




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      Appellant avers that he instructed plea counsel to file a direct appeal

and plea counsel failed to file that direct appeal. If this averment is true,

Appellant is entitled to reinstatement of his direct appellate rights nunc pro

tunc. Hence, we vacate the PCRA court’s order and remand for an evidentiary

hearing to determine if Appellant instructed his plea counsel to file a direct

appeal. As we grant Appellant relief on his first claim of error, we decline to

address the other issues raised in his brief.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/2018




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