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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
STEPHEN JABLONSKI, : No. 647 WDA 2016
:
Appellant :
Appeal from the PCRA Order, March 23, 2016,
in the Court of Common Pleas of Cambria County
Criminal Division at No. CP-11-CR-0001918-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 28, 2017
Stephen Jablonski appeals from the March 23, 2016 order entered in
the Court of Common Pleas of Cambria County that dismissed his first 1
petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. After careful review, we vacate and remand
with instructions.
The PCRA court set forth the following in the opinion it filed when it
entered its order dismissing appellant’s PCRA petition:
On April 2, 2015, [appellant] pled guilty to
[one count of] Bomb Threats – Threatens Placement
1
We note that in its March 23, 2016 order, the PCRA court erroneously
refers to appellant’s PCRA petition that underlies this appeal as a “second or
subsequent [p]etition.” (Order of court, 3/23/16.)
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of Bomb,[2] a felony in the third degree.[Footnote 1]
This Court sentenced [appellant] to pay costs, a
$500.00 fine, restitution, and incarceration for 24 to
48 months at a State Correctional Institution without
[Recidivism Risk Reduction Incentive] and effective
October 22, 2014. After sentencing, [appellant] filed
several pro se correspondences with the Cambria
County Clerk of Clerks [sic], including multiple
untimely pro se post sentence motions.
[Footnote 1] 18 Pa.C.S.A. § 2715(a)(4).
[Appellant] filed a pro se PCRA Petition on
June 26, 2015, claiming constitutional violations,
ineffective assistance of counsel, and a plea of guilt
unlawfully induced. This Court appointed attorney
Devon A. Casti on August 7, 2015 and conducted a
PCRA conference on October 26, 2015. [Appellant]
filed an amended and counseled PCRA Petition on
December 2, 2015. This Court held a PCRA Hearing
on December 9, 2015.
PCRA court opinion, 3/23/16 at 2 (record citations omitted).
In addition, the record reflects that following the PCRA court’s entry of
its order dismissing appellant’s PCRA petition, appellant filed a timely notice
of appeal. Appellant also complied with the PCRA court’s order to file a
concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). The PCRA court then filed a “statement of the court
pursuant to Pa.R.A.P. 1925” wherein it incorporated the reasons for its
dismissal of appellant’s PCRA petition as set forth in its March 23, 2016
opinion.
2
The Crimes Code titles the offense as “threat to use weapons of mass
destruction.” See 18 Pa.C.S.A. § 2715.
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At the outset, we note that appellant raises four issues3 for our review,
including an ineffective assistance of counsel claim for plea counsel’s failure
to file a requested direct appeal. Because our determination of that issue
entitles appellant to reinstatement of his direct-appeal rights, we need not
consider his remaining claims.
3
Appellant frames his issues as follows:
A. WHETHER COUNSEL WAS INEFFECTIVE FOR
FAILING TO REQUEST AND PURSUE A CHANGE
OF VENUE FROM THE CAMBRIA COUNTY
COURT OF COMMON PLEAS, AS THE
COURTHOUSE, STAFF AND JUDGES WERE THE
VICTIMS OF THE APPELLANT[?]
B. WHETHER TRIAL COUNSEL WAS INEFFECTIVE
FOR FAILING TO PRESERVE APPELLANT’S POST
SENTENCE MOTION AND APPELLATE RIGHTS,
DESPITE THE APPELLANT’S REQUEST, AND
FOR FAILING TO FILE THE SAME ON BEHALF
OF THE APPELLANT[?]
C. WHETHER COUNSEL WAS INEFFECTIVE FOR
FAILING TO OBJECT TO THE CRIMINAL
INFORMATION FILED FOR RECORD ON
MARCH 30, 2015, WHICH INCLUDED AN
UPGRADED CHARGE NOT WAIVED UP FROM
THE MAGISTERIAL COURT[?]
D. WHETHER APPELLANT’S GUILTY PLEA WAS
NOT KNOWING, VOLUNTARY OR INTELLIGENT
BECAUSE HE WAS NOT PROPERLY INFORMED
BY HIS TRIAL COUNSEL OF THE UPGRADED
CHARGE AT THE TIME HE ENTERED HIS
PLEA[?]
Appellant’s brief at 2.
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When reviewing an order denying PCRA relief, this court must
ascertain whether the record supports the PCRA court’s determination and
whether the PCRA court’s decision is free of legal error. Commonwealth v.
Ruiz, 131 A.3d 54, 57 (Pa.Super. 2015). We will not disturb the PCRA
court’s findings, unless the certified record fails to support those findings.
Id.
In Pennsylvania,
an accused has an absolute right to appeal,
P[ennsylvania] Constitution, Article V, § 9, and
counsel can be faulted for allowing that right to be
waived unless the accused himself effectively waives
the right, i.e. for not protecting the accused’s right
in the absence of an effective waiver. This
requirement that counsel protect the appellate right
of an accused extends even to circumstances where
the appeal is “totally without merit.”
Commonwealth v. Perry, 464 Pa. 272, 346 A.2d
554, 555 (Pa. 1975). This is not to say counsel must
advance baseless claims in an appeal; rather, under
such circumstances, he must protect the accused’s
right through the procedure enunciated in Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967).[] Quite simply, the Anders procedure
would serve no purpose were we to accept the [Post
Conviction Hearing Act] court’s position [that counsel
cannot be deemed ineffective for failing to file an
appeal where the petition does not disclose issues of
arguable merit].
Commonwealth v. Wilkerson, 416 A.2d 477, 479 (Pa. 1980); see also
Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007) (counsel is
considered ineffective per se when counsel fails to file a requested direct
appeal); Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999) (defendant
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entitled to automatic reinstatement of direct-appeal rights where counsel
fails to initiate a requested direct appeal).
Here, the PCRA hearing transcript reveals that appellant requested
that plea counsel file a direct appeal, and counsel declined to do so because
he believed that the issues that appellant wished to raise lacked merit, as
follows:
Q. So you sat down with [appellant] immediately
after sentencing?
A. Yes.
Q. And discussed the appeal process?
A. Yes.
Q. [Appellant] contacted your office and asked to
file an appeal or asked to file post-sentence
motions, did you have any contact with him
again at that point?
A. I didn’t. I think some of the time frame – like
I said I can’t remember the specifics, but I
know that I left a detailed message. You know
my secretary talked to him on numerous
occasions reiterating again that I didn’t think
there was any merit to that.
PCRA hearing, 12/9/15 at 62. PCRA counsel also testified that:
[Appellant] called my office numerous times and I
instructed my paralegal, I think we were picking
juries or I forget what was going on, but I know he
called a lot of times and my secretary talked to him
probably at least 10 to 20 times, and explained to
him that there really wasn’t any basis, you know, for
an appeal, for what you would normally appeal to.
And once you do that, you’re jeopardizing, actually, I
doubt it would happen, technically, you know, that
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wasn’t what the Commonwealth had envisioned.
There would be merit, absolutely no merit to those.
Id. at 57.
The record clearly reflects that appellant requested plea counsel to file
a direct appeal from his judgment of sentence and that plea counsel declined
to do so because he concluded that the issues appellant wished to raise
lacked merit. Additionally, when the PCRA court dismissed this claim, it did
so because “[PCRA counsel] acknowledged [appellant’s] requests and
explained why [appellant’s] claims lacked merit.” (PCRA court opinion,
3/23/16 at 5.)
Although plea counsel and the PCRA court believed that plea counsel
had no obligation to file an appeal if there were no meritorious issues to
raise, that belief clashes with prevailing Pennsylvania law. In cases where
counsel believes that a direct appeal is frivolous, counsel must follow the
procedure set forth in Anders and its Pennsylvania progeny. See
Pa.R.A.P. 1925(c)(4). This procedure has been adopted to preserve
appellate review of arguably meritorious claims. Id. Counsel’s failure to
follow proper procedure and the PCRA court’s ruling on this issue defeat this
goal. Consequently, we vacate the order denying collateral relief and
remand this matter with instructions that the PCRA court reinstate
appellant’s direct-appeal rights.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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