J-S55008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CLYDE PATRICK,
Appellant No. 1829 EDA 2013
Appeal from the PCRA Order May 10, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0049140-2009, CP-51-CR-0001537-
2010
BEFORE: BOWES, SHOGAN, and OTT, JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 12, 2014
Clyde Patrick appeals from the order entered by the court below
denying his first counseled PCRA petition. We affirm.
On October 23, 2009, police were conducting surveillance in the 2100
block of Darien Street, Philadelphia. Police observed Appellant engage in a
series of hand-to-hand transactions. After the last transaction, police
effectuated a traffic stop of an individual whom they witnessed participate in
the apparent drug sale. Police recovered one packet of crack cocaine.
Based on this information and the observations of the police, the police
secured a search warrant for 2170 North Darien Street. The residence
appeared abandoned, except for a squatter in a makeshift bedroom. Police
did not recover any drugs from the property.
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Appellant, who was not a citizen of this country, was charged with
non-jury trial, the court found Appellant guilty of PWID cocaine and
possession of cocaine on June 27, 2012. The court sentenced Appellant that
same day to three years probation. Appellant did not file a direct appeal,
but on December 14, 2012, filed a counseled PCRA petition requesting his
direct appeal rights be restored. Thereafter, Appellant filed an amended
petition on February 15, 2013, and the court conducted an evidentiary
hearing on May 10, 2013. Both trial counsel and Appellant testified at the
me date.
However, the court failed to comply with Pa.R.Crim.P. 908(E), which
requires the PCRA court to advise the petitioner of his right to appeal within
thirty days.
Appellant filed a motion for reconsideration on May 17, 2013. The
court scheduled a hearing on that motion and heard argument on June 20,
2013, and denied the motion.1 Appellant filed the instant appeal on June 25,
2013. The court did not direct Appellant to file a concise statement of errors
____________________________________________
1
The record does not contain a scheduling order. However, both the
Commonwealth and PCRA counsel appeared for a June 20, 2013 hearing,
which is transcribed and part of the record. We recognize that jurisdictional
issues cannot be waived, but note that at no point did the Commonwealth
argue that the PCRA court lacked jurisdiction to consider the reconsideration
motion, nor did the PCRA court suggest as such.
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complained of on appeal, but did author a cursory Pa.R.A.P. 1925(a) opinion.
This Court entered an order on July 3, 2013, directing Appellant to show
cause as to why his appeal should not be quashed as untimely. Appellant
filed a response, and this Court deferred resolution to this panel. Appellant
now presents two issues for our review.2
1. Is the appellant entitled to review of his appeal from the
dismissal of his PCRA petition where the notice of appeal was
timely?
2. Is the appellant entitled to post-conviction relief in the form
of the grant of leave to file a direct appeal nunc pro tunc?
Appellant argues that the PCRA court granted his motion for
reconsideration, which tolled the period for filing his appeal. In this respect,
Appellant notes that the court held a hearing on the reconsideration motion,
heard argument on the motion, and then denied him relief on June 20, 2013.
Accordingly, he maintains that his June 25, 2013 notice of appeal was
timely. In the alternative, Appellant posits that a breakdown in the judicial
system occurred. He notes that the PCRA court failed to comply with
Pa.R.Crim.P. 908(E), and nothing in the record demonstrates that he was
____________________________________________
2
We note that Appellant is represented by different PCRA counsel on appeal
than below. Original PCRA counsel was retained, and original substitute
PCRA counsel was appointed for this appeal. That attorney, however,
withdrew, and the PCRA court appointed current counsel.
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aware of the appeal period. In support he relies on Commonwealth v.
Meehan, 628 A.2d 1151 (Pa.Super. 1993). Therein, the petitioner filed an
appeal from a PCRA petition that was untimely. However, we held that since
the court did not inform the petitioner of his appellate rights, we would not
quash the appeal. The Meehan Court ruled that way despite setting forth
that the petitioner therein was experienced with the appellate system and
knew his appellate rights.
appeal is untimely and should be quashed. We disagree. Here, not only did
the PCRA court err in failing to follow Pa.R.Crim.P. 908(E), it proceeded to
and entertained that motion before denying it. While no order exists in the
record where the PCRA court expressly granted reconsideration, we agree
that a breakdown in the judicial system occurred. The PCRA court not only
did not inform Appellant of his appellate rights, it compounded that error by
scheduling a hearing on the reconsideration motion more than thirty days
from the issuance of its final order. In doing so, it appeared to grant the
motion to reconsider. Accordingly, we decline to quash this appeal.
Nonetheless, Appe Our review in PCRA
light most favorable t
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).
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This review is limited to the evidence of record and the factual findings of
the PCRA court. Id
PCRA court and will not disturb those findings unless they have no support in
Id.
error and is supported by record evidence, we will not disturb its ruling. Id.
Nonetheless, where t
review is de novo Id.
Appellant contends that trial counsel was per se ineffective in failing to
file a direct appeal. See -23 (citing Commonwealth
v. Lantzy, 736 A.2d 564 (Pa. 1998); Commonwealth v. Liebel, 825 A.2d
630 (Pa. 2003); Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005)). In
addition, Appellant asserts that even if trial counsel was not per se
ineffective, he was ineffective in failing to consult with him about his
Roe v. Flores-Ortega, 528
U.S. 470 (2000); Commonwealth v. Touw, 781 A.2d 1250 (Pa.Super.
2001)). In the latter scenario, this Court in Commonwealth v.
Markowitz, 32 A.3d 706 (Pa.Super. 2011), outlined the relevant law as
follows.
Where counsel has not advised his client about the client's
appellate rights, the question becomes whether that failure
caused actual prejudice to the petitioner, i.e.,
deficient failure to consult with him about an appeal, he would
Flores Ortega, supra at 484, 120
S.Ct. 1029. In analyzing whether there is a constitutional
mandate to consult with a defendant about his appellate rights,
the Supreme Co
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rational defendant would want to appeal (for example, because
there are nonfrivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to counsel that he
was interested in appeal Id. at 480, 120 S.Ct. 1029.
Where a petitioner can prove either factor, he establishes that
his claim has arguable merit.
In deciding whether the petitioner suffered actual
prejudice, the High Court listed several relevant factors. For
example, did the petitioner plead guilty, thereby decreasing the
number of appealable issues? Id. Pertinent considerations also
include any instructions given by the court with respect to the
defendant's right to appeal as well as evidence of nonfrivolous
grounds for appeal.
Id. at 716.
requested trial counsel file an appeal credible. The court instead credited
have filed an appeal. Specifically, trial counsel testified that Appellant did
not ask for an appeal, although he also indicated that he could not recall
Appellant asking him to file an appeal. He remarked that Appellant
scheduled two appointments with him after his sentencing, but failed to
appear. Trial counsel also referred Appellant to an immigration lawyer
note that trial counsel advised Appellant of his appellate rights following his
sentencing, and, in doing so, actually indicated that if Appellant wished to
appeal he would have to advise the court to appoint a new attorney to
appeal on his behalf.
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establish that trial counsel was per se ineffective. Further, the record
establishes that counsel did inform Appellant of his appellate rights. To the
extent trial counsel did not consult with Appellant in more detail regarding
the possibility of an appeal, the PCRA court found that Appellant failed to
appear at two meetings with trial counsel after his sentencing. Accordingly,
he is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2014
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Com. v. Patrick, C.
Combined Opinion