J-S08004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES ROBERT HILL
Appellant No. 184 WDA 2016
Appeal from the PCRA Order dated December 11, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009750-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.
MEMORANDUM BY SOLANO, J.: FILED JUNE 14, 2017
Appellant James Robert Hill appeals from the order denying his petition
for relief under the Post Conviction Relief Act (“PCRA”).1 For the reasons that
follow, we vacate the order of the PCRA court and remand with instructions
to hold an evidentiary hearing as set forth below.
On August 18, 2014, Appellant was found guilty by a jury of attempted
homicide2 and related counts.3 Appellant was thereafter sentenced to an
aggregate of thirty years and nine months to sixty-one and one-half years’
incarceration. PCRA Ct. Op., 6/28/16, at 1. The court apprised Appellant on
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1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 901(a).
3
Appellant was convicted under the following statutes: 18 Pa.C.S. §§
2702.1(a), 2702(a)(1), 2702(a)(3), 6106(a)(1), 5104, and 75 Pa.C.S. §
3733(a).
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the record of his post-sentence and appellate rights. Appellant’s court-
appointed trial counsel did not file either a post-sentence motion or direct
appeal. Counsel did not specifically move to withdraw.4
On October 31, 2014, Appellant filed a pro se “Motion to
Modify/Reduce Sentence Nunc Pro Tunc.” In the motion, Appellant asserted
that he was abandoned by counsel, who failed to file either an oral or written
post-sentence motion on his behalf. Appellant stated that he wished to
challenge the discretionary aspects of the sentence imposed, he had advised
counsel to file for reconsideration of his sentence and to perfect an appeal,
and counsel’s failure to do so constituted ineffectiveness. In response to this
filing, on March 13, 2015, the PCRA court appointed new counsel (“PCRA
counsel”) to represent Appellant.5
Before appointed counsel took any action of record, on June 25, 2015,
Appellant filed a pro se PCRA petition. In this petition, Appellant again
claimed his trial counsel was ineffective for failing to pursue a post-sentence
motion or appeal on Appellant’s behalf. Appellant stated that he did not
realize counsel abandoned him until he found out “from the law library,” and
that he never received notice that his judgment of sentence had become
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4
Appointed trial counsel’s obligation to represent Appellant ended when
Appellant’s judgment of sentence became final. Pa.R.Crim.P. 122(B)(2).
5
The PCRA court correctly treated Appellant’s pro se filing as a PCRA
petition. See Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super.
2013).
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final after 30 days.6 Appellant asserted that he did not knowingly or
intentionally waive his right to file a post-sentence motion or a notice of
appeal. Pursuant to Pa.R.Crim.P. 576(A), the court forwarded Appellant’s pro
se petition to PCRA counsel for further action.
On August 28, 2015, PCRA counsel filed a motion to withdraw and a
“no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). In the letter, counsel explained that trial counsel was not ineffective
for failing to challenge the sentences received by Appellant because any
challenges would be lacking in merit. PCRA counsel arrived at this conclusion
after establishing that the sentences received by Appellant did not exceed
the legal maximum and were within the guidelines ranges; the trial court
had listed the reasons for the sentences on the record; and the trial court
did not consider any inappropriate factors.
In addition, counsel asserted that, contrary to the allegations in his
PCRA petition, Appellant did receive notice of finality of his sentences
because he was informed on the record, during sentencing, of the deadlines
by which he must file a post-sentence motion or direct appeal. Appellant’s
PCRA counsel also conversed with Appellant’s trial counsel and reported in
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6
Because no post-sentence motion or appeal was filed, Appellant’s judgment
of sentence became final thirty days after the trial court imposed sentence.
Pa.R.A.P. 903(c)(3).
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the no-merit letter that trial counsel advised Appellant of his right to file and
the deadlines for filing a post-sentence motion and direct appeal.7
On September 1, 2015, the PCRA court issued a notice of its intention
to dismiss Appellant’s PCRA petition without a hearing, pursuant to
Pa.R.Crim.P. 907, and granted PCRA counsel leave to withdraw. The court
stated that it was denying relief “for the reasons stated in [the no-merit]
letter,” and gave Appellant 30 days to respond to the Rule 907 notice.
Appellant filed a timely pro se response,8 again raising trial counsel’s
ineffectiveness for failing to file a post-sentence motion and direct appeal,
and also claiming that “PCRA counsel is also ineffective for failing to raise
this claim and also for failing to investigate and develop[] any claims of her
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7
The applicable portion of the no-merit letter states:
[U]ndersigned counsel spoke with trial counsel, Mr. Foreman,
who said he visited [Appellant] after sentencing and advised
[Appellant] of his right to file post-sentence motions and direct
appeal. [Appellant] told Mr. Foreman he would think about it, to
which Mr. Foreman warned him of the 10-day deadline to file
post-sentence motions and 30-day deadline to file a direct
appeal. Mr. Foreman also advised [Appellant] that he would not
file anything unless he heard back from [Appellant], and
[Appellant] never contacted Mr. Foreman requesting that any
action be taken.
No-Merit Letter, 8/28/15, at 12.
8
Appellant’s response was docketed as filed on October 6, 2015, but signed
by Appellant on September 27, 2015. Pursuant to the prisoner mailbox rule,
the date an incarcerated pro se defendant submits his document to the
prison authorities is deemed the effective date of its filing. See
Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006).
Thus, Appellant’s response to the court’s Pa.R.Crim.P. 907 notice was timely.
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own leaving [Appellant] to fend for himself.” Appellant alleged that he
directed trial counsel to file post-sentence motions and an appeal through
both mail and telephone conversations.9
On December 15, 2015, the PCRA court entered a final order that
dismissed Appellant’s PCRA petition.10 Appellant filed a timely pro se notice
of appeal on January 8, 2016.11 In his appeal, Appellant poses the following
questions for our review:
Did trial counsel act ineffectively by abandoning [Appellant] and
failing to offer oral or written post-trial motions?
Did PCRA counsel act ineffective[ly] by not attacking trial
counsel[’]s ineffectiveness claims by [Appellant]?
Did [the] trial court abuse its discretion by not serving an order
on [Appellant] appointing [Appellant] Post-conviction counsel?
Did [the] trial court abuse its discretion by dismissing
[Appellant’s] first timely PCRA petition without a hearing where
material fact existed as to violation of Pa. Const. Art. 5 Section
9?
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9
In addition to asking that his excessive-sentence claim be raised in a post-
sentence motion nunc pro tunc, Appellant also asserted, for the first time, a
request to challenge the weight of the evidence supporting his conviction.
10
Although Appellant’s initial pro se motion to modify his sentence nunc pro
tunc and his subsequent pro se PCRA petition reference only Docket Number
CP-02-CR-0009750-2013, the PCRA court’s final order dismissing Appellant’s
PCRA petition also referenced a related case involving Appellant, No. CP-02-
CR-0005910-2013. As no appeal was taken in that case, we do not address
the actions of the PCRA court relating to that docket number.
11
Appellant’s initial notice of appeal referenced only docket number “9702-
2011,” an unrelated case. On February 3, 2016, Appellant filed an
“amended” notice of appeal, clarifying that he wished to appeal in Docket
Number CP-02-CR-0009750-2013 instead.
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Appellant’s Brief at 2 (unpaginated).
In addition to reiterating his previous arguments, Appellant’s brief
argues to this Court that he never received notice that PCRA counsel was
appointed to represent him and that his trial counsel was ineffective for
failing to introduce medical records at trial to support a diminished capacity
defense. See Appellant’s Brief at 4-5 (unpaginated). These issues are
waived because they were not previously raised by Appellant in the PCRA
court and may not be raised for the first time on appeal. See
Commonwealth v. Mikell, 968 A.2d 779, 782 (Pa. Super. 2009) (citing
Pa.R.A.P. 302(a)), appeal denied, 985 A.2d 971 (Pa. 2009).
For the remaining claims, we employ the following standard of review:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court's ruling if it
is supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court's decision on any grounds if it is
supported by the record. Further, we afford great deference to
the factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record.
Commonwealth v. Markowitz, 32 A.3d 706, 711 (Pa. Super. 2011)
(citations omitted), appeal denied, 40 A.3d 1235 (Pa. 2012)).
Appellant primarily argues that (1) his trial counsel was ineffective for
failing to file post-sentence motions and a notice of appeal, and (2)
subsequent PCRA counsel was also ineffective for failing to pursue (and
thereby waiving) this claim. Appellant has therefore presented a “layered”
ineffectiveness claim. See generally Commonwealth v. McGill, 832 A.2d
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1014, 1021-23 (Pa. 2003) (explaining that in a layered ineffectiveness claim,
present counsel must raise whether intermediate counsel were ineffective for
failing to raise, and thereby waiving, an underlying claim of ineffectiveness).
Notice of Appeal
In assessing Appellant’s claim, we apply the well-settled test first
established in Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987):
To prevail on an ineffectiveness claim, appellant must establish:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel's actions or failure to act; and (3)
[appellant] suffered prejudice as a result of counsel's error such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error.
Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). Counsel is
presumed effective, and a petitioner bears the burden of proving otherwise.
Id. “However, in certain limited circumstances, including the actual or
constructive denial of counsel, prejudice may be so plain that the cost of
litigating the issue of prejudice is unjustified, and a finding of ineffective
assistance of counsel per se is warranted.” Commonwealth v. Rosado,
150 A.3d 425, 429 (Pa. 2016). This exception applies in cases where counsel
actually or constructively denied a defendant his right to appeal, such as
where counsel fails to file or perfect a requested appeal. Id. at 430-431
(citing Commonwealth v. Lantzy, 736 A.2d 564, 566 (Pa. 1999)).
Appellant claims that this is such a case.
Where counsel is alleged to have abandoned a defendant by failing to
file or perfect an appeal, the appropriate procedure is to file a PCRA petition
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seeking reinstatement of appeal rights nunc pro tunc. Commonwealth v.
Bennett, 930 A.2d 1264, 1269 (Pa. 2007). While a defendant can waive his
right to appeal, “no waiver can be presumed where the record is silent,” and
where a petitioner alleges that he directed trial counsel to file an appeal, an
evidentiary hearing is required. Commonwealth v. Bronaugh, 670 A.2d
147, 148-49 (Pa. Super. 1995). Compare Commonwealth v. Baker, 880
A.2d 654, 657 (Pa. Super. 2005) (noting PCRA hearing established that trial
counsel failed to file requested appeal), with Commonwealth v.
Hernandez, 755 A.2d 1, 11-12 (Pa. Super. 2000), aff’d in part, 817 A.2d
479 (Pa. 2003) (stating no evidentiary hearing required where record was
clear that the appellant directed trial counsel to challenge the discretionary
aspects of his sentence and perfect an appeal on that issue).
“Where a defendant does not ask his attorney to file a direct appeal,
counsel still may be held ineffective if he does not consult with his client
about the client’s appellate rights.” Markowitz, 32 A.3d at 714.
In analyzing whether there is a constitutional mandate to consult
with a defendant about his appellate rights, the Supreme Court
opined that a court must determine if [(1)] a 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 appealing. Where a petitioner can prove either
factor, he establishes that his claim has arguable merit.
Id. at 716 (quotation marks and citation omitted). Whether an attorney’s
failure to consult with his client regarding appellate rights rendered his
assistance ineffective depends on whether the client suffered actual
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prejudice. Id. A defendant has suffered prejudice when, “but for counsel’s
deficient failure to consult with him about an appeal, he would have timely
appealed.” Id.12
Appellant claims that he did not knowingly or intentionally waive his
right to file a post-sentence motion or a notice of appeal. Thus, his claim of
trial counsel ineffectiveness has arguable merit. McGill, 832 A.2d at 1021-
23; Rosado, 150 A.3d at 430. As the trial record is silent as to the waiver of
Appellant’s rights, an evidentiary hearing on this issue was required.
Bronaugh, 670 A.2d at 148-49; see also Commonwealth v. Walls, 993
A.2d 289, 305 (Pa. Super. 2010) (remanding for an evidentiary hearing by
the PCRA court where the resolution of genuine issues of material fact would
affect a finding of trial counsel’s ineffectiveness).
The PCRA court did not hold such a hearing. Instead, it concluded that
Appellant was not deprived of his rights to file post-sentence motions or to
appeal and based that conclusion on the no-merit letter provided by PCRA
counsel. Summarizing that letter, the PCRA court stated:
Trial counsel advised post-conviction counsel that trial counsel
had discussed [Appellant]’s right to file post-sentence motions
and a direct appeal with him. Trial counsel also discussed the
deadlines in which [Appellant] would have to act should he wish
to file post-sentence motions or a direct appeal. Finally, trial
counsel advised [Appellant] that if he did not hear back from
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12
Furthermore, counsel’s advice regarding a defendant’s appellate rights
must not be erroneous. “Accordingly, where a petitioner can establish that
but for counsel’s erroneous advice, he would have filed a direct appeal, he is
entitled to the reinstatement of his direct appeal rights.” Markowitz, 32
A.3d at 717.
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[Appellant], that he would not file any post-sentence motions or
appeal. Lastly, trial counsel advised post-conviction counsel that
trial counsel was not contacted by [Appellant] for the purposes
of filing either post-sentence motions or an appeal. It thus
appears that there is no basis for [Appellant]’s claim that counsel
was ineffective in failing to take steps that [Appellant] never
asked him to take. Accordingly, [Appellant]’s claim of ineffective
assistance is without merit.
PCRA Ct. Op. at 5-6.
We find the PCRA court’s conclusions unsupported by the record. None
of the information on which the court based its reasoning was provided to
the court under oath or was subject to cross-examination by Appellant. The
PCRA record is silent — because there is no such record — on whether trial
counsel actually advised or corresponded with Appellant. The no-merit letter
from PCRA counsel is not evidence, and anything the letter says about what
trial counsel purportedly told PCRA counsel is mere hearsay.13 Appellant
therefore is entitled to a remand for a hearing to determine whether his trial
counsel was ineffective.
With respect to Appellant’s PCRA counsel, the record discloses no
reasonable basis for that lawyer’s failure to pursue Appellant’s claim
regarding his trial counsel and to request an evidentiary hearing on that
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13
The PCRA court, like PCRA counsel, also relied on the fact that Appellant
had been apprised during the sentencing hearing of the deadlines for filing a
post-sentence motion or notice of appeal. PCRA Ct. Op. at 6. However, this
notice would have alerted Appellant only of the time within which he had to
request that his attorney file these documents on his behalf. The notice does
not resolve whether counsel was ineffective for failing to comply with such a
request.
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claim. See McGill, 832 A.2d at 1023 (in rare instances, the basis of second
counsel’s strategy in a layered ineffectiveness claim is clear and obvious
from the record); Hernandez, 755 A.2d at 12 (failure to perfect requested
appeal obviously lacks reasonable basis). PCRA counsel’s actions prejudiced
Appellant’s ability to obtain reinstatement of his appellate rights. See
Rosado, 150 A.3d at 430 (failure to file or perfect requested appeal results
in per se prejudice to defendant). We therefore conclude that PCRA counsel
provided ineffective assistance to Appellant on his petition.
Accordingly, we reverse the trial court’s order dismissing Appellant’s
claims and remand so that the PCRA court may hold an evidentiary hearing
to resolve whether Appellant requested trial counsel to file a post-sentence
motion or appeal and whether Appellant’s counsel consulted with Appellant
about his appellate rights.14 If Appellant proves his claims at that hearing,
the trial court shall reinstate Appellant’s appeal rights nunc pro tunc.
Post-Sentence Motion
We also remand so that the trial court may determine whether
Appellant shall be permitted to file a post-sentence motion nunc pro tunc, as
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14
Counsel shall be appointed for Appellant for this hearing. See
Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009)
(“Pursuant to the rules of criminal procedure and interpretive case law, a
criminal defendant has a right to representation of counsel for purposes of
litigating a first PCRA petition through the entire appellate process” (citing
Pa.R.Crim.P. 904(c))).
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such a motion is a prerequisite to preservation of the sentencing claims
Appellant wishes to present on an appeal.
Where counsel fails to preserve the sole issue an appellant wishes to
appeal, regardless of the merits of that issue, counsel’s failure automatically
prejudices the appellant, and reinstatement of post-sentence rights nunc pro
tunc is the proper remedy. For example, in Hernandez, the appellant
“sought to raise one issue on direct appeal, his challenge to the discretionary
aspects of his sentence.” 755 A.2d at 8. Counsel, however, failed to preserve
the issue by objecting at the time the sentence was imposed or by filing a
post-sentence motion. Id. at 3. We held that waiver of the appellant’s sole
issue effectively denied his entire right to appeal. Id. at 8-9 (citing, among
other cases, Commonwealth v. Ciotto, 555 A.2d 930, 931 (Pa. Super.
1989)). We explained:
We expressly distinguish herein cases like the present where
direct appeal counsel’s ineffectiveness waived all the issues that
the post-conviction petitioner wished to raise from those cases
where direct appeal counsel simply did not raise every issue
requested by the criminal defendant. Clearly, in both situations,
the criminal defendant has a right to effective representation.
However, in the later situation, counsel’s conduct may, in fact,
have been effective, despite not raising every issue which the
defendant believes is meritorious. . . .
Thus, a PCRA petitioner is entitled to an appeal nunc pro tunc
where prior counsel’s actions, in effect, entirely denied his right
to a direct appeal, as opposed to a PCRA petitioner whose prior
counsel’s ineffectiveness may have waived one or more, but not
all, issues on direct appeal.
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Hernandez, 755 A.2d at 9 n.4 (citations omitted); accord Commonwealth
v. Halley, 870 A.2d 795, 801 (Pa. 2005); Commonwealth v. Pulanco,
954 A.2d 639, 642 (Pa. Super. 2008).
Similarly, in Commonwealth v. Johnson, 889 A.2d 620, 623 (Pa.
Super. 2005), the appellant’s sole issue was a challenge to the discretionary
aspects of his sentence. Id. at 623. Because counsel failed to file a Pa.R.A.P.
2119(f) Statement preserving this issue for appellate review, we found that
prejudice was presumed and remanded for reinstatement of the appellant’s
direct appeal rights nunc pro tunc. Id. at 623-2415; see also
Commonwealth v. Lane, 81 A.3d 974, 981 (Pa. Super. 2013) (remanding
for reinstatement of appellate rights nunc pro tunc where defendant was
constructively denied his right to appeal by counsel’s failure to file Rule
1925(b) Statement); cf. Commonwealth v. Reaves, 923 A.2d 1119,
1128-29 (Pa. 2007) (where trial counsel’s waiver of a discretionary
sentencing claim did not deprive appellant of his right to direct appellate
review of other claims, appellant needed to satisfy the actual prejudice
standard to prevail on a collateral ineffectiveness claim against his trial
counsel).
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15
We noted in both Hernandez and Johnson that while an appellant does
not have an absolute right to appellate review of the discretionary aspects of
a sentence, an appellant has a right to seek such review, and that right
must be protected by counsel. Johnson, 889 A.2d at 623-24; Hernandez,
755 A.2d at 12 n.6.
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Instantly, Appellant claims that his trial counsel was ineffective for
failing to file a post-sentence motion; and, because the only issues Appellant
wished to pursue on direct appeal must be preserved in a post-sentence
motion, such a failure by trial counsel would have constructively denied
Appellant his right to appeal. Hernandez, 755 A.2d at 8-9. Appellant’s claim
therefore has arguable merit. Again, the trial record is silent regarding
Appellant’s waiver of his appellate rights.
The PCRA court and PCRA counsel both concluded that Appellant’s
ineffectiveness claims lacked merit because they concluded that his
underlying claims lacked merit. See PCRA Ct. Op. at 3-4 (stating that
Appellant’s sentence “was neither illegal nor an abuse of discretion,” “was
imposed after a consideration of the crimes for which [Appellant] was
convicted, his prior criminal record, as well as a review of the presentence
report,” “followed the dictates of the Sentencing Code,” and “was the
minimum confinement consistent with the gravity of the offenses that
[Appellant] committed, along with the need to protect the public, while
considering [Appellant’s] needs for rehabilitation”); No-Merit Letter,
8/28/15, at 4-12.16 This analysis was error. The PCRA court and PCRA
counsel improperly focused on the substantive merits of Appellant’s
purported challenge to the discretionary aspects of Appellant’s sentence,
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16
Although Appellant raised in his response to the Rule 907 notice that he
also wished to file a post-sentence motion to challenge the weight of the
evidence, the PCRA court did not address this claim.
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rather than on whether Appellant was denied his right to appeal the
discretionary aspects of his sentence. See Hernandez, 755 A.2d at 8. This
question of the denial of Appellant’s right to appeal fundamentally precedes
the analysis of the merits of Appellant’s underlying claims, because a
petitioner whose counsel failed to file or perfect an appeal need not
demonstrate the merits of whatever issues he would have raised on appeal.
Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999). PCRA counsel’s
failure to pursue reinstatement of Appellant’s post-sentence rights in
conjunction with reinstatement of his appellate rights lacked a reasonable
basis and prejudiced Appellant. McGill, 832 A.2d at 1023; Hernandez, 755
A.2d at 8-9.
We have ordered a remand so that the PCRA court may consider
whether to reinstate Appellant’s appeal rights. Here, as in Hernandez and
Johnson, the sole issues Appellant wishes to raise if his appeal rights are
reinstated are issues that must be preserved in a post-sentence motion.
Therefore, if the PCRA court determines on remand that Appellant should
have his direct appeal rights reinstated nunc pro tunc, the court shall permit
Appellant to file a post-sentence motion nunc pro tunc as well. If the PCRA
court concludes that Appellant should not have his right to file a direct
appeal reinstated nunc pro tunc, then the PCRA court may determine
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whether Appellant’s trial counsel was ineffective for failing to pursue the
discretionary sentencing claim based on the merits of that issue.17
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2017
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17
We recognize that the PCRA court has already determined that the
underlying challenge to the discretionary aspects of Appellant’s sentence
lacks merit. See PCRA Ct. Op. at 3-4. However, we decline to review the
merits of this issue on the current record, where the specific issues asserted
by Appellant have not been briefed by counsel. Cf. Hernandez, 755 A.2d at
12 (rather than remand for reinstatement of the appellant’s direct appeal
rights nunc pro tunc, the Court reviewed the underlying discretionary
sentencing claim on the record, where the record included a counseled
appellate brief addressing the specific challenges to the sentence).
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