J-S70022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD RIVAS                              :
                                               :
                         Appellant             :   No. 1872 EDA 2017

               Appeal from the PCRA Order Entered May 4, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0003315-2013


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED FEBRUARY 22, 2019

        Richard Rivas appeals from the order of the court denying him relief

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

We vacate and remand for proceedings consistent with this memorandum.

        Rivas was convicted of possession of a controlled substance with intent

to deliver, possession of a controlled substance, and conspiracy to commit

possession of a controlled substance with intent to deliver. 1 The court

sentenced him on July 11, 2014, to serve five to ten years’ confinement. On

Tuesday, July 22, 2014, Rivas, through his trial counsel, filed a motion for

post-sentence        relief.   In   November   2014,   the   trial   court   issued   an

administrative order deeming the post-sentence motion denied by operation

of law pursuant to Pa.R.Crim.P. 720(B)(3)(a) (providing post-sentence motion

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1   35 P.S. §§ 780-113(a)(30), 780-113(a)(16); 18 Pa.C.S.A. § 903.
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is denied by operation of law if court fails to decide or grant extension within

120 days). Rivas’s trial counsel filed a notice of appeal the following day.

       However, this Court quashed the direct appeal. We explained that Rivas

had not filed his post-sentence motion within ten days of his July 11

sentencing, as required by Pa.R.Crim.P. 720(A)(1). As his post-sentence

motion was untimely, Rivas had 30 days from his sentencing in which to file

his notice of appeal, pursuant to Pa.R.Crim.P. 720(A)(3) and Pa.R.A.P. 903(a).

See Commonwealth v. Dreves, 839 A.2d 1122, 1127 (Pa.Super. 2003) (en

banc) (holding filing of untimely post-sentence motion does not toll 30-day

period to file appeal from judgment of sentence). Rivas’s notice of appeal,

filed in November, was therefore untimely. Our order also denied Rivas’s

request to this Court for leave to file a notice of appeal nunc pro tunc.2 We

stated that our order was entered “without prejudice to [Rivas’s] right to apply

for   relief   in   the   trial   court   via   the   Post   Conviction   Relief   Act[.]”

Commonwealth v. Rivas, No. 3328 EDA 2014 (Pa.Super), Per Curiam Order

filed February 17, 2015.

       Rivas thereafter filed a pro se PCRA petition, on April 7, 2015. The PCRA

court appointed counsel, who filed an amended PCRA petition on April 6, 2017.

The Amended Petition alleged that Rivas’s trial counsel was “ineffective

because, after being instructed to file a Notice of Appeal, counsel did so but
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2 In Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999), the Supreme Court
clarified that the proper procedure for reinstatement of appellate rights nunc
pro tunc is through the filing of a PCRA petition. See Commonwealth v.
Bennett, 930 A.2d 1264, 1269 (Pa. 2007).

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did so in an untimely fashion, [] causing the appeal to be quashed by the

Superior Court.” Amended Pet., April 6, 2017, at ¶ 10. Rivas requested the

reinstatement of his direct appeal rights, or, in the alternative, an evidentiary

hearing to prove reinstatement was warranted. The PCRA court issued notice

of its intent to dismiss the petition without a hearing on April 11, 2017, and

dismissed the petition on May 4, 2017. Rivas filed notice of appeal on June 3,

2017.

        Rivas raises a single issue: “Was previous counsel ineffective for having

failed to file [a timely] appeal even though directed to do so by [Rivas]?”

Rivas’s Br. at 3. Rivas requests that we remand the case and direct the PCRA

court to reinstate his appellate rights nunc pro tunc.

        The Commonwealth argues that the record is insufficient to determine

whether Rivas requested trial counsel to pursue a direct appeal, and requests

that we remand for an evidentiary hearing. Commonwealth’s Br. at 4-6.

        In its Pa.R.A.P. 1925(a) Opinion, the PCRA court states that it “now

adopts the position that Mr. Rivas was denied effective assistance of counsel

through [trial counsel’s] failure to file timely post-sentence motions or notice[]

of appeal.” Trial Court Opinion, filed February 13, 2018, at 9. The court quotes

statements made by trial counsel at sentencing—although the notes of

testimony are not part of the certified record—and finds that Rivas “took

presumptive reliance that [trial counsel] would . . . file [post-sentence]

motions within ten days.” Id. at 8. Although the court asserts that the

appropriate remedy is reinstatement of Rivas’s appellate rights nunc pro tunc,

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it simultaneously states that we should remand for an evidentiary hearing so

the court may determine whether Rivas was denied the right to a direct

appeal. Id. at 7, 9.

       Our review of denial of PCRA relief “is limited to the findings of the PCRA

court and the evidence of record, viewed in the light most favorable to the

prevailing party at the PCRA court level.” Commonwealth v. Medina, 92

A.3d 1210, 1214 (Pa.Super. 2014)(en banc). “[T]he PCRA court can decline

to hold a hearing if there is no genuine issue concerning any material fact and

the petitioner is not entitled to post-conviction collateral relief, and no purpose

would be served by any further proceedings.” Commonwealth v. Smith, 121

A.3d 1049, 1052 (Pa.Super. 2015). An appellate court must “examine each of

the issues raised in the PCRA petition in light of the record in order to

determine whether the PCRA court erred in concluding that there were no

genuine issues of material fact and in denying relief without an evidentiary

hearing.” Id.

       Although a PCRA petitioner claiming ineffective assistance of trial

counsel must generally demonstrate counsel’s ineffectiveness under the three

prongs of the Strickland/Pierce3 test, including that counsel’s failings caused

prejudice,    “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
____________________________________________


3 Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987).

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assistance of counsel per se is warranted.” Commonwealth v. Rosado, 150

A.3d 425, 429 (Pa. 2016). When this occurs, a PCRA petitioner “is

automatically   entitled   to   reinstatement   of   his   direct   appeal   rights.”

Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa.Super. 2011).

      A defendant is per se denied the right to counsel when counsel’s failure

to perfect an appeal completely forecloses the defendant’s right to an appeal.

Rosado, 150 A.3d at 430-33. It has accordingly been established that a

defendant is entitled to relief when he proves that he asked counsel to file a

notice of appeal and counsel failed to do so. Markowitz, 32 A.3d at 715.

Likewise, counsel’s failure to file a timely notice of appeal, when requested by

the defendant, constitutes ineffectiveness. Commonwealth v. Stock, 679

A.2d 760, 762 (Pa. 1996). When a PCRA court fails to resolve the factual

allegations regarding the circumstances surrounding counsel’s failure to file

an appeal, remand for a hearing is warranted. See Commonwealth v.

McGarry, 172 A.3d 60, 71 (Pa.Super. 2017) (remanding for evidentiary

hearing where PCRA petitioner claimed he asked counsel to file appeal and

PCRA court did not resolve factual issue), appeal denied, 185 A.3d 966 (Pa.

2018).

      Here, Rivas alleged in his PCRA petition that he asked his trial counsel

to file a direct appeal, and the record is clear that while counsel did file a

notice of appeal, he did so in an untimely manner, which resulted in the

quashal of Rivas’s direct appeal. However, as both the PCRA court and the




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Commonwealth acknowledge, the PCRA court failed to resolve issues of

material fact, such as whether Rivas requested a direct appeal.

      We therefore find that the PCRA court erred in dismissing Rivas’s

Amended PCRA Petition without a hearing, and vacate the order dismissing

the Petition. McGarry, 172 A.3d at 71. We remand for a hearing on whether

Rivas was per se denied the right to counsel by counsel’s failure to file a timely

notice of appeal. Id.

      Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/19




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