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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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