J-S70039-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                     Appellee             :
                                          :
                v.                        :
                                          :
STEVEN CAIATI,                            :
                                          :
                     Appellant            :     No. 1321 EDA 2014


             Appeal from the PCRA Order Entered April 14, 2014,
               In the Court of Common Pleas of Wayne County,
             Criminal Division, at No(s): CP-64-CR-0000063-2012

BEFORE: LAZARUS, MUNDY, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED DECEMBER 01, 2014

        Steven Caiati (Appellant) appeals pro se from the order entered April

14, 2014, dismissing his petition filed pursuant to the Post Conviction Relief

Act (PCRA).1    After careful review, we vacate the order of the PCRA court

and remand for further proceedings.

        Appellant was arrested and charged with various offenses stemming

from an incident in which he threw homemade explosive devices at his ex-

girlfriend’s home and vehicle, endangering her and four other individuals

present in her home at the time of the assault. On April 5, 2012, Appellant

pled guilty to three counts of arson, 18 Pa.C.S. § 3301(a)(1)(i). Pursuant to

Appellant’s plea agreement, all additional charges were nolle prossed by the

Commonwealth.        On June 28, 2012, Appellant was sentenced to an


1
    42 Pa.C.S. §§ 9541-9546.
* Retired Senior Judge assigned to the Superior Court.
J-S70039-14


aggregate term of 84 to 168 months’ incarceration.            No direct appeal was

filed.    On June 21, 2013, Appellant timely filed a pro se PCRA petition

alleging, inter alia, plea counsel’s ineffectiveness for failing to file a direct

appeal on Appellant’s behalf.      Brendan R. Ellis, Esquire, was appointed to

represent Appellant.

         On August 26, 2013, Attorney Ellis filed a motion to withdraw as

counsel     and   no-merit    letter   with    the    PCRA    court,   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 Turner/Finley letter, counsel concluded that Appellant’s ineffective

assistance of counsel claims lacked merit, based in large part upon

discussions with Appellant’s plea counsel.

         On September 3, 2013, Appellant filed a pro se motion requesting that

the PCRA court dismiss Attorney Ellis as his PCRA counsel alleging that his

attempts at contacting Attorney Ellis had been unsuccessful.              Appellant

requested that new counsel be appointed to represent him.

         On September 16, 2013, the PCRA court granted appointed counsel’s

request to withdraw and issued notice, pursuant to Rule of Criminal

Procedure 907, of its intention to dismiss Appellant’s PCRA petition without

holding a hearing. The court’s notice advised Appellant that he had 20 days

to respond. On October 3, 2013, the PCRA court denied Appellant’s pro se

motion for new counsel.



                                         -2-
J-S70039-14


      On April 9, 2014, well outside of the 20-day timeframe, Appellant filed

a “re-amended” PCRA petition raising various allegations of PCRA counsel

ineffectiveness.   By order dated April 14, 2014, the PCRA court dismissed

Appellant’s PCRA petition without a hearing.          This appeal followed.      The

PCRA court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925.              Appellant complied

with this directive.

      Appellant raises five issues for this Court’s review.

      1. Did [the PCRA c]ourt err when it determined [Attorney Ellis]
      properly investigated [Appellant’s] claims?

      2. Did [the PCRA c]ourt err in determining [that pre-trial and
      guilty plea] counsel were NOT ineffective without giving
      [Appellant] an evidentiary hearing to prove the facts?

      3. Did [the PCRA c]ourt err in dismissing [Appellant’s amended
      PCRA petition] citing a time bar[] when [Appellant] was still
      represented by [Attorney Ellis] as per the [October 3, 2013]
      docket entry[?]

      4. Did [the PCRA c]ourt err in dismissing [Appellant’s amended
      PCRA petition] in not filing a [Pa.R.Crim.P.] 907 [notice of] intent
      to dismiss[?]

      5. Did [the PCRA c]ourt err in determining [Appellant] did not
      take “layman” proactive steps in compelling [Attorney Ellis] to
      proceed with [his] appeal?

Appellant’s   Brief    at   4   (renumbered    for   ease   of   disposition;   some

capitalization omitted).

      We begin by noting that Appellant’s issues on appeal were preserved

in his 1925(b) statement. However, because Appellant failed to challenge



                                         -3-
J-S70039-14


Attorney Ellis’ stewardship by timely filing a response to counsel’s

Turner/Finley letter or to the PCRA court’s 907 notice, his first issue,

relating to Attorney Ellis’ effectiveness, is waived. Commonwealth v. Pitts,

981 A.2d 875, 879 n.3 (Pa. 2009) (holding that failure to challenge PCRA

counsel’s withdrawal or effectiveness upon his receipt of counsel’s no merit

letter or within the 20-day period prescribed by Rule 907 results in waiver of

those issues on appeal).

        Appellant’s second claim is that the PCRA court erred in denying his

petition without a hearing.      “A PCRA petitioner is not entitled to an

evidentiary hearing as a matter of right, but only where the petition presents

genuine issues of material fact.”     Commonwealth v. Keaton, 45 A.3d

1050, 1094 (Pa. 2012). “A PCRA court has discretion to dismiss a petition if

it is satisfied there are no genuine issues concerning any material fact or any

other legitimate purposes for an evidentiary hearing.” Commonwealth v.

Fears, 86 A.3d 795, 823 (Pa. 2014). Thus, whether Appellant was entitled

to a hearing depends upon whether he raised a genuine issue of material

fact.

        In his PCRA petition, Appellant argues that his plea counsel was

ineffective for failing to file a direct appeal when requested. He reiterates

this claim in his second issue on appeal. “Article V, Section 9 of the

Pennsylvania    Constitution   guarantees   a   direct   appeal   as   of   right.”

Commonwealth v. Lantzy, 736 A.2d 564, 571 (Pa. 1999).



                                      -4-
J-S70039-14


     It is well settled that when a lawyer fails to file a direct appeal
     requested by the defendant, the defendant is automatically
     entitled to reinstatement of his direct appeal rights. 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.               Such
     ineffectiveness, however, will only be found where a duty to
     consult arises either because there were issues of merit to raise
     on direct appeal or the defendant, in some manner, displayed
     signs of desiring an appeal.

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

(citations omitted), appeal denied, 40 A.3d 1235 (Pa. 2012). “The petitioner

has the burden of proving that he requested a direct appeal and that his

counsel heard but ignored or rejected the request.”      Commonwealth v.

Maynard, 900 A.2d 395, 398 (Pa. Super. 2006).

     In his Turner/Finley letter, Attorney Ellis stated that Appellant’s plea

counsel denied being asked to file an appeal; thus, he opined that it was

“unlikely that [Appellant] could prove, by a preponderance of the evidence,

that he requested [plea counsel] file an appeal.” No-merit Letter, 8/26/2013,

at 3-4 (unnumbered).     In his pro se motion for new counsel, Appellant

contends that he was unable to discuss this issue with Attorney Ellis in

detail. The PCRA court’s opinion accompanying its Rule 907 notice failed to

address this issue at all, concluding that, because Appellant entered into a

guilty plea and waived his right to a trial, there was nothing remaining for

plea counsel to “fight.” Pa.R.Crim.P. 907 Notice, 9/16/2013, at 5-6.




                                      -5-
J-S70039-14


      Clearly, a factual finding that Appellant asked counsel to file a direct

appeal would entitle Appellant to relief, even absent a showing of prejudice.

Lantzy, 736 A.2d at 571 (“[A] failure to file or perfect such [a direct] appeal

results in a denial so fundamental as to constitute prejudice per se.”).

However, Appellant was not given the opportunity of a hearing to prove that

he asked plea counsel to file an appeal.

      Therefore, we hold that the PCRA court erred in dismissing Appellant’s

PCRA petition without holding a hearing to determine whether Appellant

asked plea counsel to file a direct appeal; or, whether Appellant displayed

signs of desiring an appeal, whether counsel had a duty to consult with

Appellant about an appeal, and whether counsel did so consult. Accordingly,

we remand for a hearing, limited to these issues.2      See Pa.R.Crim.P. 908

(A)(2) (Except as provided in Rule 907, the judge shall order a hearing…(2)

when the petition for post-conviction relief…raises material issues of fact.)

Further, Appellant is entitled to the appointment of counsel to represent him

at the hearing. See Pa.R.Crim.P. 908 (C) (“The judge shall permit the

defendant to appear in person at the [PCRA] hearing and shall provide the

defendant an opportunity to have counsel.”)

      Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.



2
  In light of our disposition, we need not address the remainder of
Appellant’s issues on appeal.


                                      -6-
J-S70039-14


Judge Lazarus joins the memorandum.

Judge Mundy notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/1/2014




                                  -7-
