J-S27007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID SCOTT RICE,

                            Appellant                No. 1319 MDA 2015


                   Appeal from the PCRA Order June 24, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003324-2011

BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 04, 2016

       Appellant, David Scott Rice, appeals pro se from the June 24, 2015

order denying his first petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546.         After careful review, we vacate

and remand for the appointment of counsel and an evidentiary hearing to

determine whether plea counsel was per se ineffective for failing to file a

requested notice of appeal.

       The trial court summarized the history of this case as follows:

            On May 3, 2013, [Appellant] pled guilty on docket number
       3324-2011 to 105 counts of Possession of Child Pornography[1]
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   Each count was graded as a second degree felony, and each was
punishable by up to ten years in prison and a $25,000 fine. N.T. (Plea),
5/3/13, at 3.
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       in violation of 18 Pa.C.S. § 6[3]12(d)(1).[2] Pursuant to a
       negotiated plea agreement, [Appellant] was sentenced to the
       following: five to ten years’ incarceration for each of counts one
       and two, to be served consecutively; two and a half to five years’
       incarceration for count three, to be served consecutive to count
       two; five to ten years’ incarceration for counts four through 105,
       to be served concurrent with count one.                Accordingly,
       [Appellant’s] total aggregate sentence was twelve and a half to
       twenty five years’ incarceration.      At the time of the plea,
       [Appellant] was represented by Attorney Samuel Encarnacion.
       [No direct appeal was filed.]

              On April 23, 2014, [Appellant] filed a timely pro se Motion
       for Post-Conviction Collateral Relief, and on May 5, 2014, the
       undersigned appointed Attorney Vincent J. Quinn, Esquire as
       PCRA counsel. Mr. Quinn was grant[ed] forty-five (45) days to
       file an amended Petition. None was filed, and on August 22,
       2014, Attorney Quinn filed a Finley/no merit letter1 and a Motion
       to Withdraw as Counsel. On October 6, 2014, pursuant to
       Pa.R.Crim.P. 907, the undersigned filed its Notice of Intent to
       Dismiss [Appellant’s] pro se PCRA Petition without a hearing and
       granted Mr. Quinn permission to withdraw as counsel.
              1
                See Commonwealth v. Finley, 550 A.2d 213 (Pa.
              Super. 1998)[, and Commonwealth v. Turner, 544
              A.2d 927 (Pa. 1988)].

              On June 24, 2015, for the reasons stated in the court’s
       October 6, 2014 Order, the undersigned dismissed [Appellant’s]
       PCRA Petition without hearing under Rule 907. On July 16,
       2015, [Appellant] filed a Notice of Appeal, giving notice that
       [Appellant] appealed to the Superior Court of Pennsylvania, MDA
       from the June 24, 2015 Order denying Post-Conviction Relief.
       [Appellant] included in this Notice an application to proceed In
       Forma Pauperis for purposes of appellate review. On July 29,
       2015, this court granted [Appellant’s] Petition to proceed with
       the filing of his appeal In Forma Pauperis. [Appellant] filed a
       subsequent PCRA Petition on August 12, 2015. On August 18,
____________________________________________


2
   The information describes pornographic photographs and videos depicting
children as young as four years old performing sex acts on adults.
Information, 4/19/13, at Count 83.



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      2015, the court denied [Appellant’s second] PCRA Petition
      because the court lacked jurisdiction due to [Appellant’s]
      pending appeal of the undersigned’s June 14, 2015 Order
      denying [Appellant’s] April 23, 2014 PCRA Petition.

Pa.R.A.P. 1925(a) Opinion, 10/22/15, at 2–3 (emphasis added).            Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant, pro se, presents the following issues for our review:

      ISSUE-(1). WHETHER THE LOWER COURT ERRED FOR FAILURE
      TO ADDRESS APPELLANT’S ISSUE IN THAT APPELLANT’S PLEA
      OF GUILTY WAS UNKNOWINGLY AND UNINTELLIGENTLY
      ENTERED WHERE NEITHER APPELLANT’S GUILTY PLEA COUNSEL
      NOR THE TRIAL COURT EXPLAINED TO APPELLANT THE NATURE
      AND/OR ELEMENTS OF THE CRIMES CHARGED TO WHICH
      APPELLANT ENTERED HIS GUILTY PLEA AND WHETHER GUILTY
      PLEA COUNSEL’S INEFFECTIVE ASSISTANCE FOR FAILURE TO
      PROPERLY INVESTIGATE COERCED APPELLANT INTO ENTERING
      INTO A PLEA OF GUILTY WHERE APPELLANT WOULD HAVE
      RATHER OPTED TO GO TO TRIAL?

      ISSUE-(2). WHETHER THE LOWER COURT ERRED IN FINDING
      TRIAL COUNSEL NOT INEFFECTIVE FOR COUNSEL’S FAILURE TO
      FILE APPEALS ON APPEALABLE ISSUES AFTER APPELLANT
      REQUESTED COUNSEL TO FILE THE APPEALS?

      ISSUE-(3). APPELLANT RAISES SUA SPONTE THAT THE LOWER
      COURT FAILED TO AWARD PROPER TIME CREDIT TO
      APPELLANT’S SENTENCE IMPOSED FOR TIME SPENT IN
      CUSTODY?

      ISSUE-(4). APPELLANT SUA SPONTE RAISES THE ISSUE THAT
      HIS SENTENCE IS UNCONSTITUTIONAL AND ILLEGAL UNDER 18
      PA.C.S.A. § 6312(D)(1) AS DETERMINED BY THE PENNSYLVANIA
      SUPREME COURT IN COMMONWEALTH V. HOPKINS, 98 MAP
      2013 (June 15, 2015), AND ALLEYNE V. UNITED STATES, 133
      S.CT. 2151 (2013).

Appellant’s Brief at 4 (verbatim).




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       Our standard of review of a PCRA court’s denial of a petition for post-

conviction relief is well settled, as set forth as follows:

              “Our review of a PCRA court’s decision is limited to
       examining whether the PCRA court’s findings of fact are
       supported by the record, and whether its conclusions of law are
       free from legal error.” Commonwealth v. Hanible, 612 Pa.
       183, 204, 30 A.3d 426, 438 (2011) (citing Commonwealth v.
       Colavita, 606 Pa. 1, 21, 993 A.2d 874, 886 (2010)). We view
       the findings of the PCRA court and the evidence of record in a
       light most favorable to the prevailing party. Id. . . . “The PCRA
       court’s credibility determinations, when supported by the record,
       are binding on this Court; however, we apply a de novo standard
       of    review    to    the   PCRA    court’s  legal   conclusions.”
       Commonwealth v. Roney, 622 Pa. 1, 16, 79 A.3d 595, 603
       (2013).

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

       To plead and prove ineffective assistance of counsel, a petitioner must

establish:   (1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice

resulted from counsel’s act or failure to act. Commonwealth v. Stewart,

84 A.3d 701, 706 (Pa. Super. 2013) (en banc). Failure to establish any one

of these prongs will defeat an ineffectiveness claim.         Mason, 130 A.3d at

618.

       Our careful review compels the conclusion that Appellant’s second

issue is dispositive. In that claim, Appellant contends that plea counsel was

ineffective for failing to file a requested appeal, and the PCRA court erred in

concluding otherwise.




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      Our Supreme Court has held that where there is an unjustified failure

to file a requested direct appeal, the conduct of counsel falls beneath the

range of competence demanded of attorneys in criminal cases and denies

the accused the assistance of counsel guaranteed by the Sixth Amendment

to the United States Constitution and Article I, Section 9 of the Pennsylvania

Constitution, as well as the right to direct appeal under Article V, Section 9,

thus constituting prejudice and per se ineffectiveness for PCRA purposes.

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999).                 In such

circumstance, a defendant is automatically entitled to reinstatement of his

appellate rights. Id.

      A more difficult situation arises when a defendant does not clearly

express to counsel his desire to file a direct appeal. This Court addressed

such a claim in Commonwealth v. Touw, 781 A.2d 1250, 1254 (Pa. Super.

2001). Therein, the defendant conceded that he had not specifically asked

counsel to file a direct appeal.   However, relying upon the United States

Supreme Court’s decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000),

this Court found that under the facts of that case, counsel had a duty to

“consult” with Mr. Touw about a direct appeal.

      In the present case, we first observe that in its Rule 1925(a) opinion,

the PCRA court noted that Appellant raised, inter alia, an issue in his

statement of errors filed pursuant to Pa.R.A.P. 1925(b) that plea counsel

was ineffective for failing to file “or re-file” certain requested appeals.


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Pa.R.A.P. 1925(a) Opinion, 10/22/15, at 4. The Rule 1925(a) opinion listed

Appellant’s asserted eight issues in his Rule 1925(b) statement, but the

PCRA court did not address any of them in its opinion. Instead, the PCRA

court represented that “all” of Appellant’s issues raised on appeal “were

addressed in [that] court’s Pa.R.Crim.P. 907 Notice of August 22, 2014.” Id.

         Thus, we review the PCRA court’s Rule 907 notice. Therein, the PCRA

court,     relying   upon   PCRA   counsel’s   no-merit   Turner/Finley     letter,

addressed various issues Appellant raised in his pro se PCRA petition and

Rule     1925(b)     statement.    However,    contrary   to   the   PCRA   court’s

representation, its opinion is utterly devoid of any mention of Appellant’s

claim, asserted both in his PCRA petition and Rule 1925(b) statement, that

he requested a direct appeal, and none was filed. Pa.R.Crim.P. 907 Notice,

10/6/14.

         We also underscore that in his pro se PCRA petition, Appellant alleged,

inter alia, ineffective assistance of counsel. PCRA petition, 4/23/14, at 2, ¶

4 (II). Appellant averred that he “did make it known to [plea counsel] that

[Appellant] wanted all appealable issues/motions filed, to which [plea

counsel] did nothing.” Id. at 4, ¶ 7. In support, Appellant attached to his

PCRA petition Exhibit 1, which is a copy of a “General Purpose Request

Form” dated May 17, 2013, fourteen days after Appellant was sentenced,

and which is addressed to the Public Defender through the inter-county mail

system. That form states as follows:


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      Sam Encarnacion- I would like you to file any and all post-
      conviction motions available (sentence reduction, motion to
      vacate, etc.). I want to try and exhaust all remedies available to
      me at this point. I regret caving-in and taking a plea, but what’s
      done is done, I guess. I should have went with my instincts.
      The power of persuasion and the pressure placed upon me were
      too much. So now, I would like all motions possible filed—I
      know there aren’t many, but I do know there are more than a
      few. Thank you.

PCRA Petition, 4/23/14, at Exhibit 1.      The May 17, 2013 notice to plea

counsel was sent well within the thirty-day appeal period.    No appeal was

filed. Moreover, the Commonwealth acknowledges that Appellant wrote to

counsel fourteen days after entry of the guilty plea and requested counsel to

file “any and all motions on his behalf.” Commonwealth’s Brief at 2 n.2.

      On August 22, 2014, PCRA counsel filed his Turner/Finley no-merit

letter seeking to withdraw as counsel.     He noted therein that “[n]either a

post-sentence motion nor a Notice of Appeal was filed on behalf of

[Appellant].” Turner/Finley letter, 8/22/14, at 2. Counsel then listed and

discussed all of the issues Appellant raised in his pro se PCRA petition

except the claim that Appellant had asked plea counsel to file any and all

motions to which he was entitled, and plea counsel failed to take action.

      We previously delineated the relief necessitated by counsel’s failure to

file a requested appeal.   Lantzy.    We also referenced the more difficult

question when the defendant does not clearly articulate that request.

Touw.    In the present case, we find guidance in Commonwealth v.

Donaghy, 33 A.3d 12 (Pa. Super. 2011).


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      In Donaghy, the PCRA court credited the testimony of the appellant’s

counsel that the appellant never specifically asked him to file a direct appeal.

Counsel acknowledged, however, that Donaghy had sent him several letters,

at least one within the thirty-day appeal period, in which the appellant asked

for an explanation of reasons required to file an appeal and the time frame

for doing so. Id. at 16. Counsel interpreted Donaghy’s inquiry to mean that

he wanted to file a direct appeal on his own.          The PCRA court found

counsel’s testimony credible and concluded that Donaghy “failed to satisfy

his burden of proving that he did in fact request an appeal and counsel

disregarded that fact.” Id. (citation omitted).

      On appeal, this Court concluded that Donaghy’s inquiry regarding his

appellate rights “sufficiently demonstrated a desire to appeal, such that

counsel should have made a ‘reasonable effort to discover [Donaghy’s]

wishes’ as required under Flores-Ortega.”         Donaghy, 33 A.3d at 16.

Moreover, we found that counsel’s response, in which he advised Donaghy

that he “could file an appeal” within thirty days did not satisfy the

“counseling requirements.”    Id.   Therefore, we reversed the order of the

PCRA court and remanded for the reinstatement of Donaghy’s direct appeal

rights.

      We note the proviso that even “[a] deficient failure on the part of

counsel to consult with the defendant does not automatically entitle the

defendant to reinstatement of his . . . appellate rights; the defendant must


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show prejudice.” Touw, 781 A.2d at 1254. Prejudice in this context means

a defendant must show a reasonable probability that but for counsel’s

deficient failure to consult, the defendant would have sought additional

review. Id.

      Here, there are multiple factors that compel us to vacate and remand

this matter.   During the appeal period, Appellant asked counsel to file all

motions to which he was entitled. This triggered counsel’s duty to consult

with Appellant to explore his client’s desire to appeal. The record before us

is silent regarding whether counsel took such action.    Moreover, the PCRA

court represented that it had addressed all of Appellant’s issues, but this

very claim regarding Appellant’s alleged request for an appeal has been

omitted, both by PCRA counsel who withdrew representation, and by the

PCRA court.

      Under the facts of this case, we vacate the PCRA order and remand for

appointment of new counsel, who shall then review the record in full and file

an amended PCRA petition raising the above-stated claim, as well as any

additional claims.   The PCRA court shall conduct an evidentiary hearing to

determine whether plea counsel was per se ineffective for failing to file a

requested notice of appeal.     If the PCRA court so finds, it shall grant

Appellant leave to file a direct appeal nunc pro tunc. Commonwealth v.

Harris, 114 A.3d 1, 4 (Pa. Super. 2015) (“[O]nce the PCRA court finds that

the petitioner’s appellate rights have been abridged, it should grant leave to


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file a direct appeal and end its inquiry there.”) (Citing Commonwealth v.

Pate, 617 A.2d 754 (Pa. Super. 1992)); Donaghy, 33 A.3d at 14 n.5

(“Because the PCRA court granted Appellant PCRA relief in the form of a

reinstatement of his direct appeal rights nunc pro tunc, it was without

authority to reach the merits of [the a]ppellant’s remaining PCRA claim.”).

If the PCRA court concludes there was not ineffectiveness per se, it shall

address any additional PCRA claims that have been raised.     Harris, 114

A.3d at 4.

      Order vacated.   Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2016




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