J-S65023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                          Appellant

                     v.

DMITRIY V. LITVINOV

                          Appellee                   No. 1771 MDA 2017


           Appeal from the PCRA Order Entered November 3, 2017
                In the Court of Common Pleas of Centre County
 Civil Division at Nos: CP-14-CR-0000364-2011, CP-14-CR-0000462-2010,
 CP-14-CR-0000464-2010, CP-14-CR-0001090-2010, CP-14-CR-0001139-
   2010, CP-14-CR-0001157-2010, CP-14-CR-0001158-2010, CP-14-CR-
 0001159-2010, CP-14-CR-0001161-2010, CP-14-CR-0001162-2010, CP-
               14-CR-0001163-2010, CP-14-CR-0001164-2010


BEFORE: SHOGAN, and STABILE, McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                        FILED JANUARY 16, 2019

      The Commonwealth of Pennsylvania appeals from the November 3,

2017 order reinstating the direct appeal rights of Appellee, Dmitriy V. Litvinov

pursuant to Litvinov’s petition under the Post Conviction Relief Act (“PCRA”)

42 Pa.C.S.A. §§ 9541-9545. We affirm.

      The record reveals that, on June 22, 2012, a jury found Litvinov guilty

of multiple counts of robbery, theft by unlawful taking, receiving stolen

property, kidnapping, recklessly endangering another person, conspiracy, and

related offenses.   On October 17, 2013, after a successful Commonwealth

appeal, the trial court resentenced Litvinov to an aggregate thirty-nine years

and four months to seventy-eight years and eight months of incarceration. In
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July of 2012, Litvinov paid attorney Alexander Z. Talmadge a $17,000.00

retainer to represent Litvinov on direct appeal.                 Talmadge entered his

appearance for Litvinov on October 18, 2012 but withdrew it on December 27,

2012 so that the public defender, David Crowley, could handle the post-

sentence motion. Talmadge told Crowley that Litvinov retained him only for

the appeal, not for the post-sentence motions, and that he would reenter his

appearance upon resolution of the post-sentence motions. Crowley handled

the post-sentence motions and provided Talmadge with paperwork to

substitute himself as counsel after the motions were denied. Talmadge never

again entered his appearance on behalf of Litvinov and did not file a direct

appeal.

      On August 20, 2015, Litvinov filed, in this Court, a pro se application for

reinstatement of his direct appeal rights. He filed his first PCRA petition in the

Centre County Court of Common Pleas on December 10, 2015.                        The PCRA

court conducted a hearing on September 8, 2017 and, on November 3, 2017

entered   an    order    reinstating   Litvinov’s     direct     appeal     rights.      The

Commonwealth filed this timely appeal. The Commonwealth argues the PCRA

court erred in granting relief because 1) Talmadge was not Litvinov’s counsel

of record at the relevant time; 2) Litvinov did not exercise due diligence in

ascertaining that Talmadge never filed a direct appeal; and 3) Litvinov failed

to file a PCRA petition within 60 days of August 8, 2012, the date on which he

admittedly     learned   of   Talmadge’s    failure    to      file   the   direct    appeal.


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Commonwealth’s Brief at 4. Finding no merit in any of these contentions, we

affirm.

      Our standard for reviewing a PCRA court’s order is well-settled:

             In PCRA appeals, our scope of review is limited to the
      findings of the PCRA court and the evidence on the record of the
      PCRA court’s hearing, viewed in the light most favorable to the
      prevailing party. Because most PCRA appeals involve questions
      of fact and law, we employ a mixed standard of review. We defer
      to the PCRA court’s factual findings and credibility determinations
      supported by the record. In contrast, we review the PCRA court’s
      legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(internal citations and quotation marks omitted) (en banc), appeal denied,

123 A.3d 331 (Pa. 2015).

      We first consider our jurisdiction. Section 9545 of the PCRA provides

that a petitioner must file his petition within one year of the finality of the

judgment of sentence. 42 Pa.C.S.A. § 9545(b)(1). Failure to comply with the

PCRA’s timeliness requirements deprives the courts of jurisdiction to entertain

a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007).

Instantly, the trial court imposed sentence on October 17, 2013. Litvinov’s

sentence became final thirty days later, when he failed to file a direct appeal.

Litvinov’s August 20, 2015 pro se petition seeking reinstatement of his direct

appeal rights was facially untimely (for reasons we will explain below, the law

treats Appellant’s pro se petition to this Court as a PCRA petition, even though

he filed it in the wrong court). Litvinov must, therefore, plead and prove the

applicability of one of the timeliness exceptions set forth in § 9545(b)(1)(i-iii).

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      The   PCRA     court   found   Litvinov’s   petition   timely   pursuant   to

§ 9545(b)(1)(ii), pursuant to which a petitioner must prove that “the facts

upon which the claim is predicated were unknown to the petitioner and could

not have been ascertained by the exercise of due diligence[.]” 42 Pa.C.S.A.

§ 9545(b)(1)(ii).    The PCRA court also found that Litvinov presented the

petition within 60 days of the date on which he learned of counsel’s failure, in

accord with § 9545(b)(2). We will not disturb the PCRA court’s findings with

regard to a PCRA petition unless the certified record provides no support for

those findings.     Commonwealth v. Williamson, 21 A.3d 236, 241 (Pa.

Super. 2011).

      Pennsylvania courts have held that counsel’s failure to perfect an appeal

qualifies as a newly discovered fact under § 9545(b)(1)(ii) because it

constitutes the abandonment by counsel of the client. Id. at 241-42; see

also, Bennett, 930 A.2d at 1272-74. In Williamson, counsel failed to file a

timely petition for allowance of appeal to the Supreme Court.          Id. at 242.

Similarly, in Bennett, the counsel failed to file an appellate brief. Bennett,

930 A.2d at 1265. The Bennett Court held that “Appellant has made sufficient

allegations to invoke subsection (b)(1)(ii). Appellant alleges that he did not

receive the review to which he was entitled through no fault of his own. […]

In such an instance, Appellant must be given the opportunity to seek the

review to which he or she was entitled.” Id. at 1274. That rationale applies

with full force here. Litvinov retained Talmadge and paid him $17,000.00 to


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represent him on direct appeal. After the trial court denied Litvinov’s post-

sentence motions,1 Talmadge took no action on Litvinov’s behalf, thus

depriving him of the appellate review to which he was entitled.

       Next, we must determine whether Litvinov acted with due diligence in

learning of Talmadge’s failure. The record reveals that Litvinov sent Talmadge

a letter on January 11, 2013, informing Talmadge of the trial court’s denial of

Litvinov’s post-sentence motion on January 4, 2013. N.T. Hearing, 9/8/17, at

60, Exhibit 16.      In that letter, Litvinov expressed his understanding that

Talmadge would represent him going forward on direct appeal. Id. For his

part, Crowley confirmed with Litvinov that Talmadge would represent him on

direct appeal. Id. at 16. In response to Talmadge’s request as to Litvinov’s

whereabouts, Crowley informed Talmadge that Litvinov was at SCI Forrest

due to some construction at SCI Rockview. Id.

       On May 19, 2013, Talmadge wrote a letter to Litvinov stating that he

was preparing Litvinov’s appeal.           Id. at Exhibit 18.   In October of 2013,

Litvinov    called    Talmadge       to    discuss   his   resentencing   after   the

Commonwealth’s successful appeal. Id. at 66. Litvinov contacted Talmadge

again in midsummer of 2014.               Id. at 67-68.    Talmadge did not accept

Litvinov’s calls after that, but Talmadge spoke to Litvinov’s family, and they



____________________________________________


1  Talmadge filed a premature notice of appeal before he realized the post-
sentence motions were not yet argued. He withdrew that appeal and took no
further action in this case.

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kept Litvinov apprised of Talmadge’s communications. Id. at 68. The record

confirms that Talmadge met with Litvinov’s sister and father at various times

in 2013, 2014, and 2015. Id. at 46, 69. Litvinov also sent Talmadge letters

in February and May of 2015, checking on, among other things, the status of

his appeal. Id. at 68-69. Approximately one month before Litvinov wrote the

May 13, 2015 letter, Talmadge met with Litvinov’s father and/or sister and

represented that he had not heard anything from the appellate court. Id. at

69. Talmadge finally wrote to Litvinov on July 11, 2015, but said nothing

about any pending appeal. Id. at 69-70.

      On July 21, 2015, Litvinov wrote a letter to his Court, asking about the

status of his appeal.   Id. at 71, Exhibit 23.     On August 5, 2015, Litvinov

received from this Court a docketing statement indicating that no direct appeal

was ever filed.   Shortly thereafter, Litvinov mailed to this Court a pro se

application for the right to appeal nunc pro tunc. A return receipt indicates

that personnel from the Administrative Office of Pennsylvania Courts received

Litvinov’s filing on August 20, 2015. Id. at 72-73, Exhibit 25. The record

does not indicate that the Superior Court Prothonotary’s office ever received

Litvinov’s application or filed it. On November 2, 2015, Litvinov wrote a letter

to this Court seeking an update on the status of his nunc pro tunc appeal. Id.

at 73. Our Prothonotary’s office responded on November 6, 2015, notifying

Litvinov that no appeal was pending, and that any notice of appeal improperly

filed in this Court would have been forwarded to the trial court for proper filing.


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Id. at 73-74. Subsequently, on December 21, 2015, Litvinov filed a pro se

PCRA petition in the Centre County Court of Common Pleas.

      In light of the foregoing facts, we discern no error in the PCRA court’s

conclusion that Litvinov acted with due diligence. Litvinov paid Talmadge’s

retainer, asked for a direct appeal, and maintained contact with Talmadge

through the summer of 2015. As late as April of 2015, Talmadge represented

to Litvinov’s family that he had not heard anything from the appellate court,

thus implying that an appeal was pending.        After receiving a letter from

Talmadge, in July of 2015, that made no mention of an appeal, Appellant

wrote to this Court to ascertain the status of the appeal. He received a docket

sheet, printed on August 5, 2015, indicating that no appeal was pending. In

summary, Litvinov retained and paid Talmadge to represent him on direct

appeal, and for more than a year and a half after Litvinov’s resentencing,

Talmadge’s communications with Litvinov and his family, regarding the status

of the appeal, ranged from nonresponsive to misleading. The late filing of the

instant PCRA petition was not due to Litvinov’s lack of diligence.

      Next, we must consider whether Litvinov filed the instant petition within

60 days of the first date on which he could have filed it, in accord with

§ 9545(b)(2).   As set forth above, Litvinov filed, in this Court, a pro se

application for reinstatement of his direct appeal rights.    A return receipt

indicates that the Administrative Office of Pennsylvania Courts received the

filing on August 20, 2015, only fifteen days after this Court printed a docket


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sheet in response to Litvinov’s inquiry as to the status of his appeal. 2 Well-

settled law indicates that any collateral document requesting relief available

under the PCRA will be treated as a PCRA petition.           42 Pa.C.S.A. § 9542;

Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001). Thus,

the PCRA court was correct in concluding that Litvinov’s August 20, 2015 filing,

which requested relief available under the PCRA, should be treated as a PCRA

petition.

       Concerning Litvinov’s mistake in filing his application with this Court

rather than the Centre County Court of Common Pleas, the Judiciary Code

provides the following:

       (a) General rule.--If an appeal or other matter is taken to or
       brought in a court or magisterial district of this Commonwealth
       which does not have jurisdiction of the appeal or other matter, the
       court or magisterial district judge shall not quash such appeal or
       dismiss the matter, but shall transfer the record thereof to the
       proper tribunal of this Commonwealth, where the appeal or other
       matter shall be treated as if originally filed in the transferee
       tribunal on the date when the appeal or other matter was first
       filed in a court or magisterial district of this Commonwealth. A
       matter which is within the exclusive jurisdiction of a court or
       magisterial district judge of this Commonwealth but which is
       commenced in any other tribunal of this Commonwealth shall be
       transferred by the other tribunal to the proper court or magisterial
       district of this Commonwealth where it shall be treated as if
       originally filed in the transferee court or magisterial district of this
       Commonwealth on the date when first filed in the other tribunal.


____________________________________________


2 Litvinov indicates he received the docket sheet on August 8, 2015. Litvinov’s
Brief at 26. We have not been able to confirm that date in the record. For
purposes of our analysis under § 9545(b)(2), Litvinov’s petition was timely
regardless of whether we charge him with notice as of August 5 or August 8
of 2015.

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42 Pa.C.S.A. § 5103(a).     Relying on § 5103(a), the PCRA court deemed

Litvinov’s PCRA petition filed on August 20, 2015 the date of its receipt in the

Administrative Office of Pennsylvania Courts. For reasons not clear from the

record, Litvinov’s August 20, 2015 filing was never received by the Superior

Court Prothonotary, nor was it forwarded to the Centre County Court of

Common Pleas for proper filing in accord with § 5103(a).          Under these

circumstances, we agree with the PCRA court’s conclusion that Litvinov filed a

timely petition for permission to file an appeal nunc pro tunc, and that the

apparent mishandling of the August 20, 2015 filing resulted from a breakdown

in the courts not attributable to Litvinov. In light of all of the foregoing, we

conclude the PCRA court properly exercised jurisdiction over Litvinov’s petition

pursuant to 42 Pa.C.S.A. § 9545(b)(1)(ii) and (2).

      We now turn to the merits. An unjustified failure to file a requested

direct appeal results in presumed prejudice. Commonwealth v. Lantzy, 736

A.2d 554, 571-72 (Pa. 1999).      In such a case, the accused is entitled to

reinstatement of his direct appeal rights without pleading and proving a claim

of ineffective assistance of counsel in accord with Strickland v. Washington,

466 U.S. 668 (1984) and Commonwealth v. Pierce, 527 A.2d 973 (Pa.

1987). Id. at 572-73. Instantly, as we have already discussed, the record

confirms that Litvinov retained Talmadge to represent him on direct appeal,

and Talmadge failed to file an appeal. The Commonwealth does not dispute

those facts, but argues that Litvinov is not entitled to relief because Talmadge


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was not his counsel of record at the pertinent time.          In essence, the

Commonwealth argues that Litvinov has no recourse because the lawyer he

retained abandoned him without entering an appearance. The Commonwealth

cites no law for this proposition, and we have uncovered none. As the PCRA

court put it, “[i]t would be nonsensical to hold that because the attorney hired

to file the appeal failed to enter an appearance Petitioner has waived his right

to an appeal.” PCRA Court Opinion, 11/3/17, at 8. Uncontroverted evidence

establishes a lawyer/client relationship between Litvinov and Talmadge,

inasmuch as Litvinov paid Talmadge a $17,000.00 retainer to represent him

on direct appeal.

      For his part, Talmadge testified that Litvinov’s sister informed him that

they hired another attorney to handle Litvinov’s appeal, and that he was

directed to focus his attention on Litvinov’s deportation issues.     Litvinov’s

sister, Alena Litvinova, testified at the PCRA hearing and denied giving

Talmadge any such directive. N.T. Hearing, 9/8/17, at 57. She testified that

Talmadge was supposed to handle both the appeal and the deportation

proceeding. Id. The PCRA court accepted Litvinova’s testimony and found

Talmadge not credible. PCRA Court Opinion, 11/3/17, at 9.

      In summary, the evidence of record supports the PCRA court’s findings

that Talmadge was Litvinov’s lawyer for purposes of direct appeal, and that

Talmadge abandoned Litvinov. Under these circumstances, Litvinov is entitled

to reinstatement of his direct appeal rights.


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         The Commonwealth seeks to avoid this result based on § 9543(b), which

provides that PCRA relief should be denied were the petitioner’s delay in filing

the petition prejudice’s the Commonwealth’s ability to respond to the petition

or to retry the petitioner. 42 Pa.C.S.A. § 9543(b). The Commonwealth alleges

its ability to retry Litvinov will be prejudiced because the trial court already

has ordered the return of property that was pertinent evidence at Litvinov’s

trial.    The Commonwealth’s argument rests largely on its assertion that

Litvinov failed to exercise due diligence, an assertion we already have

rejected. Indeed, § 9543(b) expressly provides that “[t]his subsection does

not apply if the petitioner shows that the petition is based on grounds of which

the petitioner could not have discovered by the exercise of reasonable

diligence before the delay became prejudicial to the Commonwealth.”          42

Pa.C.S.A. § 9543(b). In light of our conclusion that the delay in filing this

petition was not the result of Litvinov’s lack of diligence, § 9543(b) is

inapplicable.

         Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/16/2019



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