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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

ROBERTO MORALES

                             Appellant                  No. 39 EDA 2014


                Appeal from the PCRA Order December 13, 2013
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0001695-2008

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 28, 2017

        Appellant, Roberto Morales, appeals from the order entered in the

Philadelphia County Court of Common Pleas denying his amended Post

Conviction Relief Act1 (“PCRA”) petition as meritless. Appellant argues that

the PCRA court erred in refusing to hold an evidentiary hearing concerning

whether Appellant’s trial counsel was ineffective for failing to honor

Appellant’s request to file a direct appeal. For the reasons articulated below,

we vacate the order dismissing Appellant’s amended PCRA petition and

remand this case for further proceedings.

        The PCRA court summarized the evidence in this case as follows:

              At approximately 11:40 p.m. on November 2, 2006, the
           police pulled over [Appellant] for driving his commercial
           box truck without working brake lights, and for making a

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-46.
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          turn without using his turn signal. The officers approached
          the vehicle and asked [Appellant] for his identification, at
          which point he produced an identification card from Puerto
          Rico with a false name of Jose Romero. Opening the
          driver’s side door of the truck, police observed a white
          Ziploc packet containing crack cocaine sitting on
          [Appellant’s] lap. The officers removed [Appellant] from
          the truck and observed another plastic bag on the floor of
          the truck near [his] feet. This bag contained seventeen
          (17) baggies of crack cocaine. The officers also recovered
          a fanny pack from the cab of the truck containing forty
          (40) packets of crack cocaine, forty–eight (48) methadone
          tablets, nineteen (19) bundles of heroin packets containing
          a total of two hundred and sixty-seven (267) packets of
          heroin, along with $1,155 in cash.

PCRA Ct. Op., 6/24/14, at 2-3 (record citations omitted).

        Appellant was charged with various drug-related offenses.        On April

22, 2008, following a bench trial, the trial court found Appellant guilty of

possession of a controlled substance,2 possession of a controlled substance

with intent to deliver3 and possession of drug paraphernalia.4 On March 24,

2009, the trial court sentenced Appellant to seven to fourteen years’

imprisonment, which it noted was the mandatory minimum for Appellant’s




2
    35 P.S. § 780-113(a)(16).
3
    35 P.S. § 780-113(a)(30).
4
    35 P.S. § 780-113(a)(32).




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crime.5 N.T., 3/24/09, at 4. Appellant did not file post-sentence motions or

a direct appeal.

      On June 22, 2009, Appellant timely filed a pro se PCRA petition

claiming that trial counsel was ineffective for failing to file a direct appeal on

his behalf. PCRA Pet., 6/22/09, at 3.         The PCRA court appointed counsel,

who filed an amended PCRA petition on January 24, 2012 claiming, inter

alia, that trial counsel was ineffective for failing to file post-sentence

motions6 or to honor Appellant’s request to file a direct appeal. Am. PCRA

Pet., 1/24/12, ¶¶ 3, 4. With regard to the latter claim, PCRA counsel wrote

that Appellant “requested an appeal of his case. He did not understand the

legal distinction between post[-]sentence motions and a notice of appeal.

However, i[t] is clear that [Appellant] requested such a hearing on his

behalf.” Id., ¶ 10.

      On February 8, 2013, the Commonwealth filed a motion to dismiss the

amended     PCRA      petition.   The   Commonwealth       disputed   Appellant’s

contention that he had requested trial counsel to file an appeal:

         [I]n [two] certifications dated March 3, 2011 and October
         14, 2011, which were signed by [Appellant], [Appellant]
         states only that he requested the filing of post[-]sentence

5
  Presumably, the trial court was referring to 18 Pa.C.S. § 7508, which
prescribes mandatory minimum sentences for certain drug-related offenses,
including possession with intent to deliver a controlled substance.
6
  In this appeal, Appellant no longer claims that trial counsel was ineffective
for failing to file post-sentence motions. He only contends that counsel was
ineffective for failing to file a direct appeal.



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           motions. [Appellant’s] certification says nothing about
           [Appellant] requesting that counsel file an appeal. Indeed,
           the pre-prepared certification forms denote “Filing of
           Notice of Appeal to Superior Court” as one of the choices
           which [Appellant] could have selected from a checklist of
           actions supposedly requested by him of prior counsel.
           [Appellant] specifically did not make that selection on
           either form—that is, he did not select the checkbox which
           would indicate that he requested counsel to file an appeal.

Cmwlth. Mot. To Dismiss, 2/8/13, at 6-7 (emphasis in original).              The

Commonwealth attached the two certifications as exhibits to its motion to

dismiss.

      On November 8, 2013, the PCRA court entered a Pa.R.Crim.P. 907

notice of intent to dismiss the amended PCRA petition without a hearing.

The notice stated that the court intended to dismiss the petition because

“the issues raised in the [amended PCRA] petition are without merit.” Id.

The notice did not mention any deficiencies in Appellant’s certifications.

      Appellant filed a pro se response in opposition to the Rule 907 notice

on December 2, 2013. On December 13, 2013, the PCRA court dismissed

Appellant’s amended PCRA petition. This timely appeal followed.7


7
  During this appeal, we have remanded this case four times to the PCRA
court. The first remand was in response to Appellant’s motion in this Court
to represent himself on appeal. We remanded the case for a hearing under
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), concerning whether
Appellant knowingly, intelligently and voluntarily waived his right to
appellate counsel. The PCRA court held that Appellant was entitled to
represent himself on appeal pro se. The second remand was for the PCRA
court to prepare an opinion addressing the issues that Appellant raised in his
pro se statement of issues complained of on appeal. The third remand took
place because Appellant, in an apparent change of heart, requested the



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      Appellant raises two issues in this appeal:

         1. Did the PCRA court commit an abuse of discretion by
         denying a hearing on Appellant’s claim alleging that trial
         counsel was ineffective for failing to file a direct appeal?

         2. Are the mandatory sentences imposed upon [Appellant]
         illegal pursuant to Alleyne v. United States[, 133 S.Ct.
         2151 (2013)]?

Appellant’s Brief, at 4.

      Appellant first argues that the PCRA court abused its discretion in

denying his PCRA petition without an evidentiary hearing, because a

question of fact exists as to whether Appellant’s attorney disregarded his

request to file a direct appeal. As discussed in footnote 9, infra, resolution

of this issue will affect whether Appellant has the right to seek relief under

Alleyne, the second issue in this appeal.

      Appellant argues:




appointment of counsel to represent him on appeal. We remanded the case
for the PCRA court to decide Appellant’s request. The PCRA court denied
Appellant’s motion for appellate counsel.     Appellant filed a motion for
reconsideration in this Court, and we ordered the PCRA court to appoint
counsel for Appellant. The PCRA court appointed appellate counsel, who
filed a motion in this Court for a fourth remand so that he could file a
supplemental statement of matters complained of on appeal in the PCRA
court. On September 16, 2015, we remanded the case for a fourth time,
granted counsel leave to file a supplemental statement of matters
complained of on appeal, and directed the PCRA court to file a supplemental
opinion addressing the issues raised in the supplemental statement. On
October 14, 2015, counsel filed his supplemental statement, and on March
1, 2016, the PCRA court filed a supplemental opinion.




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         [Appellant], in his pro se petition, and appointed PCRA
         counsel, in her amended petition, both asserted that
         [A]ppellant had asked [trial] counsel to file a direct appeal
         and that counsel failed to file one.          Despite these
         averments, the PCRA [c]ourt denied him a hearing based
         on two certificates [A]ppellant submitted pro se. This was
         error because, as PCRA counsel explained, [A]ppellant was
         confused about the law and believed that by indicating that
         he asked [trial] counsel to file post-sentence motions, he
         also was claiming that counsel was ineffective for not filing
         a requested direct appeal.

Appellant’s Brief at 13-14.

      The PCRA court reasoned with regard to this issue:

         [T]he record refutes that [Appellant] asked his [trial]
         counsel to file a direct appeal. On March 3, 2011 and
         October 14, 2011, [Appellant] signed certifications
         regarding what he asked his attorney to file for him.
         Although “Filing of Notice of Appeal to Superior Court” was
         an option for [Appellant] to check, [Appellant] only
         checked “Filing of Post[-]Sentence Motions.” Additionally,
         defendant’s Supplemental Amended Petition for PCRA
         Relief states that [Appellant] requested an appeal, but the
         supplemental petition does not allege any facts as to when
         he requested that his attorney file an appeal. . .
         [Appellant] has the burden of proving that he asked his
         attorney to file an appeal. . . The supplemental amended
         petition also alleges that [Appellant] did not understand
         the distinction between [post-sentence] motions and a
         notice of appeal.     However, on his October 14, 2011
         certification, [Appellant] stated that he directed his
         attorney to file [post-sentence] motions during sentencing.
         However, the notes of testimony for sentencing do not
         indicate that [Appellant] asked his counsel to file [post-
         sentence] motions or to appeal his sentence.

PCRA Ct. Op., 3/1/16, at 4-5. We conclude that relief is due.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are



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supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted). When a PCRA

petitioner alleges ineffective assistance of counsel, counsel is presumed to

have provided effective representation unless the petitioner pleads and

proves that: (1) the underlying claim is of arguable merit; (2) counsel had

no reasonable basis for his or her conduct; and (3) the petitioner was

prejudiced by counsel’s action or omission. Commonwealth v. Spotz, 84

A.3d 294, 311 (Pa. 2014). “In order to meet the prejudice prong of the

ineffectiveness standard, a defendant must show that there is a reasonable

probability that but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Commonwealth v. Reed, 42 A.3d

314, 319 (Pa. Super. 2012), appeal denied, 42 A.3d 314 (Pa. 2015) (citation

omitted). A claim of ineffective assistance of counsel will fail if the petitioner

does not meet any of the three prongs. Commonwealth v. Simpson, 66

A.3d 253, 260 (Pa. 2013). “The burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

      During PCRA proceedings, the judge must “promptly review [a PCRA]

petition, any answer by the attorney for the Commonwealth, and other

matters of record relating to the defendant’s claim(s).” Pa.R.Crim.P. 907(1).

“When a petition for post-conviction collateral relief is defective as

originally filed, the judge shall order amendment of the petition,

indicate the nature of the defects, and specify the time within which an



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amended petition shall be filed.”    Pa.R.Crim.P. 905(B) (emphasis added).

The purpose of this rule is “to provide PCRA petitioners with a legitimate

opportunity to present their claims to the PCRA court in a manner sufficient

to avoid dismissal due to a correctable defect in claim pleading or

presentation.”   Commonwealth v. McGill, 832 A.2d 1014, 1024 (Pa.

2003).

      Furthermore, the judge shall hold an evidentiary hearing “when the

[PCRA] petition or the Commonwealth’s answer, if any, raises material

issues of fact.” Pa.R.Crim.P. 908(a)(2). If, however,

         the judge is satisfied . . . that there are no genuine issues
         concerning any material fact and that the defendant is not
         entitled to post-conviction collateral relief, and no purpose
         would be served by any further proceedings, the judge
         shall give notice to the parties of the intention to dismiss
         the petition and shall state in the notice the reasons
         for the dismissal. The defendant may respond to the
         proposed dismissal within 20 days of the date of the
         notice.    The judge thereafter shall order the petition
         dismissed, grant leave to file an amended petition, or
         direct that the proceedings continue.

Pa.R.Crim.P. 907(1) (emphasis added).      The clear intent of this rule is to

provide petitioners with the opportunity to point out why their petitions state

valid grounds for relief or to seek leave to correct technical defects in their

petitions.

      In Pennsylvania, every criminal defendant has a constitutional right to

file a direct appeal.   Pa. Const., Art. V, § 9.   While the defendant may

“relinquish his appellate rights, this can only be accomplished through a



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knowing, voluntary and intelligent waiver.”          Commonwealth v. Lantzy,

736 A.2d 564, 572 (Pa. 1999). An attorney’s failure to file an appeal despite

his client’s request constitutes ineffectiveness per se. Id. at 571.

         Appellant argues in this appeal that trial counsel was ineffective for

ignoring his request to file a direct appeal.           The PCRA court rejected

Appellant’s argument on the ground that Appellant’s certifications merely

state that he asked his attorney to file post-sentence motions, but not an

appeal. PCRA Ct. Op., 3/1/16, at 4-5.

         We hold that the PCRA court failed to give Appellant adequate notice

of its concern with his certifications.         There were obvious discrepancies

between Appellant’s original and amended PCRA petitions, which stated that

Appellant asked his attorney to file an appeal, and his two certifications,

which did not. Indeed, in his amended PCRA petition, Appellant stated that

he checked the box marked “Filing of Post[-]Sentence Motions” in his

certifications because he did not understand the difference between post-

sentence motions and a direct appeal. The PCRA court should have notified

Appellant about these discrepancies either when it reviewed Appellant’s

original PCRA petition, Pa.R.Crim.P. 905(B), or when it issued its notice of

intent     to   dismiss   the   amended    PCRA    petition   without   a   hearing.

Pa.R.Crim.P. 907(1). The court, however, did not order Appellant to correct

these discrepancies when it reviewed Appellant’s original petition. Moreover,

in its Rule 907 notice, the court failed to mention the defect in Appellant’s



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certifications, stating only that “the issues raised in the [amended PCRA]

petition are without merit.”

      We conclude that the PCRA court’s failure to provide adequate notice

under Rules 905(B) or 907(1) prejudiced Appellant.        If Appellant’s trial

counsel actually failed to file a direct appeal despite Appellant’s request,8

Appellant has a meritorious claim for relief under the PCRA.    See Lantzy,

736 A.2d at 571. Proper notice by the court would have given Appellant the

opportunity to correct the foregoing discrepancies and might well have

entitled him to an evidentiary hearing on his claim of ineffective assistance.

Moreover, had the PCRA court found that counsel was ineffective for failing

to file a direct appeal, it would have reinstated Appellant’s direct appeal

rights, which in turn would have enabled Appellant to seek a new sentencing

hearing under Alleyne and its progeny.9


8
  We express no view on the veracity of Appellant’s claims that he requested
trial counsel to file a direct appeal.
9
  In Alleyne, a decision issued four years after Appellant’s judgment of
sentence, the United States Supreme Court held that, other than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory minimum must be submitted to a jury and proved
beyond a reasonable doubt. Id., 133 S.Ct. at 2160. Pursuant to Alleyne,
this Court has held that 18 Pa.C.S. § 7508—the statute that the trial court
presumably invoked when sentencing Appellant—is unconstitutional.
Commonwealth v. Fennell, 105 A.3d 13, 16-20 (Pa. Super. 2014), appeal
denied, 121 A.3d 494 (Pa. 2015). Retroactive relief under Alleyne is not
available to PCRA petitioners. See Commonwealth v. Washington, 142
A.3d 810, 820 (Pa. 2016) (“Alleyne does not apply retroactively to cases
pending on collateral review”). Relief under Alleyne is available, however,
in cases on direct appeal. See Commonwealth v. Barnes, -- A.3d --,



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      Accordingly, we vacate the PCRA court’s order, remand this case, and

grant Appellant leave to file a certification within thirty days of the date of

this memorandum relating to whether, prior to expiration of the direct

appeal period, he requested trial counsel to file a direct appeal. The PCRA

court shall (1) review this certification in conjunction with the record, (2)

hold an evidentiary hearing if necessary under Pa.R.Crim.P. 908, and (3)

take all further appropriate steps required under the Rules of Criminal

Procedure.

      Order vacated.   Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/2017




2016 WL 7449232, *5 (Pa., Dec. 28, 2016). Therefore, Appellant’s right to
seek relief under Alleyne rises or falls on whether he is entitled to
reinstatement of his direct appeal rights.



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