J-S70014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

ANTONIO DE JESUS ORTIZ-SERRANO,

                            Appellee                  No. 458 EDA 2015


                 Appeal from the PCRA Order February 4, 2015
                in the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0003601-2013


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED DECEMBER 18, 2015

        The Commonwealth of Pennsylvania appeals from the PCRA court’s

February 4, 2015 order granting the pro se petition of Appellee, Antonio De

Jesus Ortiz-Serrano, and reinstating his right to file a post-sentence motion

or direct appeal nunc pro tunc. Specifically, the Commonwealth argues that

the PCRA court erred because it did not follow the applicable law,

procedures, and rules set forth in the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546, and the Pennsylvania Rules of Criminal Procedure.

The PCRA court concedes that it erred. We vacate and remand.

        The PCRA court aptly summarized the factual and procedural history of

this case as follows:
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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             On March 21, 2014, [Appellee] pled guilty to homicide by
       vehicle while driving under the influence and accidents involving
       death or personal injury while not properly licensed. He was
       sentenced to five (5) to ten (10) years[’] incarceration in
       accordance with the plea agreement.

              On January 30, 2015, [Appellee] filed a Petition for Post
       Conviction Relief/Collateral Act (Petition for Reinstatement of
       Right to File Post Sentence Motion or Direct Appeal Rights, Nunc
       Pro Tunc). On February [4], 2015, the court granted [Appellee]
       the right to file a post-sentence motion or notice of appeal. . . .

(PCRA Court Opinion, 7/02/15, at 1) (some capitalization omitted).           This

timely appeal followed.1

       The Commonwealth raises the following question for our review:

       I. Whether the [PCRA] court erred in granting [Appellee’s] PCRA
       petition by reinstating the right to file a post-sentence motion
       and direct appeal nunc pro tunc where [Appellee] pled guilty and
       received an agreed upon sentence?

(Commonwealth’s Brief, at 4) (most capitalization omitted).

       In its issue, the Commonwealth claims that the court erred in granting

Appellee’s petition without complying with the requirements of the PCRA.

(See Commonwealth’s Brief, at 9-11). The Commonwealth argues that the

PCRA court’s failure to do so resulted in its being denied an opportunity to

respond to the PCRA petition, or fulfill its responsibilities pursuant to the

Crime Victims Act, 18 P.S. §§ 11.101-11.5102. (See Commonwealth’s Brief

at 9). Moreover, it argues that “[t]rial counsel did not have the opportunity
____________________________________________


1
  On March 10, 2015, pursuant to the court’s order, the Commonwealth filed
its statement of matters complained of on appeal. See Pa.R.A.P. 1925(b).
The court filed its opinion on July 2, 2015. See Pa.R.A.P. 1925(a).



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to respond to the attack on her professional competence[,]” and “[Appellant]

was denied the right to have counsel appointed to investigate his claims, file

an [a]mended PCRA petition if necessary to preserve [his] claims, and

develop a factual record if necessary to resolve [his] claims.” (Id. at 9-10).

      In its 1925(a) opinion, the PCRA court agrees that

             [t]he court viewed [Appellee’s] filing as a petition for
      reinstatement of right, nunc pro tunc, and not as a PCRA
      petition. While the court had good intentions and was thinking
      of judicial economy when it entered its order, the court
      acknowledges that it was error to not treat [Appellee’s] filing as
      a PCRA petition. The court, therefore, respectfully requests that
      the Superior Court remand this matter back to the trial court so
      that [Appellee’s] petition can properly be decided under the
      [PCRA].

(PCRA Ct. Op., at 1-2) (citation and some capitalization omitted). We agree.

      “Our standard of review in an appeal from the grant or denial of PCRA

relief requires us to determine whether the ruling of the PCRA court is

supported by the record and is free from legal error.” Commonwealth v.

Lesko, 15 A.3d 345, 358 (Pa. 2011) (citation omitted).

      “[T]he PCRA provides the sole means for obtaining state collateral

relief. Where, as here, a defendant’s post-conviction claims are cognizable

under the PCRA, the common law and statutory remedies now subsumed by

the PCRA are not separately available to the defendant.” Commonwealth

v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (citations omitted). The PCRA, in

pertinent part, provides that a petitioner is eligible for relief under the PCRA

where “(2) [his] conviction or sentence resulted from one or more of the


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following: . . . (ii) Ineffective assistance of counsel . . . .” 42 Pa.C.S.A. §

9532(2)(ii).

      In Hall, the Supreme Court of Pennsylvania considered whether a

court’s grant of an appellee’s request for reinstatement of his direct appeal

rights was an error of law.      See Hall, supra at 1233-36.         There the

Supreme Court held that

      [a]ppellee . . . sought restoration of his direct appeal rights nunc
      pro    tunc    premised upon his trial counsel’s alleged
      ineffectiveness. Since such a claim is cognizable under the
      PCRA, . . . the trial court had no residual common law or
      statutory authority to entertain the claim except under the
      strictures of the PCRA. . . .

Id. at 1236.

      Here, similarly, Appellee filed a PCRA petition seeking reinstatement of

his right to file a post-sentence motion or a direct appeal nunc pro tunc

because, he alleged, his trial counsel was ineffective in not filing his direct

appeal.   (See PCRA Ct. Op., at 1; see also Petition for Post[-]Conviction

Relief/Collateral Act, 2/02/15, at unnumbered pages 1-2). Because such a

claim is cognizable under the PCRA, the court was limited to reviewing

Appellee’s petition in accordance with the laws, rules, and procedures

required by the PCRA. See Hall, supra at 1236.

      Accordingly, we are constrained to conclude that the PCRA court erred,

as it has conceded, in granting Appellee’s petition.    We    vacate the PCRA

court’s February 4, 2015 order granting reinstatement of Appellee’s direct

appeal rights nunc pro tunc. We remand this matter to the PCRA court for

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disposition in accordance with the PCRA, and in accordance with this

decision.

      Order vacated.   Case remanded to the PCRA court for disposition in

accordance with this decision. Jurisdiction relinquished.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2015




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