J-S37026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

MIGUEL RUSSI,

                         Appellant                   No. 2250 EDA 2014


                 Appeal from the PCRA Order July 15, 2014
              In the Court of Common Pleas of Chester County
 Criminal Division at No(s): CP-15-CR-0003479-2012, CP-15-CR-0003768-
                                   2012


BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

JUDGMENT ORDER BY SHOGAN, J.:                          FILED JULY 28, 2015

      Appellant, Miguel Russi, appeals pro se from the July 15, 2014 order

denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541–9546. After careful review, and with the urging of the

trial court and the Commonwealth, we vacate the order dismissing the

petition and remand for further proceedings.

      On October 29, 2013, Appellant entered a hybrid-type guilty plea to

two counts each of robbery and conspiracy. He was sentenced that day to

an aggregate term of imprisonment of twenty-five to fifty years. Appellant

filed a motion for reconsideration of sentence on November 7, 2013, and the

Commonwealth filed a cross-motion the next day.        The trial court held a
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hearing on both motions on February 19, 2014, and denied them on

February 28, 2014.

        During the ensuing thirty-day appeal period, Appellant wrote to his

plea counsel inquiring, inter alia, about his direct appeal rights.    By letter

dated March 19, 2014, well within the appeal period, plea counsel

responded, “Regarding your direct appeal rights, those time limits have

passed. There was, however, nothing of merit to appeal in my opinion, and

any appeal would have been frivolous and denied anyway.”            Letter from

Peter Jurs, Chester County Assistant Public Defender, 3/19/14, at 1

(emphasis added) (Docket Entry 40). Appellant thereafter filed the instant

PCRA petition in which he alleged, inter alia, “Peter Jurs was ineffective for

failing to protect my appeal rights . . . .” PCRA Petition, 4/17/14, at 3.

        The PCRA court appointed counsel, who filed a no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On

June 10, 2014, the PCRA court gave notice of its intention to dismiss

Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907.       Appellant did not

respond, and on July 15, 2014, the PCRA court dismissed Appellant’s petition

and granted counsel leave to withdraw. Appellant filed a notice of appeal on

August 5, 2014. Both the PCRA court and Appellant complied with Pa.R.A.P.

1925.




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      In preparing its Pa.R.A.P. 1925(a) opinion, the PCRA court admitted as

follows:

      [W]e have had the occasion to review and reconsider the record
      in great depth. We recognize that we overlooked the merits of
      [Appellant’s] issue in his pro se Petition regarding counsel’s
      failure to preserve [Appellant’s] direct appeal rights and erred in
      our decision to summarily deny [Appellant’s] first PCRA Petition.

PCRA Court Opinion, 10/14/14, at 3.

      It is clear that:

             [o]ur Supreme Court has held that counsel’s unexplained
      failure to file a requested direct appeal constitutes ineffective
      assistance per se, such that the petitioner is entitled to
      reinstatement of direct appeal rights nunc pro tunc without
      establishing prejudice. Commonwealth v. Lantzy, 558 Pa.
      214, 226–27, 736 A.2d 564, 572 (1999). However, before a
      court will find ineffectiveness of counsel for failing to file a direct
      appeal, the petitioner must prove that he requested a direct
      appeal     and     the    counsel    disregarded      the     request.
      Commonwealth v. Bath, 907 A.2d 619 (Pa. Super. 2006).

Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011). Both

the Commonwealth and the PCRA court urge us to vacate the order

dismissing the petition and remand the matter for a hearing.           We are so

inclined.

      The order of July 15, 2014, is vacated. This case is remanded for a

hearing to determine whether Appellant requested counsel to file an appeal

from the judgment of sentence, and if so, the PCRA court shall reinstate

Appellant’s right to file a counseled appeal nunc pro tunc.

      Order vacated; case remanded. Jurisdiction is relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015




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