J-S55008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CLYDE PATRICK,

                        Appellant                   No. 1829 EDA 2013


                 Appeal from the PCRA Order May 10, 2013
            In the Court of Common Pleas of Philadelphia County
 Criminal Division at No(s): MC-51-CR-0049140-2009, CP-51-CR-0001537-
                                   2010


BEFORE: BOWES, SHOGAN, and OTT, JJ.

MEMORANDUM BY BOWES, J.:                       FILED SEPTEMBER 12, 2014

      Clyde Patrick appeals from the order entered by the court below

denying his first counseled PCRA petition. We affirm.

      On October 23, 2009, police were conducting surveillance in the 2100

block of Darien Street, Philadelphia. Police observed Appellant engage in a

series of hand-to-hand transactions.      After the last transaction, police

effectuated a traffic stop of an individual whom they witnessed participate in

the apparent drug sale.     Police recovered one packet of crack cocaine.

Based on this information and the observations of the police, the police

secured a search warrant for 2170 North Darien Street.         The residence

appeared abandoned, except for a squatter in a makeshift bedroom. Police

did not recover any drugs from the property.
J-S55008-14


       Appellant, who was not a citizen of this country, was charged with



non-jury trial, the court found Appellant guilty of PWID cocaine and

possession of cocaine on June 27, 2012. The court sentenced Appellant that

same day to three years probation. Appellant did not file a direct appeal,

but on December 14, 2012, filed a counseled PCRA petition requesting his

direct appeal rights be restored.          Thereafter, Appellant filed an amended

petition on February 15, 2013, and the court conducted an evidentiary

hearing on May 10, 2013. Both trial counsel and Appellant testified at the

                                                                        me date.

However, the court failed to comply with Pa.R.Crim.P. 908(E), which

requires the PCRA court to advise the petitioner of his right to appeal within

thirty days.

       Appellant filed a motion for reconsideration on May 17, 2013.         The

court scheduled a hearing on that motion and heard argument on June 20,

2013, and denied the motion.1 Appellant filed the instant appeal on June 25,

2013. The court did not direct Appellant to file a concise statement of errors

____________________________________________


1
   The record does not contain a scheduling order. However, both the
Commonwealth and PCRA counsel appeared for a June 20, 2013 hearing,
which is transcribed and part of the record. We recognize that jurisdictional
issues cannot be waived, but note that at no point did the Commonwealth
argue that the PCRA court lacked jurisdiction to consider the reconsideration
motion, nor did the PCRA court suggest as such.




                                           -2-
J-S55008-14


complained of on appeal, but did author a cursory Pa.R.A.P. 1925(a) opinion.



This Court entered an order on July 3, 2013, directing Appellant to show

cause as to why his appeal should not be quashed as untimely. Appellant

filed a response, and this Court deferred resolution to this panel. Appellant

now presents two issues for our review.2

       1. Is the appellant entitled to review of his appeal from the
          dismissal of his PCRA petition where the notice of appeal was
          timely?

       2. Is the appellant entitled to post-conviction relief in the form
          of the grant of leave to file a direct appeal nunc pro tunc?



       Appellant argues that the PCRA court granted his motion for

reconsideration, which tolled the period for filing his appeal. In this respect,

Appellant notes that the court held a hearing on the reconsideration motion,

heard argument on the motion, and then denied him relief on June 20, 2013.

Accordingly, he maintains that his June 25, 2013 notice of appeal was

timely.    In the alternative, Appellant posits that a breakdown in the judicial

system occurred.        He notes that the PCRA court failed to comply with

Pa.R.Crim.P. 908(E), and nothing in the record demonstrates that he was

____________________________________________


2
  We note that Appellant is represented by different PCRA counsel on appeal
than below. Original PCRA counsel was retained, and original substitute
PCRA counsel was appointed for this appeal. That attorney, however,
withdrew, and the PCRA court appointed current counsel.



                                           -3-
J-S55008-14


aware of the appeal period.     In support he relies on Commonwealth v.

Meehan, 628 A.2d 1151 (Pa.Super. 1993). Therein, the petitioner filed an

appeal from a PCRA petition that was untimely. However, we held that since

the court did not inform the petitioner of his appellate rights, we would not

quash the appeal. The Meehan Court ruled that way despite setting forth

that the petitioner therein was experienced with the appellate system and

knew his appellate rights.



appeal is untimely and should be quashed. We disagree.     Here, not only did

the PCRA court err in failing to follow Pa.R.Crim.P. 908(E), it proceeded to



and entertained that motion before denying it. While no order exists in the

record where the PCRA court expressly granted reconsideration, we agree

that a breakdown in the judicial system occurred. The PCRA court not only

did not inform Appellant of his appellate rights, it compounded that error by

scheduling a hearing on the reconsideration motion more than thirty days

from the issuance of its final order. In doing so, it appeared to grant the

motion to reconsider. Accordingly, we decline to quash this appeal.

        Nonetheless, Appe                                Our review in PCRA



light   most   favorable    t

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).


                                    -4-
J-S55008-14


This review is limited to the evidence of record and the factual findings of

the PCRA court. Id

PCRA court and will not disturb those findings unless they have no support in

            Id.

error and is supported by record evidence, we will not disturb its ruling. Id.

Nonetheless, where t

review is de novo                                            Id.

      Appellant contends that trial counsel was per se ineffective in failing to

file a direct appeal. See                          -23 (citing Commonwealth

v. Lantzy, 736 A.2d 564 (Pa. 1998); Commonwealth v. Liebel, 825 A.2d

630 (Pa. 2003); Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005)). In

addition, Appellant asserts that even if trial counsel was not per se

ineffective, he was ineffective in failing to consult with him about his

                                                   Roe v. Flores-Ortega, 528

U.S. 470 (2000); Commonwealth v. Touw, 781 A.2d 1250 (Pa.Super.

2001)).    In   the   latter   scenario,   this Court   in   Commonwealth v.

Markowitz, 32 A.3d 706 (Pa.Super. 2011), outlined the relevant law as

follows.

             Where counsel has not advised his client about the client's
      appellate rights, the question becomes whether that failure
      caused actual prejudice to the petitioner, i.e.,
      deficient failure to consult with him about an appeal, he would
                                  Flores Ortega, supra at 484, 120
      S.Ct. 1029.      In analyzing whether there is a constitutional
      mandate to consult with a defendant about his appellate rights,
      the Supreme Co

                                       -5-
J-S55008-14


      rational defendant would want to appeal (for example, because
      there are nonfrivolous grounds for appeal), or (2) that this
      particular defendant reasonably demonstrated to counsel that he
      was interested in appeal         Id. at 480, 120 S.Ct. 1029.
      Where a petitioner can prove either factor, he establishes that
      his claim has arguable merit.

            In deciding whether the petitioner suffered actual
      prejudice, the High Court listed several relevant factors. For
      example, did the petitioner plead guilty, thereby decreasing the
      number of appealable issues? Id. Pertinent considerations also
      include any instructions given by the court with respect to the
      defendant's right to appeal as well as evidence of nonfrivolous
      grounds for appeal.

Id. at 716.



requested trial counsel file an appeal credible.   The court instead credited



have filed an appeal.   Specifically, trial counsel testified that Appellant did

not ask for an appeal, although he also indicated that he could not recall

Appellant asking him to file an appeal.         He remarked that Appellant

scheduled two appointments with him after his sentencing, but failed to

appear.   Trial counsel also referred Appellant to an immigration lawyer



note that trial counsel advised Appellant of his appellate rights following his

sentencing, and, in doing so, actually indicated that if Appellant wished to

appeal he would have to advise the court to appoint a new attorney to

appeal on his behalf.




                                     -6-
J-S55008-14




establish that trial counsel was per se ineffective.    Further, the record

establishes that counsel did inform Appellant of his appellate rights. To the

extent trial counsel did not consult with Appellant in more detail regarding

the possibility of an appeal, the PCRA court found that Appellant failed to

appear at two meetings with trial counsel after his sentencing. Accordingly,

he is not entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2014




                                    -7-
