J-S73016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CLIFFORD MARK FOSS,                        :
                                               :
                      Appellant                :   No. 370 MDA 2017

                 Appeal from the PCRA Order February 8, 2017
                In the Court of Common Pleas of Berks County
               Criminal Division at No.: CP-06-CR-0003185-2015

BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                             FILED FEBRUARY 16, 2018

        Appellant, Clifford Mark Foss, appeals pro se from the Order entered in

the Berks County Court of Common Pleas dismissing his first Petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

After careful review, we affirm in part, vacate in part, and remand for an

evidentiary hearing limited solely to the issue of whether plea counsel was

ineffective for failing to file a direct appeal.

        On September 29, 2015, Appellant entered an open guilty plea to one

count each of Burglary and Criminal Conspiracy.          That same day, the trial

court sentenced Appellant to an aggregate term of 2½ to 10 years’

incarceration.1 Appellant did not file a direct appeal.

____________________________________________


1The court confirmed that counsel informed Appellant of his post-sentence
and appellate rights during the September 29, 2015 guilty plea and
(Footnote Continued Next Page)


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        Appellant timely filed a pro se PCRA Petition, his first, on June 13,

2016.         Utilizing   Form    DC-198   promulgated    by    the   Department     of

Corrections, Appellant stated that he “was never talked to about my appeals

Roe vs. Flores-Ortega” and checked a box indicating that he was alleging

ineffective assistance of counsel. See PCRA Petition, filed 6/13/16, at 2-3.2

        The     PCRA      court   appointed    counsel,   who   eventually   filed   a

Turner/Finley3 “No Merit” Letter and Motion to Withdraw with the PCRA

court on December 29, 2016. Counsel raised three potential claims in the

No Merit Letter: (1) plea counsel was ineffective for failing to inform

Appellant that he was entering an open guilty plea; (2) plea counsel was
(Footnote Continued) _______________________

sentencing hearing. N.T., 9/29/15, at 11. The certified record contains two
documents, signed by Appellant, that include detailed accounts of the
relevant post-sentence and appellate rights following entry of a guilty plea.
See “Defendant’s Acknowledgment of Post Sentence Procedures Following
Guilty Plea” at 1-2; “Statement Accompanying Defendant’s Request to Enter
a Guilty Plea,” dated 9/29/15, at 1-3.

We note that a defendant who enters a guilty plea is entitled to appeal the
discretionary aspects of his sentence that are not specifically negotiated by
the parties. See Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa.
Super. 2009) (finding that defendant could appeal the trial court’s exercise
of discretion with respect to the maximum term of his sentence even though
minimum term was negotiated by the parties and made part of the plea
agreement).

2 In Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000), the U.S. Supreme
Court rejected “a bright-line rule that counsel must always consult with the
defendant regarding an appeal,” and noted that the question is whether
counsel’s choices were reasonable.

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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ineffective in informing Appellant that he would have to go to trial if he did

not enter a guilty plea; and (3) a discretionary aspect of sentencing claim

regarding   the   court’s   imposition   of   consecutive   sentences.    See

Turner/Finley No Merit Letter and Motion to Withdraw, 12/29/16, at 1-5.

Counsel concluded these claims lacked merit.         Counsel did not address

Appellant’s claim that counsel never advised him about his appellate rights.

      On January 17, 2017, the PCRA court issued an Order giving Appellant

notice pursuant to Pa.R.Crim.P. 907 of the PCRA court’s intent to dismiss the

PCRA Petition without a hearing. In an Opinion included in the Order, the

PCRA court opined that: (1) Appellant’s guilty plea was not unlawfully

induced because he was informed that he was entering an open guilty plea,

which Appellant acknowledged verbally and in writing; (2) Appellant’s guilty

plea was not unlawfully induced because counsel correctly informed

Appellant that Appellant would have to go to trial if he did not enter a guilty

plea; and (3) his sentence is not illegal because it was “well below the

statutory maximum.” PCRA Court Opinion, 1/17/17, at 3-5. Appellant did

not file a Response.

      On February 8, 2017, the PCRA court dismissed Appellant’s PCRA

Petition. On March 7, 2017, the PCRA court granted PCRA counsel’s Petition

to Withdraw.

      On February 24, 2017, Appellant filed a pro se Notice of Appeal. On

March 17, 2017, Appellant filed a pro se Pa.R.A.P. 1925(b) Statement of


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Errors. The PCRA court filed a Rule 1925(a) Opinion, in which it opined that

Appellant’s 1925(b) Statement of Errors was too vague and unspecific to

address Appellant’s claim.          PCRA Court Opinion, filed 3/24/17, at 1-3

(stating, inter alia, “Petitioner has failed to include any specificity to the

allegations in this Statement of Errors or to develop the alleged errors in

such a way that this Court could address the issues; indeed, two of the three

errors do not even [comprise complete] sentences, much less arguable

claims for relief.”).

       Appellant presents two questions for our review:

       [I.] Whether the PCRA court erred when it accepted PCRA
       counsel’s no merit letter and dismissed Appellant’s PCRA
       Petition?

       [II.] Whether the PCRA court erred when it requested that this
       appeal be dismissed as no issues have been preserved for
       appellate review?

Appellant’s Brief at 3 (reordered).4

       In his Brief, Appellant states that he told his attorney after sentencing

that he wanted to file a direct appeal. Appellant’s Brief at 12.

       “There is no absolute right to an evidentiary hearing on a PCRA

petition, and if the PCRA court can determine from the record that no

genuine issues of material fact exist, then a hearing is not necessary.”
____________________________________________


4In his Brief, Appellant also presents new issues for the first time, including
a compulsory joinder claim invoking 18 Pa.C.S. § 110. These claims are
waived. See Pa.R.A.P. 302 (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”).



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Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (citation

omitted). “With respect to the PCRA court’s decision to deny a request for an

evidentiary hearing, or to hold a limited evidentiary hearing, such a decision

is within the discretion of the PCRA court and will not be overturned absent

an abuse of discretion.”    Commonwealth v. Mason, 130 A.3d 601, 617

(Pa. 2015).

      The law presumes that counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on Appellant.” Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the

particular course of conduct pursued by counsel did not have some

reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceeding would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      Our Supreme Court has held that where “there is an unjustified

failure to file a requested direct appeal, the conduct of counsel falls beneath

the range of competence demanded of attorneys in criminal cases.”

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (emphasis


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added).    This denies the accused the assistance of counsel guaranteed by

the Sixth Amendment to the United States Constitution and Article I, Section

9 of the Pennsylvania Constitution as well as the right to direct appeal under

Article V, Section 9. Id. The Supreme Court concluded that this constitutes

prejudice and per se ineffectiveness for PCRA purposes. Id.

      Before a court will find ineffectiveness of trial counsel for failing to file

a direct appeal, however, Appellant must prove that he requested an appeal

and that counsel disregarded this request. Commonwealth v. Touw, 781

A.2d 1250, 1254 (Pa. Super. 2001). In such a circumstance, a defendant is

automatically entitled to reinstatement of his appellate rights.          Lantzy,

supra at 572. Counsel has a constitutional duty to consult with a defendant

about an appeal where counsel has reason to believe either (1) that a

rational defendant would want to appeal, for example, because there are

meritorious grounds for appeal, or (2) that this particular defendant

reasonably demonstrated to counsel that he was interested in appealing.

Touw, supra at 1254 (citing Roe v. Flores-Ortega, 528 U.S. 470, 480

(2000)).

      Here, Appellant claims that he specifically requested that his plea

counsel file a direct appeal. See Appellant’s Brief at 12-14 (citing his own

pro se PCRA Petition and stating, inter alia, “Appellant wanted to appeal his

sentence, and informed his public defender after he was sentenced that he

wanted to do so.”). Appellant also avers that, despite this issue being the


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sole issue he presented in his pro se PCRA Petition, “PCRA counsel never

addressed it or mentioned it, in its no-merit letter as it is required to do

pursuant to the dictates of this Court for filing a no-merit letter.” Id. at 14.5

       However, Appellant was not given the opportunity of an evidentiary

hearing with appointed PCRA counsel to prove that he asked plea counsel to

file an appeal.    The PCRA court did not substantively analyze this issue in

any of its Opinions so we do not have the benefit of any findings of fact or

credibility findings regarding Appellant’s ineffectiveness claim.

       Therefore, we find that the PCRA court erred in dismissing Appellant’s

PCRA Petition without holding an evidentiary hearing to determine whether

Appellant asked plea counsel to file a direct appeal or whether Appellant

reasonably demonstrated to counsel that he was interested in appealing,

triggering counsel’s duty to consult with Appellant.       Accordingly, we are

constrained to vacate in part the PCRA court’s February 8, 2017 Order

denying Appellant’s PCRA Petition without a hearing and remand for further

proceedings on this issue. See Lantzy, supra at 572.

       With respect to the three issues PCRA counsel raised in the No Merit

Letter, which Appellant did not raise or develop in his appellate Brief, we

agree with the PCRA court’s conclusions described supra and affirm with
____________________________________________


5 Our review of the certified record shows that PCRA counsel mentioned this
issue and asserted that Appellant was referring to a different case in another
county. See Turner/Finley No Merit Letter and Motion to Withdraw,
12/29/16, at 4.



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respect to those issues. See PCRA Court Opinion, 1/17/17, at 3-5. Thus,

the sole issue to be resolved at the evidentiary hearing is Appellant’s claim

regarding his alleged request to file a direct appeal.

      As the PCRA court permitted PCRA counsel to withdraw, the PCRA

court is directed to appoint new PCRA counsel and conduct an evidentiary

hearing in accord with this memorandum.

      Order affirmed in part and vacated in part. Case remanded for further

proceedings. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2018




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