J-S34038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

VINCENT ANTHONY CATRONE

                            Appellant                No. 1142 MDA 2015


                  Appeal from the Order Dated May 26, 2015
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0004713-2008


BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED JUNE 21, 2016

        Appellant Vincent Anthony Catrone appeals from the order entered in

the Luzerne County Court of Common Pleas, which denied his petition to

have his direct appeal rights reinstated nunc pro tunc following his jury trial

convictions for involuntary deviate sexual intercourse, complainant less than

16 years of age (“IDSI”),1 unlawful contact with minor,2 aggravated indecent

assault complainant less than 16 years of age,3 aggravated indecent assault

without complainant’s consent,4 statutory sexual assault,5 and indecent
____________________________________________


1
    18 Pa.C.S. § 3123(a)(7).
2
    18 Pa.C.S. § 6318(a)(1).
3
    18 Pa.C.S. § 3125(a)(8).
4
    18 Pa.C.S. § 3125(a)(1).
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assault, complainant less than 13 years of age.6      After careful review, we

reverse and remand with instructions.

        The relevant facts and procedural history of this appeal are as follows.

On September 26, 2012, a jury convicted Appellant of the aforementioned

charges.7     The victim, Appellant’s step-daughter, testified that Appellant

sexually assaulted her on numerous occasions while she was between the

ages of 10 and 17 years old, while she resided with her mother, her brother

and Appellant.

        On February 19, 2013, counsel filed, and the court granted, a motion

to withdraw. Appellant retained new, private counsel, who filed a motion for

extraordinary relief pursuant to Pa.R.Crim.P. 704 on March 25, 2013. The

motion alleged that a Facebook post by the victim exonerated Appellant.

However, after several continuances, Appellant withdrew the motion on

February 12, 2014.

        On April 11, 2014, the court determined Appellant was a sexually

violent predator (“SVP”) and sentenced him to an aggregate sentence of 23

                       _______________________
(Footnote Continued)
5
    18 Pa.C.S. § 3122.1.
6
    18 Pa.C.S. § 3126(a)(7).
7
  Previously, on October 15, 2009, a jury acquitted Appellant of rape by
forcible compulsion, 18 Pa.C.S. § 3121(a)(1), and rape by threat of forcible
compulsion, 18 Pa.C.S. § 3121(a)(2). The jury did not reach a unanimous
verdict on other charges against Appellant, and the court declared a mistrial
on those charges.



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years and 5 months to 46 years and 10 months of incarceration. 8 Appellant

failed to file timely post-sentence motions or a timely direct appeal.

        On November 21, 2014, through the same counsel, Appellant filed an

unopposed petition for reinstatement of his direct appeal rights nunc pro

tunc.    On December 19, 2014, instead of treating Appellant’s filing as a

timely petition filed pursuant to the Post Conviction Relief Act (“PCRA”),9 the

court denied Appellant’s petition. On April 6, 2015, Appellant filed another

counseled petition requesting the court permit him to file post-sentence

motions and a direct appeal from his judgment of sentence nunc pro tunc.

In this petition, counsel noted that her failure to file a timely post-sentence

motion and subsequent appeal after Appellant requested her to do so was

per se ineffective assistance of counsel.        The Commonwealth opposed the

motion on the basis that Appellant should have properly filed a PCRA petition

and requested the court deny the petition or, in the alternative, requested


____________________________________________


8
  Specifically, the court imposed consecutive sentences of incarceration of 5-
10 years for each of his three IDSI convictions. Additionally, the court
imposed consecutive sentences of 4-8 years’ incarceration for unlawful
contact with minor, 30-60 months’ incarceration for aggravated indecent
assault without complainant’s consent, 14-28 months’ incarceration for
statutory sexual assault, and 9-18 months’ incarceration for indecent
assault, complainant less than 13 years of age. The court imposed no
additional penalty on Appellant’s conviction for aggravated indecent assault,
complainant less than 16 years of age.
9
    42 Pa.C.S. §§ 9541-9546.




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the court treat the petition as a PCRA petition and appoint new counsel.10

On April 14, 2015, Appellant filed another “petition for appeal nunc pro

tunc.” This petition was identical to the petition filed April 6, 2015, except

that the name of trial counsel was corrected.

       On May 26, 2015, the trial court denied Appellant’s petition.11 On June

24, 2015, Appellant filed a notice of appeal.12

       Appellant raises the following issue for our review:

          WHETHER THE COURT OF COMMON PLEAS OF LUZERNE
          COUNTY ABUSED ITS DISCRETION WHEN IT FAILED TO
          REINSTATE  APPELLANT’S RIGHT  TO   FILE  POST-
          SENTENCING MOTIONS AND REINSTATE DIRECT APPEAL
          RIGHTS?

Appellant’s Brief at 4.

       Appellant argues the court erred by denying his petition to reinstate

his post-sentence motion and direct appeal rights nunc pro tunc.




____________________________________________


10
   In its appellate brief, the Commonwealth requests the court treat
Appellant’s filing as a PCRA petition and acknowledges that Appellant should
get the opportunity to exercise his right to direct appeal.             See
Commonwealth’s Brief at 6.
11
  In its May 26, 2015 order, the court specifically denies the April 14, 2015
petition and reaffirms its order of December 19, 2014 in which it denied
Appellant’s first petition for appeal nunc pro tunc.
12
   The court did not order, and Appellant did not file, a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial
court did not file a Pa.R.A.P. 1925(a) opinion.



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       “It is well-settled that the PCRA is intended to be the sole means of

achieving post-conviction relief.” Commonwealth v. Taylor, 65 A.3d 462,

466 (Pa.Super.2013).          Further, “all motions filed after a judgment of

sentence is final are to be construed as PCRA petitions.”        Id.      (internal

citation omitted). Here, Appellant’s judgment of sentence became final on

May 12, 2014, when the time-period for filing a timely direct appeal expired.

See 42 Pa.C.S. § 9545(b)(3). Thus, Appellant’s petitions for nunc pro tunc

relief, filed November 21, 2014, April 6, 2015, and April 14, 2015, all should

have been treated as PCRA petitions, and the trial court erred by failing to

treat them as such.13

       Before we address the merits of Appellant’s claims, we must determine

whether his PRCA petition was timely.            The timeliness of a PCRA petition

implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012). All of Appellant’s petitions for nunc pro tunc

relief were filed before May 12, 2015, within one year after his judgment of


____________________________________________


13
   Generally, counsel may not assert his or her own ineffectiveness. See
Commonwealth v. Spotz, 18 A.3d 244, 329 (Pa.2011). “When Appellate
counsel asserts his own ineffectiveness, the case should be remanded so
that new counsel may be appointed except where it is clear from the record
that counsel was ineffective or it is clear from the record that the
ineffectiveness is meritless.” Commonwealth v. Baldwin, 760 A.2d 883,
885 (Pa.Super.2000).




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sentence became final.    Thus, they were timely filed.   See 42 Pa.C.S. §

9545(b)(1).

      “It is well settled that when a lawyer fails to file a direct appeal

requested by the defendant, the defendant is automatically entitled to

reinstatement of his direct appeal rights.” Commonwealth v. Markowitz,

32 A.3d 706, 714 (Pa.Super.2011) (citing Commonwealth v. Lantzy, 736

A.2d 564 (Pa.1999)). Even “[w]here a defendant does not ask his attorney

to file a direct appeal, counsel still may be held ineffective if he does not

consult with his client about the client’s appellate rights.” Id. (internal

citation omitted). “Once it is determined that an appellant was denied his or

her constitutional right of direct appeal, the proper course of action is to

grant the appellant leave to file a direct appeal nunc pro tunc.” In Interest

of A.P., 617 A.2d 764, 767 (Pa.Super.1992), aff'd, 639 A.2d 1181 (Pa.1994)

(citing Commonwealth v. Hoyman, 561 A.2d 756 (Pa.Super.1989)).

      Further,

         whenever a PCRA court reinstates a defendant’s right to
         file a direct appeal, the PCRA court shall also issue an
         order permitting the defendant to file post-sentence
         motions nunc pro tunc. The Superior Court reasoned that
         such a procedural rule would conserve precious judicial
         resources because claims of ineffective assistance of
         counsel could be reviewed at an earlier stage of the
         proceedings, thereby obviating the necessity of a
         subsequent PCRA petition should the judgment of sentence
         be affirmed on direct appeal.

Commonwealth v. Liston, 977 A.2d 1089, 1091 (Pa.2009) (internal

citations omitted) (emphasis in original).

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      Here, Appellant’s counsel asserted her own ineffectiveness for failing

to timely file a requested post-sentence motion or direct appeal, and

requested Appellant’s rights be reinstated nunc pro tunc. Although Appellant

should have filed a PCRA petition asserting counsel’s ineffectiveness, the

court erred by failing to treat Appellant’s petition as a PCRA petition.

      Therefore, we reverse the court’s May 26, 2015 order, which denied

Appellant’s petition. Upon remand, the PCRA court shall consider Appellant’s

filing a timely PCRA petition and conduct a hearing to determine whether

counsel was ineffective for failing to file post-sentence motions or a direct

appeal.   If the PCRA court determines that Appellant was denied his

constitutional right of direct appeal, it shall enter an order reinstating

Appellant’s direct appeal rights, and establishing the deadline for the filing of

Appellant’s post-sentence motions and a direct appeal nunc pro tunc.

      Order     reversed.   Case   remanded    with   instructions.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2016




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