J-S07013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HOWARD CHARLES JOHNSON                     :
                                               :
                       Appellant               :   No. 1451 MDA 2018

             Appeal from the PCRA Order Entered August 15, 2018
               In the Court of Common Pleas of Bradford County
             Criminal Division at No(s): CP-08-CR-0000633-2015


BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY OLSON, J.:                            FILED FEBRUARY 26, 2019

        Appellant, Howard Charles Johnson, appeals pro se from the August 15,

2018 order dismissing his first petition filed pursuant to the Post-Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We vacate and remand for

further proceedings consistent with this memorandum.

        As our resolution of this appeal is based on the procedural posture of

this case, we decline to set forth the factual background. On June 27, 2016,

Appellant pled guilty to two counts of theft by unlawful taking. 1     He was

immediately sentenced to one to three years’ imprisonment and ordered to




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1   18 Pa.C.S.A. § 3921(a).


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* Retired Senior Judge assigned to the Superior Court.
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make restitution. On September 20, 2016, the trial court set the amount of

restitution.2 Appellant did not file a direct appeal.

       On August 17, 2017, Appellant filed a pro se PCRA petition. Thereafter,

court-appointed counsel filed a motion to withdraw as counsel and 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). After

receiving the Turner/Finley filing, the PCRA court issued notice of intent to

dismiss the petition without an evidentiary hearing. See Pa.R.Crim.P. 907.

Appellant filed a response to the Turner/Finley letter and the Rule 907

notice. He also filed a supplement to his PCRA petition without leave of court.

On August 14, 2018, the PCRA court granted counsel’s motion to withdraw.

The next day, the PCRA court dismissed the petition. This timely appeal

followed.

       Appellant presents issues for our review:

       [Was Appellant’s trial counsel ineffective for failing to file a direct
       appeal?]

Appellant’s Brief at 5.


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2  This procedure was inconsistent with 18 Pa.C.S.A. § 1106(c)(2) as
interpreted by Commonwealth v. Deshong, 850 A.2d 712 (Pa. Super.
2004). In Deshong, this Court held “that restitution must be determined at
the time of sentencing if the restitution is imposed as a direct sentence.”
Commonwealth v. Schrader, 141 A.3d 558, 562 (Pa. Super. 2016).
Furthermore, this Court held that when restitution is not imposed at the same
time as the judgment of sentence, the restitution order makes the judgment
of sentence a final, appealable order. Id. Hence, Appellant’s PCRA petition
was timely.

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      Preliminarily, we must determine whether Appellant preserved this

claim for appellate review. As the Commonwealth notes in its brief, Appellant

did not raise this issue in his pro se PCRA petition. Appellant, however, did

raise this issue in his response to PCRA counsel’s Turner/Finley letter and

the Rule 907 notice. In essence, Appellant argued that the PCRA court should

not grant counsel’s motion to withdraw and dismiss the petition without an

evidentiary hearing. Instead, appellant argued that the PCRA court should

order counsel to file an amended petition raising a claim that trial counsel was

ineffective for failing to file a direct appeal. This was sufficient to preserve the

issue for appellate review. See Commonwealth v. Rykard, 55 A.3d 1177,

1186–1189 (Pa. Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).

      Having determined that Appellant preserved this issue for our review,

we proceed to the merits of the issue presented. “Our standard of review for

issues arising from the denial of PCRA relief is well-settled. We must determine

whether the PCRA court’s ruling is supported by the record and free of legal

error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa. Super. 2018)

(citation omitted).      Appellant argues that his trial counsel rendered

ineffective assistance of counsel by failing to file a direct appeal as Appellant

instructed.

      “[T]he Sixth Amendment to the United States Constitution and Article I,

[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to effective

counsel. This right is violated where counsel’s performance so undermined


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the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.” Commonwealth v. Simpson, 112 A.3d

1194, 1197 (Pa. 2015) (cleaned up). To prevail on an ineffective assistance

of counsel claim, a “petitioner must plead and prove 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. Johnson, 179 A.3d 1153, 1158 (Pa. Super.

2018) (citation omitted). “A petitioner’s failure to satisfy any prong of this

test is fatal to the claim.” Commonwealth v. Wholaver, 177 A.3d 136, 144

(Pa. 2018) (citation omitted).

      Notwithstanding these general rules relating to ineffective assistance of

counsel, it is axiomatic that trial counsel’s “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. Ousley, 21 A.3d 1238, 1244

(Pa. Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011) (citation omitted).

Even if the underlying issue on appeal appears to be frivolous, an attorney is

always required to file a direct appeal when instructed to do so by his or her

client. The attorney, may thereafter seek to withdraw from the representation

if he or she concludes that the appeal is wholly frivolous.                 See


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Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981); Anders v.

California, 386 U.S. 738 (1967).

       Appellant avers that he instructed trial counsel to file a direct appeal

and trial counsel failed to file that direct appeal. If this averment is true,

Appellant is entitled to reinstatement of his direct appellate rights nunc pro

tunc. Hence, we vacate the PCRA court’s order and remand for the filing of

an amended petition by counsel3 and an evidentiary hearing to determine if

Appellant instructed his trial counsel to file a direct appeal.

       Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/26/2019




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3 As noted above, Appellant’s original court-appointed PCRA counsel was
permitted to withdraw. Upon remand, new counsel should be appointed for
Appellant.

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