J-S40017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    PATRICK J. HOPKINS,                        :
                                               :
                      Appellant                :   No. 2912 EDA 2016

            Appeal from the Judgment of Sentence February 21, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003325-2008,
                             CP-51-CR-0011046-2008


BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E. *

JUDGMENT ORDER BY DUBOW, J.:                               FILED JULY 10, 2017

        Appellant, Patrick J. Hopkins, appeals from the Judgment of Sentence

imposed following the revocation of his probation. We dismiss this appeal.

        A recitation of the facts underlying this matter is unnecessary to our

disposition. The relevant procedural history is as follows.

        On February 21, 2013, the trial court sentenced Appellant to five to

ten years’ incarceration followed by two years of probation for violating the

terms of his probation that had been imposed after two 2008 convictions.

Appellant filed a timely Motion for Reconsideration of Sentence, which the

court denied on March 7, 2013. Appellant did not file a direct appeal.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S40017-17



      On November 19, 2013, Appellant filed a pro se Petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.            Stephen T.

O’Hanlon, Esquire, entered his appearance on May 16, 2014, but took no

action to file an Amended Petition on Appellant’s behalf at that time.

      On January 29, 2015, Appellant filed a pro se Motion for Leave to file

Amended PCRA Petition and an Amended PCRA Petition.              He also filed a

Motion to Proceed Pro Se and for Appointment of New Counsel. On March

10, 2015, Appellant filed a pro se Motion to Compel Decision on Pending

PCRA Petition.

      On March 20, 2016, Attorney O’Hanlon filed an Amended PCRA Petition

alleging the ineffectiveness of Appellant’s violation of probation (“VOP”)

counsel, Michael A. DeFino, Esquire, for not filing a direct appeal and for not

notifying the VOP court that Appellant did not have notice of his probation of

violation as required by Gagnon v. Scarpelli, 411 U.S. 778 (1973).

Appellant sought the reinstatement of his direct appeal rights nunc pro tunc

or, in the alternative, vacatur of his Judgment of Sentence.

      On September 6, 2016, the PCRA court reinstated Appellant’s direct

appeal rights nunc pro tunc. Appellant filed a counseled Notice of Appeal on

September 7, 2016, and complied with the trial court’s Order to file a

Pa.R.A.P. 1925(b) Statement. In his Notice of Appeal, Appellant purports to

appeal from the February 21, 2013 Judgment of Sentence, and the

September 6, 2016 Order “dismissing his amended PCRA Petition relating to

his Gagnon I Notice issue.”     Notice of Appeal, 9/7/16.      We note that the

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only Order appearing on the docket on September 6, 2016 is that which

reinstated Appellant’s direct appeal rights nunc pro tunc.

      In his Pa.R.A.P. 1925(b) Statement, Appellant indicated that he

intended to raise two issues on appeal: (1) that his sentence was excessive;

and (2) that the court deprived him of his due process rights by failing to

hold a Gagnon I hearing or to provide him with notice of a violation of

probation. See 1925(b) Statement, 9/12/16, 1-2. Both of these claims are

direct appeal challenges to his Judgment of Sentence.

      However, in his Brief to this Court, Appellant instead claims that his

VOP counsel was ineffective for failing to object to both Appellant’s sentence

and to the alleged lack of a Gagnon I hearing or notice of violation.     His

argument pertains only to this ineffectiveness claim. See Appellant’s Brief

at 4, 8-12.   This claim implicates a collateral issue cognizable under the

PCRA. See 42 Pa.C.S. § 9543(a)(2)(ii).

      Once a PCRA court reinstates an appellant’s direct appeal rights nunc

pro tunc, this Court is without jurisdiction to consider the merits of any

ineffectiveness claim. See Commonwealth v. Harris, 114 A.3d 1, 6 (Pa.

Super. 2015) (holding that once a PCRA court grants the right to seek

further review nunc pro tunc, a defendant’s sentence is no longer final and

neither the PCRA court, nor the Superior Court, retains jurisdiction to

consider the merits of any remaining ineffectiveness claims).

      Moreover, to the extent that Appellant preserved his direct appeal

challenges to his Judgment of Sentence by way of a timely Notice of Appeal

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and 1925(b) Statement, we find that he has abandoned those claims on

appeal by not raising them in his brief to this Court. See Pa.R.A.P. 2119(a);

see also Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (“[I]t

is a well[-]settled principle of appellate jurisprudence that undeveloped

claims are waived and unreviewable on appeal.”).

      Appeal dismissed.    Judgment of Sentence affirmed.        Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2017




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