J-A06019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

PATRICK JACKSON

                            Appellee                No. 2470 EDA 2012


                      Appeal from the Order July 19, 2012
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-001427-2009


BEFORE: BENDER, P.J.E., PANELLA, J. and LAZARUS, J.

MEMORANDUM BY PANELLA, J.                      FILED SEPTEMBER 12, 2014

        The Commonwealth appeals from the order entered on July 19, 2012,

in the Court of Common Pleas of Philadelphia County, which granted

                                                      -Conviction Relief Act

(PCRA)1 and reinstated his post-sentence and appellate rights. After careful

review, we affirm.

        On October 23, 2009, at approximately 9:35 P.M., Officer Linell

Jefferson and his partner, Officer Grimes, of the City of Philadelphia Police

Department executed a tr




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1
    42 PA.CONS.STAT.ANN. §§ 9541-9546.
J-A06019-14



appeared to be a holster. As a safety precaution, the officers ordered

Jackson out of the vehicle and, in the course of conducting a pat-down,

recovered from his waist a .25 caliber handgun containing four live rounds of

ammunition. Jackson was unable to produce a license for the firearm.

Jackson was subsequently arrested. The officers later confirmed that Jackson



robbery, a first-degree felony, among other offenses, made him ineligible to

carry a firearm.

      Defense counsel Nina Carter, Esquire, of the Philadelphia Defender

Association, filed an omnibus pre-trial motion to suppress on behalf of



Immediately thereafter, Johnson entered open guilty pleas to two violations

of the Uniform Firearms Act, 18 PA.CONS.STAT.ANN. § 6105, Persons not to

possess, use, manufacture, control, sell or transfer firearms, and 18

PA.CONS.STAT.ANN. § 6106, Firearms not to be carried without a license.

      Jackson, represented by Attorney Carter, appeared for sentencing on



background, which included an extensive criminal record involving guns and

drugs, and sentenced him to a term of

possessing a firearm in violation of section 6105 and to a concurrent term of

3½ to 7 years for carrying a firearm without a license in violation of section

6106. See N.T., Sentencing, 5/6/10, at 1-8. Attorney Carter advised




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Jackson, on the record, of his appellate rights. Specifically, Attorney Carter

stated:

      MS. CARTER
      Judge to reconsider his sentence. And you have thirty days from
      today to file for an appeal to Superior Court for a new trial.

      If you wish to do either, it must be done in writing. And if you
      fail to act within those timelines, you would be considered to
      have waived or lost those rights.

      Do you understand your sentence as well as your appellate
      rights?

      THE DEFENDANT: Yes

Id., at 8.

      Even though Jackson acknowledged his appellate rights, he failed to

file either a post-sentence motion or a direct appeal within the prescribed

time period. On October 5, 2010, Jackson filed a pro se PCRA petition. John

Cotter, Esquire, was appointed to serve as PCRA counsel and filed an

amended PCRA petition on December 20, 2011. The amended PCRA petition

alleged that
         trial defense counsel was ineffective because he [sic] failed to

          requested to do so by [Jacksonn]. As a result of this
          [Jackson] lost is [sic] state constitutional right to appeal the

          of his appeal rights from the judgment of sentence imposed in
          this matter.

Amended Petition Under Post-Conviction Relief Act, 12/20/11, at ¶4(a). As




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    -                                                                -sentence

motions. Id., at 2.

        At the PCRA hearing on July 19, 2012, Jackson testified via video



                                                                   -8. Jackson

further acknowledged that the earliest correspondence he forwarded to the



sentencing and advisement of his appellate rights. See id., at 11. It did

appear however, that Jackson forwarded correspondence to the trial court on

August 31, 2010 which the trial court did not read, but was just time-

                                      See id., at 12.



Carter. According to Attorney Carter, Jackson did not request that she file

post-sentence motions or a direct appeal on his behalf at any time following

sentencing. See id., at 25-

correspondence or telephone messages from Jackson between May 6, 2010,

the date of sentencing and 30 days thereafter. See id., at 26.            More

importantly, Attorney Carter testified that it is neither her personal practice

                                                                              -

sentence motions or appeal will be filed automatically on their behalf. See

id., at 29-30.

        At conclusion of the hearing the PCRA court made the following

findings on the record:

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     Okay. After I heard all the evidence and had a sidebar
     conversation with counsel, I find without a doubt that Ms. Carter
     was certainly not ineffective. She was assigned to my courtroom
     routinely for gun court cases. She was always very prepared,


     appellate rights on the record. She did that without fail. She also
     actively represented defendants in front of me from guilty pleas
     to waiver trials to, of course, doing a plethora of motions before

     what she does. I find she certainly was not ineffective.

     What I will say is that the defendant sending me some letter in
     August which I, of course, do not read any letters that come
     from any defendants at all for obvious reasons, but that letter at
     that point was him wanting to do something different. I agree
     with the Commonwealth, of course, at that time he did waive
     any rights that he would have had, and that there was a series

                           n and it was him just trying to get some
     things reinstated.



     that because he did not know what he was doing in terms of
     se
     when he should have filed the requisite paperwork at that time


     wanted to do and I will surmise it was because Ms. Carter
     adequately represented him but also advised him of what his


     based on any ineffective assistance claims which she certainly


Id., at 32-34.



right to file post-sentence motions so [counsel] has some issues to raise on

         Id




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appeal, [he] would have to file post-                              Id., at 35. The trial

court agreed with J                                               both                     -

sentence rights as well as his right to appeal be reinstated. Id., at 36.

Counsel for Jackson subsequently filed post-sentence motions on July 23,

2012, which were promptly denied. This appeal followed.

        On appeal, the Commonwealth raises the following issue for our

review:

        Did the lower court err where it granted defendant the right to
        file post-sentence motions nunc pro tunc despite the absence of
        any allegation or proof of actual prejudice?

Commonwe

        In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

See Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay

great    deference   to    the   findings    of    the   PCRA    court,   but   its    legal

determinations are subject to our plenary review. See id.

        Here, the Commonwealth argues that the trial court erred in

reinstati                    -sentence rights. We disagree. In Commonwealth

v. Liston, 977 A.2d 1089 (Pa. 2009), our Supreme Court expressly

disapproved of automatically conferring upon a petitioner the right to file a

post-sentence     motion    nunc    pro     tunc    once   the    PCRA    court       orders

reinstatement of direct appeal rights nunc pro tunc. See id., at 1094.

Rather, in order to grant such relief, a PCRA petitioner must plead and prove

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that he requested such relief with the PCRA court. See Commonwealth v.

Fransen, 986 A.2d 154, 155 (Pa. Super. 2009). Further, the PCRA court

must conduct an evidentiary hearing on the issue to determine whether the

deprivation of the right to file and litigate a post-sentence motion was the

result of the ineffectiveness of counsel. See id.

      Here, the PCRA court did not violate Liston by automatically

                             -sentence   motion     rights   simply   because   it

reinstated his direct appeal rights nunc pro tunc. Rather, Jackson properly

pled a claim for such relief. Liberally construed, Jackson            pro se and

amended PCRA petitions request the reinstatement of his post-sentence

motion rights. In his pro se PCRA petition Jackson indicated the relief he

                                                                  Pro Se PCRA

Petition, 9/27/10, at 5. Moreover, in his amended PCRA petition Jackson




requested that the PCRA court reinstate his right to file post-sentence

motions. Amended PCRA petition, 12/20/11, at ¶4a.

                                                       -sentence motion rights



because he pled guilty the issues he sought to raise on appeal would be

waived unless he were afforded the opportunity to assert those claims in a

post-sentence motion. See N.T., PCRA Hearing, 7/19/12, at 21, 35-36.




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                                               2
                                                   and provided an acceptable basis for

the PCRA cou                                            -sentence motion rights.

       Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2014




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2
    See Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa. Super. 2004

of his sentence is waived if the [a]ppellant has not filed a post-sentence

(citaitons omitted).



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