J-S65018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

AVERY AUVIAN KIRKSEY,

                            Appellant                   No. 1996 WDA 2015


               Appeal from the PCRA Order of December 4, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000187-2014


BEFORE: LAZARUS, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED NOVEMBER 28, 2016

        Appellant, Avery Auvian Kirksey, appeals from an order entered on

December 4, 2015 that dismissed his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.         We vacate the

order of December 4, 2015 and remand with instructions directing the PCRA

court to reinstate Appellant’s direct appeal rights.

        At the conclusion of trial on July 22, 2014, a jury found Appellant

guilty of recklessly endangering another person, possession of an instrument

of crime, firearms not to be carried without a license, possession of a firearm

prohibited, and simple assault.1         Thereafter, on September 18, 2014, the

trial court sentenced Appellant to an aggregate term of 84 to 180 months’

____________________________________________


1
    18 Pa.C.S.A. §§ 2705, 907(a), 6106(a)(1), 6105(a)(1), and 2701(a)(3).



*Retired Senior Judge assigned to the Superior Court.
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incarceration.   Attorney Thomas Brasco, Jr. represented Appellant at trial,

but did not file post-sentence motions or a direct appeal.

      On July 6, 2015, Appellant, acting pro se, filed a PCRA petition

requesting reinstatement of his appellate rights.       The petition alleged,

among other things, that trial counsel refused to file post-sentence motions

or a notice of appeal, despite Appellant’s requests.         The PCRA court

appointed counsel who filed an amended petition. The PCRA court convened

a hearing on December 3, 2015.

      Appellant’s PCRA hearing established that he spoke with trial counsel

about filing a direct appeal immediately after the trial court imposed its

sentence and again raised the issue in a letter sent to counsel on September

26, 2014. The following relevant exchanges occurred at the hearing.

      DIRECT EXAMINATION (of trial counsel)

      Commonwealth:       In regard to your representation, after
      [Appellant] was sentenced, did he ever ask you to file an appeal
      of his judgment of sentence?

      Trial Counsel: He did. I received a letter from him.

                                *     *     *

      CROSS EXAMINATION (of trial counsel)

      PCRA Counsel: And in [the conversation between you and
      Appellant immediately following sentence] isn’t it true
      [Appellant] asked you to file [] an appeal for him?

      Trial Counsel: He asked me if I was going to come see him so
      we could discuss something regarding an appeal.

                                *     *     *

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        PCRA Counsel: So between your conversation with [Appellant]
        and the letter that he sent you subsequently asking for you to
        file an appeal, you would agree that his attention [sic] was to
        want to appeal his sentence, or the merits of his case?

        Trial Counsel: I believe he thought that he may want to file an
        appeal but he did not give me any sort of terms under which he
        believed an appeal could be filed.

                                  *     *      *
        PCRA Counsel: So isn’t it possible that in line with your client’s
        wishes for you to file an appeal, you could have therefore filed
        an [Anders2] [b]rief and let the Superior Court decide whether
        or not any meritorious issues existed?

        Trial Counsel: I could have but I was under no obligation to do
        so.

                              *    *      *
        DIRECT EXAMINATION (of Appellant)

        PCRA Counsel: So, right directly after your sentence, you said
        to your attorney that you would like to appeal your sentence?

        Appellant: Yeah. I had a few words before the sheriffs took me
        out.

                                    *    *    *
        PCRA Counsel:       Is that a copy of the letter that you wrote
        Attorney Brasco?

        Appellant: Yes.

        PCRA Counsel: And if you just look at the first line, the first
        sentence, right here, what did you ask him to do?

        Appellant: Put in a motion for a re – re-preliminary hearing and
        for a re-trial.

        PCRA Counsel: And what else did you ask for?
____________________________________________


2
    Anders v. California, 386 U.S. 738 (1967).



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      Appellant: And I would like to put in a motion for appeal.

      PCRA Counsel: [Appellant], do you have any legal training?

      Appellant: No.

      PCRA Counsel: Are you a lawyer?

      Appellant: No.

      PCRA Counsel: So you wouldn’t really know specifically the
      word, the legal term that we would use for an appeal, right?

      Appellant: Yes.

      PCRA Counsel: So what was your intention when you wrote that
      letter?

      Appellant:   Asking him – asking [Attorney Brasco] for a direct
      appeal.

N.T. PCRA Hearing, 12/3/15, at 4, 7-8, 13, 18-19, and 20.

      Following the hearing, the PCRA court concluded that Appellant did not

ask trial counsel to file an appeal, but merely inquired into the possibility

and feasibility of such efforts.   Accordingly, the PCRA court held that trial

counsel was not ineffective and dismissed Appellant’s petition. This appeal

followed in which both the PCRA court and Appellant have complied with

Pa.R.A.P. 1925.

      Appellant raises the following issue for our consideration.

      Whether the PCRA court erred in denying [Appellant]
      post-conviction relief [by refusing to reinstate his direct appeal
      rights]?

Appellant’s Brief at 3.


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      On   appeal,    Appellant   challenges   the   PCRA    court’s   denial   of

post-conviction relief. Our standard of review is well settled.

      [We review an order] denying PCRA relief [to ascertain] whether
      the record supports the PCRA court's determination and whether
      the PCRA court's decision is free of legal error. The PCRA court's
      findings will not be disturbed unless there is no support for the
      findings in the certified record.

Commonwealth v. Ruiz, 131 A.3d 54, 57 (Pa. Super. 2015), quoting

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal

citations omitted).

      In Pennsylvania,

      an accused has an absolute right to appeal, P[ennsylvania]
      Constitution, Article V, § 9, and counsel can be faulted for
      allowing that right to be waived unless the accused himself
      effectively waives the right, i.e. for not protecting the accused's
      right in the absence of an effective waiver. This requirement
      that counsel protect the appellate right of an accused extends
      even to circumstances where the appeal is “totally without
      merit.” Commonwealth v. Perry, 346 A.2d 554, 555 (Pa.
      1975). This is not to say counsel must advance baseless claims
      in an appeal; rather, under such circumstances, he must protect
      the accused's right through the procedure enunciated in
      [Anders. See also Perry, supra; Commonwealth v. Baker,
      239 A.2d 201 (Pa. 1968)]. Quite simply, the Anders procedure
      would serve no purpose were we to accept the [Post Conviction
      Hearing Act] court's position [that counsel cannot be deemed
      ineffective for failing to file an appeal where the petition does not
      disclose issues of arguable merit].

Commonwealth v. Wilkerson, 416 A.2d 477, 479 (Pa. 1980) (parallel

citations omitted); see also Commonwealth v. Reaves, 923 A.2d 119 (Pa.

2007) (counsel is considered ineffective per se when he fails to file a

requested direct appeal); Commonwealth v. Lantzy, 736 A.2d 564 (Pa.

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1999) (defendant entitled to automatic reinstatement of direct appeal rights

where counsel fails to initiate a requested direct appeal).

      In this case, the PCRA court did not apply the foregoing principles of

law. Instead, the court found that Appellant never requested an appeal, but

merely inquired as to the “feasibility and viability” of such a filing.   See

PCRA Court Opinion, 12/4/15, at 1. Our task here is to determine whether

the record supports the PCRA court’s finding.

      After careful review of the testimony introduced at the PCRA hearing,

we conclude that the certified record does not support the PCRA court’s

factual assessment. The record demonstrates that Appellant communicated

his desire to appeal his judgment of sentence on two occasions. Although

Appellant’s wishes may have been inarticulately worded and/or poorly

punctuated, they were sufficient to convey Appellant’s interest in challenging

his sentence on appeal.        Moreover, the record shows that counsel

acknowledged his awareness of Appellant’s desire to litigate a direct appeal.

      Counsel felt free, however, to disregard Appellant’s requests based

upon his own misapprehension of Pennsylvania law and his apparent lack of

experience in litigating appeals.   See N.T. PCRA Hearing, 12/3/15, at 12

(counsel admitting that he has never filed a notice of appeal).       Counsel

believed he was under no obligation to file an appeal if there were no

meritorious issues to raise. Id. at 13. This understanding stands squarely

at odds with prevailing Pennsylvania law. If counsel believed that an appeal


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was frivolous, he was duty bound to follow the procedure set forth in

Anders and its Pennsylvania progeny.         Wilkerson, supra.       Under this

procedure, counsel could have filed a statement of intent to file an Anders

brief in lieu of filing a court-ordered concise statement.       See Pa.R.A.P.

1925(c)(4). This procedure has been adopted to preserve appellate review

of arguably meritorious claims.      Id.    Counsel’s failure to follow proper

procedure and the PCRA court’s ruling in this case defeats this goal.         In

short, the record here leads us to conclude that counsel’s misunderstanding

of applicable law led him to disregard Appellant’s valid request to file a direct

appeal. For these reasons, we vacate the order denying collateral relief and

remand this matter with instructions that the PCRA court reinstate

Appellant’s direct appeal rights.      Wilkerson, supra; Reaves, supra;

Lantzy, supra.

      Order vacated.      Case remanded with instructions.           Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2016




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