J-S21022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOEL VASQUEZ

                            Appellant                No. 2004 EDA 2014


                  Appeal from the PCRA Order June 20, 2014
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0003099-2012


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                            FILED APRIL 08, 2015

        Appellant Joel Vasquez appeals from the order entered in the Lehigh

County Court of Common Pleas, which dismissed his petition seeking relief

pursuant to the Post Conviction Relief Act (“PCRA”).1 For the reasons that

follow, we reverse the order of the PCRA court and reinstate Appellant’s

appeal rights nunc pro tunc.

        The PCRA court summarized the relevant procedural history of this

appeal as follows:

           On January 18, 2013, [Appellant] entered a negotiated
           guilty plea to two counts of aggravated assault (18
           [Pa.C.S.] §2702(a)(4) and §2702(a)1)) and one count of
           recklessly endangering another person (18 [Pa.C.S.]
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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           §2705).[2] In exchange, the Commonwealth agreed to
           bind the court to a standard range sentence. On February
           19, 2013, [Appellant] was sentenced to serve an
           aggregate sentence of no less than 70 months nor more
           than 30 years of incarceration. At the time, [Appellant]
           was represented by Earl Supplee, Esquire of the Office of
           the Public Defender of Lehigh County.

           On March 1, 2013, [Appellant] filed a pro se motion to
           modify and reduce sentence. Said motion was denied by
           this court on March 5, 2013.[3]

           On October 15, 2013, [Appellant] wrote a letter to this
           court, which the court considered a motion to file appeal
           nunc pro tunc. On the same day, the court denied the
           motion.

           On November 4, 2013, [Appellant] filed a pro se [PCRA
           petition]. On November 5, 2013, Charles Banta, Esquire
           was appointed to represent [Appellant] for purposes of his
           PCRA petition and was ordered to file an amended PCRA
           petition. An Amended PCRA Petition was filed on February
           25, 2014.

           On June 20, 2014, a PCRA hearing was held, with
           [Appellant] participating via videoconference while
           remaining incarcerated at the State Correctional Institution
           at Benner Township.          Testimony was taken from
           [Appellant] and his trial counsel, Earl Supplee, Esquire and
           arguments were made by the Commonwealth and PCRA
           Counsel Banta. At the conclusion of the hearing, the court
           denied the PCRA Petition.


____________________________________________


2
  These charges stem from an incident in which Appellant stabbed two
people and himself.     Although Appellant was diagnosed with paranoid
schizophrenia and was not taking his medication at the time of the
stabbings, he elected not to employ an insanity defense. See N.T., 1/18/13,
at 11.
3
    The court denied the motion on its merits.



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         [Appellant] filed an appeal of the PCRA denial on June 30,
         2014 and a statement of matters complained of on appeal
         on July 17, 2014.

PCRA Court Opinion, filed September 11, 2014, at 2-3 (unnecessary

capitalization omitted).

      Appellant raises the following issue for our review:

         WHETHER THE TRIAL COURT ERRED IN FAILING TO FIND
         COUNSEL INEFFECTIVE WHEN APPELLANT ESTABLISHED
         HE REQUESTED COUNSEL TO FILE AN APPEAL AND
         COUNSEL FAILED TO ACT UPON THE REQUEST?

Appellant’s Brief at 5.

      Appellant argues his trial counsel was ineffective for failing to consult

with him following sentencing, and for failing to file post-sentence motions

or an appeal when he knew or should have known that Appellant wanted to

appeal his judgment of sentence.      Appellant concludes his trial counsel’s

ineffectiveness entitles him to the reinstatement of his appeal rights nunc

pro tunc. We agree.

      Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and 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. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).




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       Initially, we note that claims of ineffective assistance of counsel are

cognizable under the PCRA and Appellant’s PCRA petition is timely. See 42

Pa.C.S. §§ 9543(a)(2)(ii), 9545(b).

       Generally, this Court follows the Pierce4 test adopted by our Supreme

Court to review claims of ineffective assistance of counsel:

          When a petitioner alleges trial counsel’s ineffectiveness in
          a PCRA petition, he must prove by a preponderance of the
          evidence that his conviction or sentence resulted from
          ineffective   assistance    of   counsel   which,     in   the
          circumstances of the particular case, so undermined the
          truth-determining process that no reliable adjudication of
          guilt or innocence could have taken place. We have
          interpreted this provision in the PCRA to mean that the
          petitioner must show: (1) that his claim of counsel’s
          ineffectiveness has merit; (2) that counsel had no
          reasonable strategic basis for his action or inaction; and
          (3) that the error of counsel prejudiced the petitioner-i.e.,
          that there is a reasonable probability that, but for the error
          of counsel, the outcome of the proceeding would have
          been different. We presume that counsel is effective, and
          it is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal

denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct 2029,

164 L.Ed.2d 782 (2006) (internal citations and quotations omitted).          The

petitioner bears the burden of proving all three prongs of this test.

Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001).                  “If an

appellant fails to prove by a preponderance of the evidence any of the

Pierce prongs, the Court need not address the remaining prongs of the
____________________________________________


4
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009),

appeal denied, 990 A.2d 727 (2010) (citation omitted).

      “[In] Roe v. Flores–Ortega, 528 U.S. 470, 120 S.Ct. 1029 [(2000)],

the United States Supreme Court recognized an ineffective assistance of

counsel claim based upon trial counsel’s failure to consult with his client

concerning the client’s right to file a direct appeal from his judgment of

sentence.” Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super.2011).

“This Court applied Roe to a Pennsylvania criminal defendant seeking to

appeal from his judgment of sentence in Commonwealth v. Touw, 781

A.2d 1250 (Pa.Super.2001).” Id. at 682-83.

      This Court analyzed ineffective assistance of counsel claims concerning

failure to file appeals as follows:

         The Roe Court begins its analysis by noting: “We have
         long held that a lawyer who disregards specific instructions
         from the defendant to file a notice of appeal acts in a
         manner that is professionally unreasonable.” Id. at 477
         [120 S.Ct. 1029.] In Commonwealth v. Touw, 781 A.2d
         1250 (Pa.Super.2001), this Court concisely summarized
         the remainder of the Roe decision as follows:

            The [United States Supreme] Court began its
            analysis by addressing a separate, but antecedent,
            question: “whether counsel in fact consulted with the
            defendant about an appeal.”       The Court defined
            “consult” as “advising the defendant about the
            advantages and disadvantages of taking an appeal,
            and making a reasonable effort to discover the
            defendant’s wishes.” The Court continued[:]

                If counsel has not consulted with the
                defendant, the court must in turn ask a
                second, and subsidiary, question: whether

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              counsel’s failure to consult with the defendant
              itself constitutes deficient performance. That
              question lies at the heart of this case: Under
              what circumstances does counsel have an
              obligation to consult with the defendant about
              an appeal?

        [Roe, at 478, 120 S.Ct. 1029]. The Court answered the
        question by holding:

           [C]ounsel has a constitutionally-imposed duty to
           consult with the defendant about an appeal when
           there is reason to think either (1) that a rational
           defendant would want to appeal (for example,
           because there are non-frivolous grounds for appeal),
           or (2) that this particular defendant reasonably
           demonstrated to counsel that he was interested in
           appealing. In making this determination, courts
           must take into account all the information
           counsel knew or should have known.

        [Id. at 480, 120 S.Ct. 1029]. A deficient failure on the
        part of counsel to consult with the defendant does not
        automatically entitle the defendant to reinstatement of his
        or her appellate rights; the defendant must show
        prejudice. The [Roe] Court held that “to show prejudice in
        these circumstances, a defendant must demonstrate that
        there is a reasonable probability that, but for counsel’s
        deficient failure to consult with him about an appeal, he
        would have timely appealed.” [Id.]

Carter, supra. at 683 (2011) (emphasis added).

     Instantly, Appellant did not have any discussions with trial counsel

after sentencing. N.T., 6/20/14, at 23. Although Appellant claims he called

counsel and left messages expressing his desire to file post-sentence

motions and an appeal, counsel denies receiving the messages.          Id.

However, when counsel received Appellant’s pro se post-sentence motion,

counsel realized that Appellant wanted to file one. Id. The court entered

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Appellant’s judgment of sentence on February 19, 2013. Appellant filed his

pro se post-sentence motion on March 1, 2013.         The court denied this

motion on March 5, 2013.     Although counsel did not remember the exact

date he received Appellant’s post-sentence motion, he recalled:       “When I

received it, it was already after the ten days, and it was denied within a

couple days right after that. I’m not sure if I received the denial almost at

the same time, but we received the denial and that was the end of that

matter.” N.T. at 23-24.

     In denying Appellant’s PCRA petition, the court reasoned:

        In this case, [Appellant] failed to provide the court with
        any testimony or evidence that he contacted Attorney
        Supplee regarding an appeal. Absent any indication that
        [Appellant] wanted to file an appeal, Attorney Supplee did
        not have an obligation to consult with him regarding an
        appeal. Counsel only has a duty to consult with his client
        about an appeal when counsel has “reason to think either
        (1) that a rational defendant would want to appeal…, or
        (2) that this particular defendant reasonably demonstrated
        to counsel that he was interested in appealing.” [Carter,
        supra. at 683].

        Attorney Supplee had no reason to think that [Appellant]
        would want to appeal his sentence. [Appellant] plead
        guilty to lesser counts of the Criminal Information and had
        a binding agreement for a standard range sentence. The
        court, following the agreement, sentenced [Appellant]
        within the standard range. While Attorney Supplee may
        have expressed his hope that the sentence would be less,
        he made no such promise. When the court abided the
        agreement reached between [Appellant] and the
        Commonwealth, Attorney Supplee had no reason to
        believe that [Appellant] would want to file an appeal.
        Accordingly, the Appellant’s claim that counsel was
        ineffective for not filing an appeal is meritless.


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           Because the Appellant is unable to satisfy the prejudice
           prong of the ineffectiveness of counsel prong, we need not
           explore the remaining two prongs of the analysis.

PCRA Opinion at 9-10 (unnecessary capitalization omitted).

      The PCRA court determined Appellant was unable to satisfy the

prejudice prong of the ineffectiveness of counsel test.           To satisfy the

prejudice prong, however, Appellant must only show that there is a

reasonable probability that, but for counsel’s deficient failure to consult with

him about an appeal, he would have timely appealed. See Carter, supra.

Further,    although   the   PCRA   court   stated   that   “Appellant   failed   to

provide…any testimony or evidence that he contacted Attorney Supplee

regarding an appeal,” Appellant testified that he called counsel, wrote a

letter to counsel and filed a pro se post-sentence motion.           Importantly,

counsel admitted receiving the pro se motion before the expiration of the

appeal period.      The court erred by failing to take into account this

information, which should have reasonably demonstrated to counsel that

Appellant wanted to appeal. See Carter, supra.

      In view of the fact that Appellant never exercised his right to a direct

appeal, the trial court should have granted Appellant leave to file an appeal

nunc pro tunc.

      Order reversed and case remanded with instructions that Appellant be

permitted to file a direct appeal nunc pro tunc within thirty (30) days of the

date of this Memorandum.


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     Judge Bowes joins in the memorandum.

     Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015




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