J-S61038-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
GREGORY SCOTT KNAUB,                     :
                                         :
                 Appellant               :     No. 510 MDA 2015

           Appeal from the PCRA Order Entered February 19, 2015
                in the Court of Common Pleas of York County,
            Criminal Division, at No(s): CP-67-CR-0005598-2012,
             CP-67-CR-0005601-2012, CP-67-CR-0005633-2012

BEFORE:     PANELLA, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED DECEMBER 10, 2015

      Gregory Scott Knaub (Appellant) appeals pro se from the February 19,

2015 order that denied his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We reverse and remand with

instructions.

      The certified record before us reveals the following pertinent facts. On

March 21, 2014, Appellant entered guilty pleas to various crimes at each of

the three trial court docket numbers listed above. He was sentenced at each

of those docket numbers on April 28, 2014, resulting in an aggregate

sentence of 14½ to 29 years of imprisonment.            Counsel for Appellant

untimely filed a post-sentence motion on May 12, 2014, which was denied

by order of May 21, 2014. Counsel then untimely filed a notice of appeal on



*Retired Senior Judge assigned to the Superior Court.
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June 18, 2014.     This Court issued a rule to show cause why the appeal

should not be quashed as untimely filed.       Obtaining no response from

Appellant, through counsel or otherwise, this Court sua sponte quashed the

appeal by order of October 17, 2014.

     On December 2, 2014, Appellant timely filed a PCRA petition

referencing all three lower court docket numbers. Therein, Appellant alleged

that plea counsel was ineffective by, inter alia, failing to “do” his appeal.

PCRA Petition, 12/2/2014, at 3. Appellant requested his “appeal rights back

an[d] a lawyer that will help me. I would like him to look over my [w]hole

case.” Id.

     Counsel was appointed, and thereafter filed a motion to withdraw as

counsel and a letter brief pursuant to Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc).    On January 26, 2015, the PCRA court granted counsel

leave to withdraw and issued a notice of intent to dismiss the petition

without a hearing pursuant to Pa.R.Crim.P. 907. On February 19, 2015, the

PCRA court entered an order denying the petition.

     Appellant timely filed a notice of appeal.     The PCRA court ordered

Appellant to file a statement of errors complained of on appeal, and

Appellant timely complied.   The PCRA court filed a statement pursuant to

rule 1925(a) addressing the issues Appellant raised.




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      On appeal, Appellant presents this Court with the following questions.

      [1.] Was the Appellant deprived of his right to direct appellate
      review when appointed counsel filed to file a timely brief in the
      Appellant’s behalf?

      [2.] Was the Appellant prejudiced by the sentencing judge’s
      failure to inform the Appellant of his right to file post-sentence
      motions?

      [3.] By the denial of both post-sentence motions and direct
      appeal, … did the trial court foreclose the Appellant from
      appealing to the Pennsylvania Superior Court the discretionary
      aspects of the sentence?

Appellant’s Brief at 4 (lower court and suggested answers omitted).

      “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine ‘whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.’”

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).

      Appellant’s first argument is that the PCRA court erred in determining

that there was no merit to his claim that plea/direct appeal counsel was

ineffective in failing to perfect his direct appeal. Appellant’s Brief at 7, 9-10.

The Commonwealth argues that Appellant waived this claim by failing to

raise it in his PCRA petition and by raising it for the first time on appeal.

Commonwealth’s Brief at 10-11, 15.

      As detailed above, Appellant’s PCRA petition clearly claimed that he

wanted his direct appeal rights reinstated given counsel’s failure to “do” the



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appeal the first time around.           PCRA Petition, 12/2/2014, at 3.        In his

1925(b) statement, Appellant claimed that his prior counsel “refus[ed] to file

an appeal in a timely ma[nn]er, which deprived [Appellant] of his right to

appeal.”     Concise Statement, 4/20/2015, at ¶ (2)(H).            Appellant further

referenced    his   right   to   have    the   assistance   of   counsel   through   a

discretionary appeal to the Pennsylvania Supreme Court and his request to

“be granted new counsel to help him do so.” Id.

      Thus, we disagree with the Commonwealth and with the PCRA court,

which opined that the issue stated in paragraph (2)(H) of Appellant’s

1925(b) statement was not raised in the PCRA petition “and is nonsensical.”

1925(a) Statement, 5/28/2015, at 8.             The issue of whether Appellant’s

plea/direct appeal counsel was ineffective for failing to perfect his direct

appeal is properly before us.

      Turning to the merits of the issue, we begin by noting that counsel is

presumed to be effective.        Commonwealth v. Simpson, 112 A.3d 1194,

1197 (Pa. 2015). To prevail on a claim of ineffective assistance of counsel, a

PCRA petitioner ordinarily must prove each of the following: “(1) the

underlying legal claim was of arguable merit; (2) counsel had no reasonable

strategic basis for his action or inaction; and (3) the petitioner was

prejudiced—that is, but for counsel’s deficient stewardship, there is a




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reasonable likelihood the outcome of the proceedings would have been

different.” Id. However,

      where there is an unjustified failure to file a requested direct
      appeal, the conduct of counsel falls beneath the range of
      competence demanded of attorneys in criminal cases, denies the
      accused the assistance of counsel guaranteed by the Sixth
      Amendment to the United States Constitution and Article I,
      Section 9 of the Pennsylvania Constitution, as well as the right to
      direct appeal under Article V, Section 9, and constitutes
      prejudice for purposes of Section 9543(a)(2)(ii). Therefore, in
      such circumstances, and where the remaining requirements of
      the PCRA are satisfied, the petitioner is not required to establish
      his innocence or demonstrate the merits of the issue or issues
      which would have been raised on appeal.

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (footnote

omitted). “Lantzy’s reasoning expressly subsumed not only the unjustified

failure to file a requested direct appeal, but also, the failure to perfect the

appeal.” Commonwealth v. Halley, 870 A.2d 795, 800 (Pa. 2005). “[T]he

failure to perfect a requested direct appeal is the functional equivalent of

having no representation at all.” Id. at 801.

      It is apparent from the record before us that Appellant wanted to file a

direct appeal and that, because counsel did file an appeal, counsel knew of

Appellant’s desire. See, e.g., Commonwealth v. Johnson, 889 A.2d 620,

622 n.3 (Pa. Super. 2005) (“[T]he first two prongs [of the test for ineffective

assistance of counsel] are clearly met where counsel fails to follow

procedural rules to ensure requested appellate review of a criminal

defendant’s claims.”). The record also shows that counsel failed to perfect



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the appeal by timely filing the notice of appeal. The untimely nature of the

appeal resulted in its quashal, depriving Appellant of his right to a direct

appeal under Article V, Section 9 of the Pennsylvania Constitution.

Accordingly, the PCRA court erred in denying Appellant’s petition to the

extent that he sought reinstatement of his direct appeal rights.1

      Therefore, we reverse the PCRA court’s February 19, 2015 order which

denied Appellant’s petition.   Upon remand, the PCRA court shall enter an

order reinstating Appellant’s direct appeal rights, appointing counsel to

represent Appellant on his direct appeal, and establishing the deadline for

the filing of Appellant’s direct appeal nunc pro tunc.2

      Order reversed.      Case remanded with instructions.         Jurisdiction

relinquished.

1
  The record does not reflect the reasons for the PCRA court’s determination
that Appellant’s claim lacked merit. The only analysis of the claim in the
record is contained in the Turner/Finley letter filed by PCRA counsel.
Therein, PCRA counsel asserted that Appellant was able to establish the first
two prongs of the ineffectiveness test. Turner/Finley Letter, 12/26/2014,
at 2-3 (pages unnumbered). However, counsel opined that the claim lacked
merit because Appellant was unable to establish that he was prejudiced by
counsel’s failure to perfect the appeal. Id. at 3-4. As discussed above, no
showing of prejudice is required when counsel fails to perfect a requested
appeal. Thus, to the extent that the PCRA court relied upon PCRA counsel’s
analysis in dismissing Appellant’s petition, it committed an error of law.
2
  We do not address the remaining issues Appellant raises in his brief
because they present claims of trial court error which are subjects for direct
appeal, not for a PCRA petition. See, e.g., Commonwealth v. Abdul-
Salaam, 808 A.2d 558, 560 (Pa. 2001) (holding claims of trial court error
which could have been raised on direct appeal were “beyond the power of
this Court to review under the express terms of the PCRA”).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/10/2015




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