J-S65035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DENNIS JOHN VELEZ,

                            Appellant                   No. 799 EDA 2014


                 Appeal from the PCRA Order January 31, 2014
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No.: CP-39-CR-0004257-2010


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 24, 2015

        Appellant, Dennis John Velez, purports to appeal nunc pro tunc from

the judgment of sentence imposed following entry of a negotiated guilty plea

to third-degree murder and conspiracy to commit robbery.1            Appellant

challenges the discretionary aspects of his sentence, contending that the

trial court imposed the statutory maximum sentence because of its bias or ill

will against him. We are constrained to conclude that the PCRA court erred

in reinstating Appellant’s right to file a post-sentence motion nunc pro tunc.

We therefore vacate the January 31, 2014 order reinstating this right and


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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(c) and 903(c), respectively.
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remand     to    the   PCRA     court    for   proceedings   consistent   with   this

memorandum.

       A previous panel of this Court set forth the factual history of this case

as follows:
             Appellant and Christian Bueno set out in the early morning
       hours of September 8, 2007 intending to find a victim to rob. A
       third person, Amarilys Soto drove their vehicle. The pair came
       upon Debra Robertson who was asleep in her van which was
       parked in the parking lot of Diamondz nightclub in Bethlehem.
       During the course of the robbery, Bueno shot and killed
       Robertson. Ultimately, when [A]ppellant became a suspect, he
       cooperated with police, and helped in the prosecution of Bueno.
       Soto was not charged.

(Commonwealth v. Velez, No. 3104 EDA 2011, unpublished memorandum

at *1 (Pa. Super. filed Sept. 17, 2012)).

       On September 15, 2011, Appellant pleaded guilty to the above-stated

offenses. The only condition of Appellant’s open plea agreement was that

the trial court would run the sentences it imposed concurrently.                  In

exchange for the plea, Appellant agreed to testify truthfully at Bueno’s trial.

On October 21, 2011, the trial court sentenced Appellant to an aggregate

term of not less than twenty nor more than forty years’ incarceration. 2 On

October 31, 2011, Appellant filed a timely post-sentence motion seeking

reconsideration of his sentence, claiming that it was excessive in light of his
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2
  Specifically, the trial court sentenced Appellant to a term of not less than
twenty nor more than forty years’ incarceration for third-degree murder, and
a term of not less than five nor more than ten years’ incarceration for
conspiracy to commit robbery, to run concurrently. (See N.T. Sentencing
Hearing, 10/21/11, at 27-28).



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cooperation with police. The trial court denied the post-sentence motion on

November 2, 2011.

        On November 15, 2011, Appellant filed a timely direct appeal raising

two    issues    challenging    the    discretionary   aspects   of    his   sentence.3

Specifically, he alleged that his sentence was the result of trial court bias,

and that his sentence was excessive considering his cooperation with police.

(See Velez, supra at *4).           On September 17, 2012, this Court affirmed

Appellant’s judgment of sentence, concluding that he waived the issue of

trial court bias by failing to raise it at sentencing or in his post-sentence

motion, and that the issue challenging his sentence as excessive in light of

his cooperation with police failed to raise a substantial question. (See id. at

*4).    Appellant did not file a petition for allowance of appeal with our

Supreme Court.

        On September 13, 2013, Appellant filed a timely pro se petition

pursuant to the Post Conviction Relief Act (PCRA).4                   The PCRA court

appointed counsel who filed an amended petition on October 16, 2013. In

the petition, Appellant asserted that his plea was not knowing, intelligent, or

voluntary.      (See Amended PCRA Petition, 10/16/14, at unnumbered page
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3
   Although Appellant purported to present three issues, this Court
determined that two of the claims (the first and the third) raised identical
challenges alleging that the sentencing court was biased. (See Velez,
supra at *2, *4).
4
    See 42 Pa.C.S.A. §§ 9541-9546.



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1).   Appellant also claimed that trial counsel was ineffective inter alia for

failing to preserve the issue of trial court bias in imposing the sentence,

resulting in waiver of that issue on direct appeal. (See id. at unnumbered

page 2). Appellant requested that the court grant him the right to withdraw

his guilty plea, or alternatively, grant him permission to file a post-sentence

motion nunc pro tunc to raise the issue of trial court bias at sentencing.

(See id.).

      On January 29, 2014, the PCRA court held a hearing on the amended

PCRA petition, at which it heard no argument or testimony regarding

Appellant’s   PCRA   claims.      Instead,   the   Commonwealth   agreed   with

Appellant’s counsel to ask the court to allow Appellant to file a post-sentence

motion to reconsider sentence nunc pro tunc, in exchange for Appellant’s

agreement to withdraw his remaining PCRA claims.              (See N.T. PCRA

Hearing, 1/29/14, at 2-3). The PCRA court agreed. On January 31, 2014,

pursuant to the agreement of counsel, as expressly agreed to by Appellant,

the PCRA court entered an order directing Appellant to file a post-sentence

motion nunc pro tunc within ten days of January 29th, and confirming his

withdrawal of all other PCRA issues. (See Order, 1/31/14).

      On February 4, 2014, Appellant filed a timely post-sentence motion

nunc pro tunc, which the trial court denied by order entered February 18,

2014. In a footnote to the February 18th order, the court concluded that

Appellant’s claim that it was biased or possessed ill will towards him at

sentencing is “baseless.”      (Order, 2/18/14, at 1 n.1).   On March 6, 2014,

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Appellant filed his notice of appeal, purporting to appeal from the trial

court’s February 18, 2014 order denying his nunc pro tunc post-sentence

motion.5    The trial court directed Appellant to file a concise statement of

errors complained of on appeal and he timely complied on March 27, 2014.

See Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on March 31,

2014, in which it relied on and incorporated its February 18, 2014 order.

See Pa.R.A.P. 1925(a).6
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5
  Although Appellant purports to appeal from the court’s order denying his
post-sentence motion, “a direct appeal in a criminal case can only lie from
the judgment of sentence.” Commonwealth v. Lawrence, 99 A.3d 116,
117 n.1 (Pa. Super. 2014) (citation omitted) (noting that appeal from order
denying post-sentence motion is improper).
6
  We note that the PCRA court’s January 31, 2014 order reinstating
Appellant’s right to file a post-sentence motion nunc pro tunc did not
expressly grant him the right to file a direct appeal nunc pro tunc after the
court disposed of his post-sentence motion. However,

       the term nunc pro tunc means “now for then.” See Black’s Law
       Dictionary, at 1069, (Sixth Edition 1990). It is “a phrase applied
       to acts allowed to be done after the time when they should be
       done, with a retroactive effect, i.e., with the same effect as if
       regularly done.” Id. Thus, reinstatement of [post-sentence]
       rights nunc pro tunc denotes that the appellant now has the
       same . . . rights as he would have had in the beginning.

Commonwealth v. Wright, 846 A.2d 730, 735 (Pa. Super. 2004).

     “[W]hen the trial court grants a request to file a post-sentence motion
nunc pro tunc, the post-sentence motion filed as a result must be treated as
though it were filed within the 10-day period following the imposition of
sentence.” Commonwealth v. Dreves, 839 A.2d 1122, 1129 (Pa. Super.
2003) (en banc). Therefore, in the instant case, if this were a proper direct
appeal, Appellant had thirty days within which to file a direct appeal
(Footnote Continued Next Page)


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      Appellant raises the following issue for our review:

      A.   Did the trial court err in denying [Appellant’s] motion to
      modify sentence for the following reasons:

             1.  The presentence investigation recommendation
             was for 18 to 40 years in a SCI which the
             Commonwealth was in agreement with.

             2.    It appeared that the court was willing to follow
             the    recommendations       of   the     presentence
             investigation    and    the    Commonwealth       until
             [Appellant] raised the issue of why an unindicted co-
             conspirator had not been charged, at which point the
             court appeared to become annoyed.

             3.    [Appellant] is alleging that the court imposed
             the statutory maximum because of bias or ill-will as
             a result of his statements regarding the unindicted
             co-conspirator.

(Appellant’s Brief, at 4) (most capitalization omitted).

      Before we may reach the merits of Appellant’s issue, we must address

whether this appeal is properly before us. Specifically, we must determine

whether the PCRA court properly reinstated Appellant’s right to file a post-

sentence motion nunc pro tunc.             See Commonwealth v. Grosella, 902

A.2d 1290, 1293 (Pa. Super. 2006) (addressing as preliminary matter

whether appellant’s purported nunc pro tunc direct appeal was properly

before Court where he previously filed direct appeal in which we affirmed

judgment of sentence).
                       _______________________
(Footnote Continued)

following entry of the court’s order denying his nunc pro tunc post-sentence
motion. See Pa.R.Crim.P. 720(A)(2)(a).




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     “When reviewing an order [granting or] denying PCRA relief, we must

determine whether the PCRA court’s determination is supported by the

record and is free from legal error.” Commonwealth v. Poplawski, 852

A.2d 323, 327 (Pa. Super. 2004) (citation omitted).

     To be eligible for relief under the PCRA on grounds of ineffective

assistance of counsel, a petitioner must plead and prove by a preponderance

of the evidence that the conviction or sentence resulted from “[i]neffective

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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

            It is well-settled that an accused who is deprived entirely
     of his right of direct appeal by counsel’s failure to perfect an
     appeal is per se without the effective assistance of counsel, and
     is entitled to reinstatement of his direct appellate rights. In
     those extreme circumstances, where counsel has effectively
     abandoned his or her client and cannot possibly be acting in the
     client’s best interests, our Supreme Court has held that the risk
     should fall on counsel, and not his client.

           However, it is also well-settled that the reinstatement of
     direct appeal rights is not the proper remedy when appellate
     counsel perfected a direct appeal but simply failed to raise
     certain claims. Where a petitioner was not entirely denied
     his right to a direct appeal and only some of the issues the
     petitioner    wished     to   pursue     were     waived,   the
     reinstatement of the petitioner’s direct appeal rights is
     not a proper remedy.           In such circumstances, the
     appellant must proceed under the auspices of the PCRA,
     and the PCRA court should apply the traditional three-




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       prong test for determining whether appellate counsel was
       ineffective.[7]

Commonwealth v. Mikell, 968 A.2d 779, 781-82 (Pa. Super. 2009),

appeal denied, 985 A.2d 971 (Pa. 2009) (citations and internal quotation

marks omitted) (first emphasis in original; second emphasis added)

(concluding that appellant not entitled to reinstatement of direct appeal

rights nunc pro tunc where this Court deemed his issues on direct appeal

waived, but he was not entirely deprived of an appeal).

       Here, at the hearing, the PCRA court agreed to reinstate Appellant’s

right to file a post-sentence motion nunc pro tunc and, in effect, his right to

file a direct appeal, without hearing any evidence, in particular on

Appellant’s substantive PCRA claim that trial counsel was ineffective for

failing to preserve his issue alleging trial court bias at sentencing. (See N.T.

PCRA Hearing, 1/29/14, at 2-3).                The PCRA court simply accepted the

agreement reached by the parties without attempting to apply the three-

pronged ineffective assistance of counsel test. (See id.); see also Mikell,

supra at 782; Grosella, supra at 1294 n.7.              Further, despite the court’s

grant of PCRA relief in its order reinstating Appellant’s right to file a post-

sentence motion, it stated its finding that the underlying issue Appellant
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7
  “The three-prong [ineffective assistance of counsel] test requires an
appellant to establish[:] 1) the underlying claim is of arguable merit; 2)
counsel had no reasonable basis for the act or omission in question; and 3)
but for counsel’s act or omission, the outcome of the proceedings would
have been different.” Grosella, supra at 1294 n.7 (citation omitted).



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wished to raise on direct appeal alleging trial court bias at sentencing was

“baseless,” indicating its belief that counsel was not ineffective for failing to

preserve this claim for direct appeal. (Order, 2/18/14, at 1 n.1); see also

Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007), appeal

denied, 951 A.2d 1163 (Pa. 2008) (“Counsel cannot be found ineffective for

failing to pursue a baseless or meritless claim”) (citation omitted).

      Under these circumstances, we conclude that the PCRA court erred in

reinstating Appellant’s right to file a post-sentence motion nunc pro tunc. As

discussed above, “[w]here a petitioner was not entirely denied his right to a

direct appeal and only some of the issues the petitioner wished to pursue

were waived, the reinstatement of the petitioner’s direct appeal rights is not

a proper remedy.”     Mikell, supra at 781 (emphasis in original; citations

omitted).   “In such circumstances, the appellant must proceed under the

auspices of the PCRA, and the PCRA court should apply the traditional three-

prong test for determining whether appellate counsel was ineffective.” Id.

at 782 (citation omitted).

      This is not a case where counsel abandoned Appellant, such that he

was denied his right to file a post-sentence motion or direct appeal entirely.

To the contrary, Appellant filed a timely post-sentence motion and a direct

appeal, and this Court affirmed the judgment of sentence. Although counsel

did not preserve all issues Appellant wished to raise on direct appeal,

resulting in waiver of his claim asserting trial court bias, this is not a case


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involving per se ineffectiveness. See id. at 781. Therefore, the PCRA court

should have considered the merits of Appellant’s ineffective assistance of

counsel claim applying the traditional three-pronged test before granting or

denying PCRA relief.    See id. at 782; see also Grosella, supra at 1294

(determining that PCRA court erred in reinstating appellant’s direct appeal

rights without applying three-pronged ineffectiveness test where counsel

filed a direct appeal, but did not pursue all issues appellant wished to raise);

see also 42 Pa.C.S.A. § 9543(a)(2)(ii) (petitioner must plead and prove

ineffective assistance of counsel by preponderance of evidence to be eligible

for relief).

       Accordingly, we are constrained to vacate the PCRA court’s January

31, 2014 order and remand this matter to the court for proceedings

consistent with this memorandum. Upon remand, the court should consider

all of the cognizable claims raised in Appellant’s amended PCRA petition.

       Order vacated.     Case remanded with instructions.          Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015



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