J-S64007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARYL BALKIM WILLIAMS                      :
                                               :
                       Appellant               :   No. 58 WDA 2019

            Appeal from the PCRA Order Entered December 12, 2018
      In the Court of Common Pleas of Cambria County Criminal Division at
                        No(s): CP-11-CR-0002407-2015


BEFORE:      BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                                FILED MARCH 09, 2020

        Daryl Balkim Williams appeals from the December 12, 2018 order

dismissing his petition for relief pursuant to the Post-Conviction Relief Act

(“PCRA”). We vacate and remand so that Appellant may have an opportunity

to pursue a direct appeal nunc pro tunc.

        Appellant’s underlying convictions relate to the events of October 12,

2015, when he shot and injured two individuals inside of a house located at

1131 Ridge Avenue, Johnstown, Pennsylvania. Appellant was arrested, and

charged with a number of crimes in connection with the shooting.

        Appellant was represented by Mary E. Schaffer, Esquire, of the Cambria

County Public Defender Office. On November 9, 2016, Appellant entered a

guilty plea to two counts of aggravated assault, and was sentenced to an

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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aggregate term of seven and one-half to fifteen years of incarceration. On

November 30, 2016, Appellant filed a motion to withdraw his guilty plea,

claiming that he had been “forced” to enter a guilty plea. Contemporaneously,

counsel also filed a motion to withdraw. By order dated January 5, 2017, the

trial court denied both motions. With particular reference to the request to

withdraw, it stated as follows:

      If [Appellant] wishes to file either post[-]sentence motions or
      direct appeal to the Superior Court, the Public Defender’s office is
      duty-bound to file all appropriate motions and/or appeal. After
      any appropriate filings are made, the Public Defender’s
      office can petition this Court to withdraw as counsel and
      alternate counsel shall be appointed.

Order, 1/5/17, at unnumbered 1 (emphasis added).

      Thereafter, Appellant filed no fewer than six letters addressed to

Attorney Schaffer requesting that a direct appeal be filed in his case. See,

e.g., Letter, 1/20/17, at unnumbered 1; Letter, 1/23/17, at unnumbered 1;

Letter, 2/24/17, at unnumbered 1; 4/6/17, at unnumbered 1; Letter, 4/24/17,

at unnumbered 1; Letter, 5/4/17, at unnumbered 1. Each of these letters was

forwarded to Attorney Schaffer pursuant to Pa.R.Crim.P. 576(4), and a written

notice to that effect accompanies each letter in the certified record. Id. In

spite of Appellant’s repeated entreaties, no direct appeal was filed. Indeed,

the certified record indicates Attorney Schaffer took no further action in the

case, irrespective of the trial court’s pointed denial of her motion to withdraw.

      At this juncture, we note that our Supreme Court has stated as follows

regarding the duty attorneys owe to their client in the appellate context:


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      [W]here 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 . . . .

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

omitted). “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.” Commonwealth v. Grosella, 902 A.2d 1290, 1293

(Pa.Super. 2006) (internal citation and emphasis omitted).

      On June 8, 2017, Appellant was forced to file a timely pro se PCRA

petition, which also requested in forma pauperis status.         The trial court

apparently recognized the denial of Appellant’s direct appeal rights described

above, and sua sponte issued an order providing as follows:

      [I]t appearing from the docket entries in this matter that
      [Appellant] was never properly able to exercise his right to seek
      relief on direct appeal, it is hereby ORDERED, DIRECTED and
      DECREED as follows:

         1.   [Appellant] shall be permitted to appeal to the
         Pennsylvania Superior Court, nunc pro tunc.

         2. [Appellant’s] In Forma Pauperis Motion is GRANTED.
         Richard Corcoran, Esq. is hereby appointed to serve as
         counsel for [Appellant] for purposes of filing an Amended
         PCRA Petition.

         3. Attorney Corcoran shall review the pro se filings by
         [Appellant] and determine whether to pursue a direct appeal


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         on the part of [Appellant] or file a no-merit letter with the
         Court.

         4. Notice of this Order shall be forwarded by the Clerk of
         Courts to Attorney Corcoran and [Appellant].

Order, 6/19/17, at unnumbered 1.

      Unfortunately, this order is internally inconsistent and confusing.        It

appoints counsel to Appellant, but simultaneously purports to advance both

Appellant’s direct appeal and PCRA petition.        In relevant part, the order

charges Attorney Corcoran with both filing an amended PCRA petition and

pursuing Appellant’s direct appellate rights. This approach was antithetical to

Pennsylvania law. See Commonwealth v. Williams, 215 A.3d 1019, 1022-

23 (Pa.Super. 2019) (“Generally, a petitioner, such as [Appellant], may only

file a PCRA petition after he has waived or exhausted his direct appeal rights.”

(internal citation omitted)). The proper course of action would have been to

dismiss Appellant’s PCRA petition without prejudice to his ability to re-file after

the exhaustion of his direct appeal rights. Id.

      As a result of the trial court’s confusing order, it appears that no action

was ever taken with respect to Appellant’s direct appellate rights. Rather, the

PCRA proceedings continued, unimpeded. On November 9, 2017, Attorney

Corcoran complied with part of the trial court’s June 19, 2017 order and filed

an amended PCRA petition. Two separate hearings were held with respect to

Appellant’s purported PCRA claims on April 20, 2018, and October 5, 2018.

On November 6, 2018, Attorney Corcoran filed a brief in further support of


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Appellant’s “collateral” claims.   On December 12, 2018, the PCRA court

dismissed Appellant’s PCRA petition and issued a supporting opinion.

Appellant filed a timely notice of appeal, the PCRA court ordered Appellant to

file a concise statement of errors pursuant to Pa.R.A.P. 1925(b), and Appellant

timely complied. The PCRA court also filed a Rule 1925(a) opinion.

      Throughout this process, the full implications of the trial court’s explicit

reinstatement of Appellant’s direct appeal rights were inexplicably overlooked

by all parties. This was patently erroneous. While this case presents an highly

unusual procedural posture, we are convinced that Appellant’s direct appellate

rights still remain unrealized. Irrespective of the judicial resources already

expended in pursuit of Appellant’s now-premature PCRA petition, “[t]he

remedy for the deprivation of this fundamental right of appeal is its

restoration.” Lantzy, supra at 572-73.

      Accordingly, we vacate the order dismissing Appellant’s PCRA petition

and remand to the PCRA court for further proceedings consistent with this

memorandum. On remand, we direct the PCRA court to enter an order that:

(1) reinstates Appellant’s direct appeal rights; and (2) dismisses Appellant’s

PCRA petition without prejudice to his ability to re-file following exhaustion of

his direct appellate rights. Appellant shall have thirty days from the entry of

that order to file a timely direct appeal to this Court. See Pa.R.A.P. 903(a).

      Order vacated.      Case remanded with instructions.            Jurisdiction

relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2020




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