J-S28012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                       Appellee

                       v.

LLOYD GEORGE MAYS,

                       Appellant                   No. 1887 MDA 2014


               Appeal from the PCRA Order October 23, 2014
             In the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0000643-2011


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY BOWES, J.:                            FILED JUNE 05, 2015

      Lloyd George Mays appeals from the order entered October 23, 2014,

denying his first counseled PCRA petition. We reverse and remand.

      A jury found Appellant guilty of two counts each of rape, involuntary

deviate sexual intercourse (“IDSI”), sexual assault, and one count of simple

assault.   As a detailed description of the facts is unnecessary to our

disposition, we need not reiterate them in full. The facts underlying these

charges stem from two separate sexual assaults on Appellant’s sixty-seven

year old mother with whom he was residing at the time. Appellant vaginally

and anally raped his mother and performed oral sex on her.          A more

extensive factual history can be gleaned from the trial court’s October 10,

2012 opinion.
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      Following the jury verdict, the court initially imposed an aggregate

sentence of thirty-one to eighty-two years imprisonment on June 27, 2012.

Specifically, the court imposed four consecutive sentences of seven and one-

half to twenty years incarceration for the rape and IDSI charges, and a

consecutive one to two-year jail sentence for simple assault. It concluded

that the sexual assault charges merged with the rape counts. Appellant filed

a timely post sentence motion on July 9, 2012. Among Appellant’s claims

was a sentencing merger issue.                The court agreed that merger applied

relative to one count of rape and one count of IDSI.                   Accordingly, on

November     28,     2012,    the    court    imposed     an    aggregate   sentence    of

incarceration of twenty-three and one-half to sixty-two years.

      Appellant again filed a timely post-sentence motion. The court denied

that motion on January 31, 2013. A timely direct appeal ensued. This Court

affirmed   Appellant’s     judgment      of    sentence    on    November      19,   2013.

Commonwealth v. Mays, 91 A.3d 1289 (Pa.Super. 2013). Appellant did

not seek review with the Pennsylvania Supreme Court.

      Appellant timely filed a PCRA petition on June 25, 2014, and the court

appointed counsel the next day. The PCRA court conducted an evidentiary

hearing on August 21, 2014, and directed the parties to file memoranda of

law   in   support    of     their   respective    positions.      Appellant    and    the




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Commonwealth complied.           Appellant contended that direct appeal counsel

was ineffective in failing to seek permission for allowance of appeal.1

       The PCRA court denied Appellant relief, incorrectly positing that

Appellant was required to show that the Pennsylvania Supreme Court would

have granted his petition. Indeed, the PCRA court erroneously maintained

that the “reinstatement of direct appeal rights for counsel’s failure to appeal

to the Superior Court is different from counsel’s failure to file a petition for

allowance of appeal in the Supreme Court of Pennsylvania.”          PCRA Court

Opinion, 10/23/14, at 9. This is in direct contradiction of Commonwealth

v. Liebel, 825 A.2d 630 (Pa. 2003), which we discuss in more detail infra.

Appellant timely appealed. The matter is now ready for this Court’s review.

Appellant’s sole contention on appeal is “whether appellate counsel was

ineffective for failing to file an appeal on Defendant’s behalf?”   Appellant’s

brief at 4.

       In reviewing a PCRA appeal, we consider the record “in the light most

favorable to the prevailing party at the PCRA level.”      Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).           In performing this

review, we consider the evidence of record and the factual findings of the
____________________________________________


1
  Appellant represented himself during trial with the assistance of stand-by
counsel. Stand-by counsel was also appointed for purposes sentencing and
appeal.



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PCRA court. Id. We afford “great deference to the factual findings of the

PCRA court and will not disturb those findings unless they have no support in

the record.”      Id.    Accordingly, so long as a PCRA court’s ruling is free of

legal error and is supported by record evidence, we will not disturb its

decision.   Id.    However, where the issue presents a question of law, “our

standard of review is de novo and our scope of review is plenary.” Id.

       Here, it is beyond cavil that the PCRA court’s rationale is an error of

law.      In Liebel, our Supreme Court expressly rejected the identical

reasoning proffered by the PCRA court. There, the Liebel Court relied on its

earlier decision in Commonwealth v. Lantzy, 736 A.2d 534 (Pa. 1999),

which involved the failure to file a direct appeal and applied the same

standard in the context of the failure to seek permission of allowance of

appeal.      The        Commonwealth    specifically   argued   that   Lantzy   was

inapplicable because a defendant has a constitutional right to a direct

appeal, but only a discretionary right to review by the Pennsylvania Supreme

Court.    In rejecting that position, the Supreme Court determined that the

failure to file a discretionary appeal could constitute abandonment of counsel

and entitle a defendant to reinstatement of his appellate right to seek

permission for allowance of appeal.          Accordingly, counsel can be per se

ineffective for failing to file a requested petition for allowance of appeal.

Thus, the PCRA court plainly erred in concluding that Appellant was required


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to show that the Supreme Court would have granted his discretionary

appeal.   See also Commonwealth v. Reed, 971 A.2d 1216, 1225 (Pa.

2009) (noting three circumstances where prejudice is presumed and citing

Liebel, supra); Commonwealth v. Brown, 18 A.3d 1147 (Pa.Super.

2011).

      Instantly, Appellant and counsel acknowledged that Appellant had

asked counsel to appeal his convictions “all the way.” N.T., 8/21/14, at 6.

Although Appellant did not tell counsel to appeal to the “Pennsylvania

Supreme Court,” such talismanic words are not required. Here, it is evident

that appealing all the way includes seeking discretionary review. Counsel’s

failure to appeal also was the result of purportedly not receiving this Court’s

emailed decision prior to the appeal period expiring.      Thus, his alerting of

Appellant that he could seek further review pro se after the appeal period for

filing a petition for allowance of appeal expired is immaterial.

      Since the PCRA court erred, we reverse and remand with directions for

the PCRA court to reinstate Appellant’s right to file a petition for allowance of

appeal upon the return of the record. Appellant shall have thirty days from

the entry of that order to file a petition for allowance of appeal nunc pro

tunc. Cf. Comment to Pa.R.Crim.P. 908 (“When the disposition reinstates a

defendant's direct appeal rights nunc pro tunc, the judge, pursuant to

paragraph (E), also must advise the defendant that a new notice of appeal


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must be filed within 30 days of the order reinstating the direct appeal

rights.”).

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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