J-S20028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                             Appellee

                        v.

    MARC HAWORTH

                             Appellant              No. 2850 EDA 2019


            Appeal from the PCRA Order Entered September 9, 2019
                In the Court of Common Pleas of Bucks County
               Criminal Division at No.: CP-09-CR-0002723-2017


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                            FILED JULY 28, 2020

       Appellant Marc Haworth appeals from the September 9, 2019 order of

the Court of Common Pleas of Bucks County (“PCRA court”), which denied,

without a hearing, his petition under the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-46. Upon review, we vacate and remand for an evidentiary

hearing.

       The facts and procedural history of this case are undisputed. 1 On

October 16, 2017, Appellant pled guilty to multiple counts of home

improvement fraud, deceptive business practices, and theft. On January 5,

2018, the trial court sentenced Appellant to an aggregate term of five to ten

years’ imprisonment followed by a consecutive term of five years’ probation.


____________________________________________


1Unless otherwise noted, these facts are taken from the trial court’s November
25, 2019 opinion. See Trial Court’s Opinion, 11/25/19, at 1.
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Appellant also was directed to pay restitution for $191,404.52. On January

11, 2018, Appellant filed a post-sentence motion. Following a hearing, the

trial court denied the motion on April 17, 2018. Appellant did not file a direct

appeal. His judgment of sentence became final on May 17, 2018.

      On March 14, 2019, Appellant pro se filed the instant PCRA petition. The

PCRA court appointed counsel, who, on July 19, 2019, filed an amended

petition, asserting claims of ineffective assistance of counsel.             Appellant

alleged, inter alia, that his trial counsel was ineffective for failing to file a direct

appeal, advising and allowing him to enter into a guilty plea whose

consequences he did not fully appreciate, and failing to withdraw his guilty

plea. Appellant alleged that he “he requested counsel to file an appeal on his

behalf.” Amended Petition, 7/19/19, at ¶ 17(d). Appellant attached to his

amended petition a “Statement of Counsel Pursuant to Pa.R.Crim.P.

902(A)(12),” by which each of his two trial counsels respectively stated in

relevant part:

      3. I decline to provide a detailed statement explaining all of my
      reasons for my actions and recommendations when representing
      [Appellant], but will state that at all times I used what I considered
      to be my best judgment and brought to bear my years of
      experience representing criminal defendants when representing
      [Appellant].

      4. I will testify and respond to all questions at a hearing ordered
      by a court in lieu of an affidavit.

On August 6, 2019, the Commonwealth filed an answer opposing Appellant’s

amended petition. On August 15, 2019, the PCRA court issued a Pa.R.Crim.P.



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907 notice of its intent to dismiss the petition without a hearing.              On

September 4, 2019, Appellant responded to the court’s Rule 907 notice,

requesting an evidentiary hearing in light of his allegation that he requested

his counsel to file a direct appeal.           On September 9, 2019, the trial court

denied Appellant PCRA relief without a hearing. Appellant timely appealed.

Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

       On appeal,2 Appellant presents two issues for our review.

       [I.] Did the lower court err in denying Appellant’s [PCRA] petition
       without a hearing where trial counsel was ineffective for failing to
       file a direct appeal on Appellant’s behalf after being requested to
       do so?

       [II.] Did the lower court err in denying Appellant’s [PCRA] petition
       without a hearing where trial counsel was ineffective for allowing
       Appellant to pled guilty and for failing to withdraw Appellant’s
       guilty plea under circumstances where the guilty plea was not
       knowingly, voluntarily and intelligently entered?

Appellant’s Brief at 4 (unnecessary capitalizations omitted).

       As stated, Appellant’s claims before us involve ineffective assistance of

counsel. A PCRA petitioner is entitled to relief if he pleads and proves that

prior counsel rendered ineffective assistance of counsel.            42 Pa.C.S.A. §

9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner

must plead and prove by a preponderance of the evidence that (1) the

underlying legal claim has arguable merit; (2) counsel had no reasonable basis
____________________________________________


2“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).



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for acting or failing to act; and (3) the petitioner suffered resulting prejudice.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015)

(en banc). “A petitioner must prove all three factors of the “Pierce[3] test,”

or the claim fails.” Id. Put differently, “[t]he burden of proving ineffectiveness

rests with Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa.

2005).

       We first address Appellant’s claim that the PCRA court erred in declining

to hold an evidentiary hearing with respect to whether his trial counsels were

ineffective in failing to file an allegedly requested direct appeal.

       Our Supreme Court has held that counsel’s unexplained failure to
       file a requested direct appeal constitutes ineffective assistance per
       se, such that the petitioner is entitled to reinstatement of direct
       appeal rights nunc pro tunc without establishing prejudice.
       However, before a court will find ineffectiveness of counsel for
       failing to file a direct appeal, the petitioner must prove that he
       requested a direct appeal and the counsel disregarded the
       request. . . . .

Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011) (internal

citations, and ellipsis omitted; formatting amended; emphasis added), appeal

denied, 30 A.3d 487 (Pa. 2011). With respect to an evidentiary hearing, we

explained in Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super. 2015)

(en banc), aff’d, 158 A.3d 618 (Pa. 2017):

       There is no absolute right to an evidentiary hearing.        See
       Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super.
       2008). On appeal, we examine the issues raised in light of the
       record “to determine whether the PCRA court erred in concluding
       that there were no genuine issues of material fact and in denying
       relief without an evidentiary hearing.” Id.
____________________________________________


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


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Burton, 121 A.3d at 1067. Moreover, “to obtain reversal of a PCRA court’s

decision to dismiss a petition without a hearing, an appellant must show that

he raised a genuine issue of fact which, if resolved in his favor, would have

entitled him to relief, or that the court otherwise abused its discretion in

denying a hearing.” Commonwealth v. D’Amato, 856 A.2d 806, 820 (Pa.

2004).

        Instantly, our review of the record confirms that Appellant alleged in his

amended PCRA petition, in his response to the PCRA court’s Rule 907 notice,

and in his brief on this appeal that he requested his trial counsels to file a

direct appeal. According to Appellant, his counsels allegedly disregarded his

request. Moreover, trial counsels did not reject Appellant’s allegations in their

respective statements, which were not affidavits.        They, however, appear

willing and able to participate in an evidentiary hearing. Given the serious

nature of Appellant’s claim, and the importance of direct appeals in criminal

cases, we remand this matter to the PCRA court to conduct an evidentiary

hearing and render necessary findings of fact to determine whether

Appellant’s contention that his counsels disregarded his request for a direct

appeal carries any merit. Without such findings, we are unable to engage in

meaningful appellate review of the PCRA court’s decision in this case.

Counsels’ unexplained failure to file a requested direct appeal constitutes

ineffective assistance per se.4

____________________________________________


4   We express no opinions on the merits of Appellant’s PCRA claims.

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      Similarly, we are unable to conduct meaningful appellate review of

Appellant’s second issue that counsel refused to withdraw his guilty plea on

the basis the plea was not knowingly, voluntarily, and intelligently made.

Without a proper record upon which necessary findings of fact are made by

the PCRA court, this issue cannot be decided.

      Upon remand, if the court determines, following a hearing, that

Appellant satisfies the criteria for collateral relief on any of the two issues

raised, then appropriate relief should be granted as is appropriate to the claim

made.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2020




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