J-S41037-13


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                     Appellee

                      v.

DENTA RUFFIN,

                    Appellant                        No. 3013 EDA 2012


           Appeal from the PCRA Order Entered September 21, 2012
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division at No(s): CP-51-CR-0005353-2009

BEFORE: BENDER, BOWES, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED NOVEMBER 19, 2014

        Denta Ruffin (Appellant) appeals from the order entered September

21, 2012, dismissing his petition filed pursuant to the Post Conviction Relief

Act (PCRA).1       We vacate the PCRA court’s order and remand for an

evidentiary hearing.

        On March 2, 2010, following a jury trial, Appellant was convicted of

possession with intent to deliver a controlled substance, possession of a

controlled substance, and eluding police. Prior to sentencing, Appellant and

the Commonwealth agreed upon a six-to-twelve year term of incarceration.

On April 22, 2010, Appellant was sentenced.       The trial court accepted the


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1
    42 Pa.C.S. §§ 9541-9546.


*Retired Judge assigned to the Superior Court.
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agreement and sentenced Appellant to the negotiated term of incarceration,

followed by two years of consecutive probation.

      No direct appeal was filed. On December 17, 2010, Appellant filed a

timely pro se PCRA petition alleging that trial counsel refused to file a direct

appeal on his behalf.    In his petition, Appellant requested that the PCRA

court reinstate his direct appeal rights nunc pro tunc. Counsel was

appointed, and on October 21, 2011, an amended PCRA petition was filed.

The amended petition asserted that Appellant had requested trial counsel to

appeal his conviction, but counsel had failed to do so.         Amended PCRA

Petition, 10/21/2011, at 2. On September 21, 2012, the PCRA court entered

an order dismissing Appellant’s PCRA petition. This timely appeal followed.

The PCRA court ordered Appellant to file a 1925(b) statement of errors, and

one was filed.

      On appeal, Appellant raises the sole issue of whether the PCRA court

erred in dismissing his petition in light of his claims of ineffective assistance

of trial counsel. Appellant’s Brief at 3.   Appellant contends that he asked

counsel to file an appeal, and despite counsel’s assurances, Appellant later

learned that counsel had not done so. Thus, Appellant alleges that trial

counsel was ineffective, and as such, his direct appeal rights should have

been reinstated by the PCRA court nunc pro tunc.




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       After a review of the record, we determined that our resolution of

Appellant’s issue depended, in large part, on whether the PCRA court

dismissed his PCRA petition without a hearing under Pa.R.Crim.P. 907, or

whether a hearing was held. The certified record and briefs of the parties

conflicted as to this issue.          Accordingly, on September 24, 2013, we

remanded the matter for the PCRA court to make a factual finding as to

whether a hearing was held on Appellant’s PCRA petition. The PCRA court

was directed to forward any existing notes of testimony to this Court.

       Nearly a year later, on September 24, 2014, we received a

supplemental opinion from the PCRA court.2 The court indicated that “in lieu

of a hearing” on Appellant’s petition, it reviewed the record and determined

Appellant’s issue was without merit on the basis that Appellant’s acceptance

of the negotiated plea was made knowingly, intelligently and voluntarily, and

because Appellant made “the voluntary decision to waive his appellate

rights on the record at sentencing.” Supplemental Opinion, 9/24/2014,

at 3 (emphasis added).

       Preliminarily, we note that, in reviewing the propriety of an order

granting or denying PCRA relief, an appellate court is limited to ascertaining

whether the record supports the determination of the PCRA court and

whether the ruling is free of legal error. Commonwealth v. Johnson, 966
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2
 We note with displeasure, particularly in light of our result herein, that the
PCRA court delayed Appellant’s relief for a year, without explanation.



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A.2d 523, 532 (Pa. 2009). This Court grants great deference to the findings

of the PCRA court if the record contains any support for those findings.

Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 2007).

      “There is no absolute right to an evidentiary hearing on a PCRA

petition, and if the PCRA Court can determine from the record that no

genuine issues of material fact exist, then a hearing is not necessary.”

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). Further,

“[a] reviewing court must 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 denying relief without an

evidentiary hearing.” Commonwealth v. Springer, 961 A.2d 1262, 1264

(Pa. Super. 2008) (citation omitted).

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

Supreme Court held that, where there is an unjustified failure by counsel to

file a requested direct appeal, the conduct of counsel constitutes “prejudice”

per se for purposes of establishing the ineffective assistance of counsel

under the PCRA. The Supreme Court specifically stated that,

      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, [denying]
      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

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         his innocence or demonstrate the merits of the issue or issues
         which would have been raised on appeal.

Lantzy, 736 A.2d at 572 (footnote omitted).

         “Although counsel may be ineffective for failing to file a direct appeal

on his client’s behalf, a PCRA petitioner must prove that he asked counsel to

file an appeal in order to be entitled to relief.”         Commonwealth v.

Maynard, 900 A.2d 395, 397-98 (Pa. Super. 2006) (citing Commonwealth

v. Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999)). “Mere allegations will

not suffice.” Harmon, 738 A.2d at 1024. “The petitioner has the burden of

proving that he requested a direct appeal and that his counsel heard but

ignored or rejected the request.” Maynard, 900 A.2d at 398.

         Instantly, Appellant has not been given an opportunity to demonstrate

that he requested counsel file an appeal on his behalf, nor has counsel been

able to address such claims. Moreover, the PCRA court’s conclusion that a

hearing was not warranted on this issue because Appellant somehow waived

his appellate rights in exchange for a favorable negotiated sentence is in

error.

         During Appellant’s on-the-record plea colloquy, the court explicitly

informed Appellant that, although he was entering into a negotiated plea

agreement, certain of his appellate rights remained intact.

         THE COURT: You’re entitled to appellate rights, as well. When
         the appropriate time comes your attorney will give you your post
         plea appellate rights. But for the purposes of this colloquy the
         big four appellate rights you need to be concerned about
         amongst others are, you can challenge the jurisdiction of this

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     court. You can challenge the legality of sentence. You can
     challenge the voluntariness of your plea. Or if you are not
     happy with the effective representation of your attorney,
     you can challenge her effectiveness, at all. That doesn’t
     mean you will win on appeal. You certainly have those
     appellate rights available to you.
           Do you understand that?

     [APPELLANT]: Yes.

N.T., 4/22/2010, at 24-25 (emphasis added).

     Later, following the trial court’s acceptance of the plea, Appellant

waived his right to a presentence investigation and proceeded directly to

sentencing. Id. at 33. After sentence was imposed, the following exchange

occurred.

     THE COURT: And he’s to get credit for time served.
          If you can give him his appellate rights?

     [DEFENSE COUNSEL]: Thank you, Your Honor.
     Mr. Ruffin, you’ve just entered into a negotiated guilty plea to
     the charge of possession with intent to deliver[] before the
     Honorable Judge Hill. That plea carries a sentence of one to
     three years to run concurrently with the six to twelve years
     [previously imposed].

     [APPELLANT]: Yes.

     [DEFENSE COUNSEL]: You have thirty days from today to
     ask me in writing to file an appeal to the Superior Court
     on the limited grounds His Honor has gone over with you
     earlier. And ten days from today to ask me to write to
     withdraw this plea if that’s what you wish to do.
           Do you understand that?

     [APPELLANT]: Yes.

Id. at 35-36 (emphasis added).




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      Despite the PCRA court’s contentions, nowhere in the record does

Appellant waive his appellate rights.     To the contrary, both the court and

counsel explained those rights to Appellant, including the right to challenge

counsel’s stewardship of the case. Accordingly, based upon the foregoing,

we hold that the PCRA court erred in concluding that there were no genuine

issues of material fact and denying Appellant relief without an evidentiary

hearing. See Springer, supra. Thus, we vacate the order of the PCRA court

and remand for an evidentiary hearing on Appellant’s allegation that trial

counsel was ineffective for failing to file a direct appeal on his behalf.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2014




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