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COMMONWEALTH PENNSYLVANIA v. DARRYL ZIGLER (07/19/85)

filed: July 19, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
DARRYL ZIGLER, A/K/A DARRELL V. ZIGLER, APPELLANT



No. 1309 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas, Criminal Division, Allegheny County, Nos. 8105938A, 8105929, 8106110.

COUNSEL

John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Popovich, Hoffman and Lipez, JJ. Popovich, J., files a dissenting opinion.

Author: Lipez

[ 344 Pa. Super. Page 239]

In a jury trial, defendant was convicted of three counts of involuntary deviate sexual intercourse, two counts of statutory

[ 344 Pa. Super. Page 240]

    rape, one count of recklessly endangering another person, two counts of terroristic threats, two counts of indecent assault, three counts of corruption of minors, and one count of simple assault. After denial of post-verdict motions, judgment of sentence was imposed, but no direct appeal was taken. Defendant later filed a PCHA petition, contending that he was denied his right to a direct appeal through the ineffective assistance of counsel. We agree and therefore reverse the order of the court below, and grant the defendant the right to file a direct appeal within thirty days of the date this opinion is filed.

Speaking for a unanimous panel of this court, Judge Brosky stated:

We hold, in line with our fellow jurisdictions across the land, that, following conviction, trial counsel must, in order to be effective, go one step further in order to protect his client's right of appeal: either by filing the appeal, by recommending to the client other counsel to handle the appeal, or by presenting to the court a motion to withdraw from the case. In the case of withdrawal, the attorney should look for guidance to the Code of Professional Responsibility, and should, of course, immediately notify the client of such action in time for the client to secure other counsel.

As ABA Standard 4-8.2 clearly states, however, the decision whether to appeal must be the defendant's own choice. Therefore, the defendant must take affirmative steps to ensure that his desire to appeal is communicated to his attorney, and that he communicates as well his authorization that the attorney may file an appeal on his behalf.

Commonwealth v. Ross, 289 Pa. Super. 104, 110, 432 A.2d 1073, 1075-76 (1981) (emphasis in original; footnote omitted).

In Ross, the court went on to hold that the absence of evidence that the defendant had communicated her desire to take an appeal to her attorney precluded a finding that counsel ...


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