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COMMONWEALTH PENNSYLVANIA v. JOSEPH A. CIOTTO (03/13/89)

filed: March 13, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH A. CIOTTO, APPELLANT



Appeal from the Judgment of Sentence entered March 7, 1988 in the Court of Common Pleas of Lawrence County, Criminal Division, Nos. 631 and 631A of 1987.

COUNSEL

David H. Acker, New Castle, for appellant.

Angelo Papa, Assistant District Attorney, New Castle, for Com., appellee.

Olszewski, Del Sole and Kelly, JJ.

Author: Kelly

[ 382 Pa. Super. Page 459]

Appellant, Joseph Ciotto, appeals from judgment of sentence imposed following his jury trial convictions of terroristic threats and harassment by communication relating to a series of abusive telephone calls to his estranged wife. We vacate and remand for the filing of post-verdict motions nunc pro tunc.

The relevant facts are not in dispute. Appellant was found guilty of the above offenses on November 20, 1987. On November 30, 1987, appellant's court appointed counsel filed post-verdict motions. However, because counsel failed to file any brief in support of the post-verdict motions, they were summarily denied on February 2, 1988. On February 10, 1988, prior counsel withdrew and new counsel was appointed to represent appellant. New counsel then moved

[ 382 Pa. Super. Page 460]

    to have the February 2, 1988 order summarily denying the post-verdict motions vacated based upon prior counsel's ineffectiveness with respect to the procedural default. New counsel sought allowance of an opportunity to brief the previously filed motions and argue them on their merits. The prosecuting attorney specifically noted in writing that he did not oppose the motion. Nonetheless, the motion was denied. Appellant was then sentenced to a term of 30 days to one year and 364 days and a concurrent term of 30 days to one year. No motion to modify sentence was filed. Timely notice of appeal, however, was filed.

On appeal the sole issue raised is whether appellant is entitled to pursue post-verdict motions nunc pro tunc based on original counsel's procedural default in failing to file a brief in support of post-verdict motions. Appellant contends that the failure of his court appointed counsel to follow procedural rules cannot constitutionally be permitted to deny him his right to a direct appeal. The Commonwealth responds that although the motions were denied without benefit of briefs or arguments, the opinion of the trial court indicates that they were disposed of on their merits.

The trial court opinion provides in pertinent part:

From November 30, 1987 until March 4, 1988 nothing was filed with this court and no communication was made to the court regarding the issues raised by the defendant. Had the defense in some way indicated their desire to make a reply, albeit tardy, the result may have been different. We recollect even contacting the defense to gain information as to a forthcoming response but to no avail. In the interest of the finality of judgments and noting nothing on the face of the original ...


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