Appeal from the Order denying Post Conviction Relief entered August 27, 1996, Court of Common Pleas, Beaver County, Criminal Division at Nos. 454, 455, 771 of 1995, OTN: E4261386/E5392785. Before MANNIX, J.
Before: Cirillo, Johnson and Cercone, JJ. Opinion BY Johnson, J.
The opinion of the court was delivered by: Johnson
In this submitted case, we are asked to determine whether the denial of the constitutional right to a direct appeal from judgment of sentence may be cured by filing a petition for post-conviction relief based solely upon the alleged ineffectiveness of trial counsel in failing to follow the client's instructions. We hold that the Post Conviction Relief Act requires that a petitioner both plead and prove facts establishing that the violation of the constitutional right or the ineffectiveness of counsel so undermined the truth-determining process as to render a finding of guilt unreliable. Because the petitioner in this case has done neither, we conclude that post-conviction relief was properly denied and affirm.
Following a negotiated plea agreement, Thomas Petroski pleaded guilty to three drug charges. The Honorable Thomas C. Mannix sentenced Petroski to undergo two to four years' imprisonment on each count, the sentences to be served concurrently. No direct appeal was filed. On March 26, 1996, Petroski filed a pro se post-conviction relief petition. New counsel was appointed, an amended petition was filed and evidentiary hearings were held. Judge Mannix denied relief. Petroski now appeals.
Our standard of review as set forth in Commonwealth v. Yager, 454 Pa. Super. 428, 434, 685 A.2d 1000, 1003 (1996) (en banc) is as follows:
Our review of a post-conviction court's grant or denial of relief is limited to determining whether the court's findings are supported by the record and the court's order is otherwise free of legal error. We will not disturb findings that are supported by the record.
We begin by noting that although Petroski had set forth numerous alleged grounds for PCRA relief, Judge Mannix limited the evidentiary hearing to Petroski's claim of "'ineffective assistance of counsel following imposition of Defendant's Sentence' in each of the ... cases on November 6, 1995." Order, Mannix, J., May 29, 1996. Petroski has not challenged that order in this appeal. In his brief to this Court, Petroski sets forth one issue for our review:
1. WHETHER THE DEFENDANT IS DENIED HIS RIGHT TO A DIRECT APPEAL WHEN WITHIN TEN (10) DAYS OF THE DATE OF SENTENCE, HE TELEPHONED HIS TRIAL COUNSEL AND ADVISED HIM THROUGH HIS SECRETARY THAT THE DEFENDANT WISHED TO TAKE AN APPEAL, THE SAID REQUEST FOR APPEAL WAS PLACED IN THE FORM OF A WRITTEN TELEPHONE RECORD BY THE SECRETARY, REVIEWED BY THE ATTORNEY, AND, THE ATTORNEY THEREAFTER TOOK NO ACTION TO FILE AN APPEAL DESPITE THE REQUEST OF THE DEFENDANT?
Brief for Appellant at 3.
Prior to the passage of Act No. 32 of 1995, November 17, 1995, P.L. 1118 (Spec.Sess.No.1), § 1, which became effective 60 days after its enactment, an allegation that trial counsel was ineffective for failing to file a direct appeal as requested, thereby violating appellant's constitutional right to a direct appeal, was deemed cognizable under 42 Pa.C.S. § 9543(a)(2)(v). Commonwealth v. Hickman, 434 Pa. Super. 633, 635, 644 A.2d 787, 788 (1994); see also Commonwealth v. White, 449 Pa. Super. 386, 391, 674 A.2d 253, 256 (1996). However, subsection (a)(2)(v) was repealed by our legislature as part of the 1995 amendments to the Post Conviction Relief Act. Petroski's petition, which was filed on March 26, 1996 (and amended on April 30, 1996), is governed by the provisions in effect as of the date he filed his petition. In other words, his petition is governed by the PCRA as amended.
While Petrosky relies heavily on both Hickman, (supra) , and White, (supra) , the subsection of the Post Conviction Relief Act which undergirds the decisions in those cases is no longer the law of this Commonwealth. Former subsection § 9543(a)(2)(v) created eligibility for relief where the conviction or sentence resulted from "a violation of the provisions of the Constitution ... of the United States which would require the granting of Federal habeas corpus relief to a State ...