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Commonwealth v. Allen

Superior Court of Pennsylvania

October 21, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MARKEITH DASMOND ALLEN, Appellant

Appeal from the Judgment of Sentence entered March 9, 2012, in the Court of Common Pleas of Montgomery County, Criminal Division, at No(s): CP-46-CR-0000811-2011, CP-46-CR-0001349-2011 & CP-46-CR-0001350-2011.

Joseph D. Seletyn, Esq.

BEFORE: ALLEN, MUNDY, and FITZGERALD [*] , JJ.

OPINION

ALLEN, J.

In this case, we must decide whether to remand for a determination of whether Markeith Dasmond Allen ("Appellant") wishes to expressly waive his right to file a PCRA petition, or whether we should affirm Appellant's judgment of sentence without prejudice to Appellant's rights to file a PCRA petition. For the reasons stated below, we choose the latter, and affirm Appellant's judgment of sentence.

The trial court summarized the pertinent procedural history as follows:

On March 9, 2012, pursuant to a negotiated guilty plea agreement with the Commonwealth, [Appellant pled guilty] to ten (10) counts of Robbery, one (1) count of Persons Not to Possess Firearms, and one (1) count of Possession of a Controlled Substance (Heroin) with Intent to Deliver. The Commonwealth nol prossed the over one hundred counts that remained. In exchange for his pleas, Appellant was sentenced to an aggregate term of ten to thirty (10-30) years. [The charges primarily stemmed from a string of robberies Appellant committed in January 2011.] At said guilty plea hearing, [Appellant was represented by counsel]. The Court informed Appellant of his post-conviction and appeal rights upon imposing the aforementioned sentence.
On March 20, 2012, Appellant filed a pro se Notice of Appeal. On March 27, 2012, this Court directed Appellant to file a Concise Statement of Matters of Errors Complained of on Appeal (the "Concise Statement") within twenty-one (21) days. Appellant filed his Concise Statement on April 10, 2012.
On May 29, 2012, the Superior Court dismissed the instant appeal. Upon motion, the Superior Court reinstated the appeal on September 6, 2012. Upon application of Appellant, this Court appointed new counsel to represent him on his direct appeal. On December 11, 2012, the Court appointed [present counsel] to represent Appellant and provided [him] thirty (30) days to review the record and file an Amended Concise Statement. [Present counsel] subsequently requested additional time to file same, which this Court granted. Appellant's Amended Concise Statement ultimately was filed on January 30, 2013.

Trial Court Opinion, 3/15/13, at 1-2 (footnotes omitted).

The trial court responded to Appellant's Amended Concise Statement as follows:

All of Appellant's issues in his Amended Concise Statement either raise claims of ineffective assistance of counsel or are premised on allegations of ineffective assistance of counsel. These claims are premature and should be raised not on direct appeal but during collateral review at the trial court level. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002).

Trial Court Opinion, 3/15/13, at 2. The trial court therefore asks this Court to "quash the instant appeal and/or remit the case back to [the trial] court to allow Appellant to file a proper Petition for Post Conviction Relief, in which he can raise allegations of trial ...


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