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[U] Commonwealth v. Rosenberger

Superior Court of Pennsylvania

February 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DANA ROSENBERGER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order October 5, 2012 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0001432-2009

BEFORE: BOWES, ALLEN, and MUSMANNO, JJ.

MEMORANDUM

BOWES, J.

Dana Rosenberger appeals from the October 5, 2012 order denying his first, timely PCRA petition. We conclude that Appellant is entitled to an evidentiary hearing on his preserved claim that he is entitled to reinstatement of his direct appeal rights since he asked counsel to file an appeal and counsel failed to do so. We therefore vacate the order and remand.

On June 18, 2009, a criminal com plaint was filed in this action. Appellant was charged with corruption of a minor and indecent assault of a complainant who was less than thirteen years old. The charges were based upon the following events. In December 2008, C.L. spent the night at the home of her friend, Samantha, who was Appellant's daughter. While she was sleeping in Samantha's room, Appellant entered it and rubbed C.L.'s stomach and back and placed his hands down her pajama bottoms and fondled her vagina. On February 5, 2010, Appellant pled guilty to the charges in exchange for a negotiated sentence of two and one-half to ten years imprisonment. Although none was performed, the district attorney indicated that she would seek an evaluation of whether Appellant was a sexually violent predator, " because he's currently listed on Megan's Law and was on Megan's Law when this offense was committed." N.T. Plea and Sentencing, 2/ 5/ 10, at 6. On February 19, 2010, Appellant's counsel filed a post-sentence motion to withdraw the guilty plea, which was denied as untimely on February 22, 2010.

On November 23, 2010, Appellant filed a counseled petition seeking funds to procure the services of a voice stress specialist to explore possible grounds to challenge the validity of his guilty plea. That motion was denied on December 3, 2010 and notice was sent to counsel. On February 24, 2011, Appellant filed a timely pro se petition for PCRA relief. He claimed that he received ineffective assistance of counsel when counsel advised him to plead guilty, despite the fact that Appellant was innocent, that the motion for appointment of a voice stress expert witness was never resolved, and that he wanted funds to pay for the services of such an expert. On March 3, 2011, the PCRA court appointed Jeffrey A. Watson, Esquire, for purposes of litigating the PCRA petition.

Before counsel filed anything of record, Appellant filed a petition on August 29, 2012. In that document, Appellant asked that his appellate rights be reinstated nunc pro tunc. That petition was provided to PCRA counsel. On September 18, 2012, Mr. Watson filed a petition to withdraw from representation and no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). While Mr. Watson averred that he had reviewed the entire record, including all petitions filed by Appellant, he addressed only the question of whether Appellant had a meritorious position regarding the validity of the guilty plea. Counsel did not discuss Appellant's claim that he was entitled to reinstatement of his appellate rights.

On September 19, 2012, the PCRA court disseminated notice of its intent to dismiss the PCRA petition without a hearing. Appellant filed an objection to that notice. He noted that PCRA counsel had moved to withdraw without first "petitioning the Court to reinstate the defendant's direct appeal rights following the defendant's request of counsel to do so." Objections of Notice of Intent to Dismiss PCRA Petition, 10/ 1/ 12, at ¶ 3. Appellant continued: "The defendant submits that he did not waive his Constitutional Right to a direct appeal, and the defendant requested defense counsel to move to have his direct appeal rights reinstated[ .] " Id. at 4. Appellant relied upon Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999).

On October 5, 2012, the PCRA court denied the PCRA petition and permitted Mr. Watson to withdraw. On October 10, 2012, the PCRA court denied Appellant's motion to reinstate his direct appeal rights. The court concluded that "Defendant's allegations of error will be addressed through his PCRA Petition and as such the denial of his motion to reinstate his direct appeal rights is not prejudicial." Order of Court, 10/ 10/ 12, at 1. This timely appeal followed. Appellant presents these questions for our review:

I.) Jurisdictional defects

The Appellant was denied proper proceedings by trial conviction and sentencing by a court without jurisdiction in violation of Pennsylvania Constitution Article I Sections 9, 10, 25, 26 and U.S. Constitution Amendments 1, 5, 6, 9, 14 as follows:
a) Lack of grand jury indictment; b) defective criminal information; c) denial loyal effective and zealous assistance of counsel; d) structural jury trial errors; e) denial of speedy trial and PaRCrim P. 600(e) rights;
II The Appellant was denied full and fair P.C.R.A. proceedings in violation of due process and his rights secured to him by the U.S. Constitution and its Amendments 1, 4, 5, 6, 9, 14.
III Appellant was denied his right of appeal and to loyal, zealous and effective assistance of Appellate counsel.
IV Appellant's PCRA issues were issues to be included in the reinstated appeal to which Appellant was entitled to and not subject to "censoring" of the PCRA Judge. See PA Const Article V, Sec 9.

Appellant's brief at 4.

As we conclude that Appellant is entitled to a hearing on his claims that he was denied his right of appeal, we will grant relief on that question. Thus, we need not address the remaining ones.

Our legal precedent provides that a PCRA petitioner is entitled to an evidentiary hearing where he alleges that he asked counsel to file an appeal and counsel failed to heed that request. As enumerated infra, if a defendant asked for an appeal and counsel ignored that demand, counsel is considered ineffective per se, and a defendant receives restoration of his direct appeal rights. The ability of a defendant to present viable issues for purposes of appeal or to pursue collateral relief is not considered. He must be accorded the direct appeal, although appellate counsel will always be permitted to petition to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a withdrawal from representation in that setting. See also Commonwealth v. Donaghy, 33 A.3d 12 (Pa.Super. 2011).

Initially, we note that in Lantzy, upon which Appellant relied, our Supreme Court ruled that where counsel fails to initiate a direct appeal after a request by defendant, the defendant is automatically entitled to have his appellate rights restored. This ruling was premised upon the defendant's right, under the Pennsylvania Constitution, to direct review. Pa.Const. Art.V. § 9 (" there shall . . . be a right of appeal from a court of record . . . to an appellate court, the selection of such court to be as provided by law . . . "). See also Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007) (counsel is considered ineffective per se when counsel fails to file a direct appeal or request for allowance of appeal upon demand or when counsel neglects to file a Pa.R.A.P. 1925(b) statement). Concomitantly, where a defendant alleges in a post-conviction petition that he asked counsel to file a direct appeal and counsel ignored that wish, that defendant is automatically entitled to an evidentiary hearing to determine whether the defendant actually did raise that issue with counsel. In Commonwealth v. Bronaugh, 670 A.2d 147 (Pa.Super. 1995), [1] the defendant pled guilty to aggravated assault and terroristic threats. He then filed a PCRA petition indicating that his guilty plea was unlawfully induced and that he was deprived of his right to direct appeal since he asked counsel on appeal to challenge his sentence in an appeal and counsel neglected to perform that action. The PCRA court denied relief without a hearing and concluded that reinstatement of a direct appeal was unnecessary since the defendant had no viable sentencing claim. We vacated the order and remanded for an evidentiary hearing as to the defendant's allegation that he asked his lawyer to file a direct appeal. We held that a court may not deny PCRA relief "without first granting a hearing to determine whether an appellant's constitutional right to a direct appeal was violated by counsel's failure to file such appeal when requested[ .] " Id. at 148. We outlined the pertinent principles:

In Pennsylvania, an accused has an absolute right to a direct appeal. Pa. Const., art. V, § 9. Commonwealth v. Wilkerson, 490 Pa. 296, 298, 416 A.2d 477, 479 (1980). Counsel must protect this absolute right "unless the accused him self effectively waives the right." Id. (citing Commonwealth v. Perry, 464 Pa. 272, 274, 346 A.2d 554, 555 (1975)). Further, counsel is required to protect this appellate right even in circum stances where the appeal is "totally without merit." Id. It follows that counsel, however, is not required to advance frivolous arguments in an appeal since counsel may protect his client's appellate rights via the procedure outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by advising the court and requesting permission to withdraw. . . .
In Wilkerson, our Supreme Court held that the Post Conviction Hearing Act (PCHA) court erred in dismissing the petitioner's PCHA petition without a hearing and in concluding that counsel could not be ineffective for failing to file an appeal if no issue of arguable merit was found in the petition. Wilkerson, supra. The petitioner alleged that he had taken steps to perfect an appeal by himself and also requested counsel to file a direct appeal. Such an appeal was never filed, nor was an Anders brief filed by counsel. As such, the court held that the facts alleged, if proven, would warrant relief based upon the ineffective assistance of prior counsel since an accused has an absolute right to direct appeal. Id. Consequently, the PCHA court should have held an evidentiary hearing to afford the petitioner an opportunity to prove whether or not he had directed counsel to file an appeal. Id.
In short, a criminal defendant has an absolute right to directly appeal his sentence, regardless of the merits of his appeal. When he is deprived of such right by counsel's failure to file an appeal after being directed to do so, ineffective assistance results in a constitutional violation, assuming there is no effective waiver of appeal. In the PCRA cases, the rule is that where the PCRA petitioner has alleged ineffectiveness of his trial counsel for failure to file a direct appeal, the PCRA court is precluded from reaching the merits of other issues raised in the PCRA petition once the court determines that the petitioner has been deprived of his right to direct appeal. At that point, an appeal nunc pro tunc is the proper remedy. Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982). See also Commonwealth v. Hoyman, 385 Pa.Super. 439, 442, 561 A.2d 756, 758 (1989) (holding that Miranda applies equally to proceedings under the PCRA). If it has not been determined whether or not prior counsel's actions deprived a petitioner of his constitutional right to a direct appeal, a hearing shall be held to determine whether or not such right was deprived. Commonwealth v. Hickman, 434 Pa.Super. 633, 644 A.2d 787 (1994).

I d. at 149-50 (footnote omitted). See also Commonwealth v. Carter, 21 A.3d 680 (Pa.Super. 2011)(reversing summary dismissal of PCRA relief and remanding for a hearing as to whether counsel had a duty to consult with the defendant about taking a direct appeal under Roe v. Flores–Ortega, 528 U.S. 470 (2000), and Commonwealth v. Touw, 781 A.2d 1250 (Pa.Super. 2001)).

Accordingly, regardless of whether Appellant could pursue his claims under the PCRA, he is entitled to a hearing to determine if he asked plea counsel to appeal. If such a demand was made, Appellant is automatically entitled to restoration of his appellate rights.

Order vacated. Case remanded for an evidentiary hearing. Jurisdiction relinquished.

Judgment Entered.


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