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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NON-PRECEDENTIAL DECISION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 ...

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