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[U] Commonwealth v. Marcolongo

Superior Court of Pennsylvania

February 24, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CHRISTOPHER MARCOLONGO, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered January 23, 2009 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006215-2007

BEFORE: BENDER, J., BOWES, J., and LAZARUS, J.

MEMORANDUM

BENDER, J.

Appellant, Christopher Marcolongo, appeals nunc pro tunc from the judgment of sentence imposed after the trial court found him guilty of robbery, theft, and possessing an instrument of crime (PIC). On appeal, Appellant seeks to challenge the sufficiency of the evidence to sustain his convictions, as well as discretionary aspects of his sentence. For the following reasons, we dismiss this appeal.

Appellant was convicted of the above-stated crimes based on his robbing a pizza delivery man at knifepoint on May 13, 2007. He was sentenced on January 23, 2009, to an aggregate term of four to eight years' incarceration, followed by two years' probation. Appellant did not file post-sentence motions or a direct appeal. However, he filed a timely petition for post conviction relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the restoration of his appeal rights nunc pro tunc. That petition was granted, counsel was appointed, and the instant appeal followed.

Appellant's counsel, Norman Scott, Esquire, subsequently filed with this Court a petition to withdraw his representation of Appellant pursuant to Anders v. California, 386 U.S. 738 (1967), as elucidated by our Supreme Court in Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and amended in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). On May 3, 2013, we issued a memorandum decision concluding that Attorney Scott's Anders brief utterly failed to comply with the requirements of Anders/Santiago. Therefore, we directed that Attorney Scott file either an advocate's brief on Appellant's behalf, or an amended petition to withdraw and brief that complied with Anders/Santiago.

Over seven months have now passed with no action by Attorney Scott. Normally, we would issue another order providing Attorney Scott with a specific number of days to comply with our order before dismissing Appellant's appeal. However, Appellant's right to a direct appeal has already been delayed so substantially that we believe the more appropriate course of action is to dismiss his appeal now. This way, Appellant may forthwith file a PCRA petition asserting Attorney Scott's ineffectiveness and seeking the restoration of his appeal rights nunc pro tunc. See Commonwealth v. Mikell, 968 A.2d 779, 781 (Pa.Super. 2009) ("It is well-settled that 'an accused who is deprived entirely of his right of direct appeal by counsel's failure to perfect an appeal is per se without the effective assistance of counsel, and is entitled to a reinstatement of his direct appellate rights.") (emphasis omitted). Furthermore, under this approach, Appellant will be entitled to new counsel if he ultimately files a nunc pro tunc direct appeal, and will be relieved of the incompetent representation afforded by Attorney Scott.

Appeal dismissed.

Judge Bowes files a dissenting statement.

Judgment Entered.

DISSENTING STATEMENT

BOWES, J.

I respectfully dissent from the distinguished majority's decision to dismiss this appeal. Rather, I would remand for the appointment of new counsel and retain jurisdiction. Such a procedure is looked upon highly favorably by our Supreme Court and avoids the unwarranted complication ...


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