Com. v. Jackson, P. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
PATRICK JACKSON
Appellee No. 2470 EDA 2012
Appeal from the Order July 19, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-001427-2009
BEFORE: BENDER, P.J.E., PANELLA, J. and LAZARUS, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 12, 2014
The Commonwealth appeals from the order entered on July 19, 2012,
in the Court of Common Pleas of Philadelphia County, which granted
-Conviction Relief Act
(PCRA)1 and reinstated his post-sentence and appellate rights. After careful
review, we affirm.
On October 23, 2009, at approximately 9:35 P.M., Officer Linell
Jefferson and his partner, Officer Grimes, of the City of Philadelphia Police
Department executed a tr
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1
42 PA.CONS.STAT.ANN. §§ 9541-9546.
J-A06019-14
appeared to be a holster. As a safety precaution, the officers ordered
Jackson out of the vehicle and, in the course of conducting a pat-down,
recovered from his waist a .25 caliber handgun containing four live rounds of
ammunition. Jackson was unable to produce a license for the firearm.
Jackson was subsequently arrested. The officers later confirmed that Jackson
robbery, a first-degree felony, among other offenses, made him ineligible to
carry a firearm.
Defense counsel Nina Carter, Esquire, of the Philadelphia Defender
Association, filed an omnibus pre-trial motion to suppress on behalf of
Immediately thereafter, Johnson entered open guilty pleas to two violations
of the Uniform Firearms Act, 18 PA.CONS.STAT.ANN. § 6105, Persons not to
possess, use, manufacture, control, sell or transfer firearms, and 18
PA.CONS.STAT.ANN. § 6106, Firearms not to be carried without a license.
Jackson, represented by Attorney Carter, appeared for sentencing on
background, which included an extensive criminal record involving guns and
drugs, and sentenced him to a term of
possessing a firearm in violation of section 6105 and to a concurrent term of
3½ to 7 years for carrying a firearm without a license in violation of section
6106. See N.T., Sentencing, 5/6/10, at 1-8. Attorney Carter advised
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Jackson, on the record, of his appellate rights. Specifically, Attorney Carter
stated:
MS. CARTER
Judge to reconsider his sentence. And you have thirty days from
today to file for an appeal to Superior Court for a new trial.
If you wish to do either, it must be done in writing. And if you
fail to act within those timelines, you would be considered to
have waived or lost those rights.
Do you understand your sentence as well as your appellate
rights?
THE DEFENDANT: Yes
Id., at 8.
Even though Jackson acknowledged his appellate rights, he failed to
file either a post-sentence motion or a direct appeal within the prescribed
time period. On October 5, 2010, Jackson filed a pro se PCRA petition. John
Cotter, Esquire, was appointed to serve as PCRA counsel and filed an
amended PCRA petition on December 20, 2011. The amended PCRA petition
alleged that
trial defense counsel was ineffective because he [sic] failed to
requested to do so by [Jacksonn]. As a result of this
[Jackson] lost is [sic] state constitutional right to appeal the
of his appeal rights from the judgment of sentence imposed in
this matter.
Amended Petition Under Post-Conviction Relief Act, 12/20/11, at ¶4(a). As
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- -sentence
motions. Id., at 2.
At the PCRA hearing on July 19, 2012, Jackson testified via video
-8. Jackson
further acknowledged that the earliest correspondence he forwarded to the
sentencing and advisement of his appellate rights. See id., at 11. It did
appear however, that Jackson forwarded correspondence to the trial court on
August 31, 2010 which the trial court did not read, but was just time-
See id., at 12.
Carter. According to Attorney Carter, Jackson did not request that she file
post-sentence motions or a direct appeal on his behalf at any time following
sentencing. See id., at 25-
correspondence or telephone messages from Jackson between May 6, 2010,
the date of sentencing and 30 days thereafter. See id., at 26. More
importantly, Attorney Carter testified that it is neither her personal practice
-
sentence motions or appeal will be filed automatically on their behalf. See
id., at 29-30.
At conclusion of the hearing the PCRA court made the following
findings on the record:
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Okay. After I heard all the evidence and had a sidebar
conversation with counsel, I find without a doubt that Ms. Carter
was certainly not ineffective. She was assigned to my courtroom
routinely for gun court cases. She was always very prepared,
appellate rights on the record. She did that without fail. She also
actively represented defendants in front of me from guilty pleas
to waiver trials to, of course, doing a plethora of motions before
what she does. I find she certainly was not ineffective.
What I will say is that the defendant sending me some letter in
August which I, of course, do not read any letters that come
from any defendants at all for obvious reasons, but that letter at
that point was him wanting to do something different. I agree
with the Commonwealth, of course, at that time he did waive
any rights that he would have had, and that there was a series
n and it was him just trying to get some
things reinstated.
that because he did not know what he was doing in terms of
se
when he should have filed the requisite paperwork at that time
wanted to do and I will surmise it was because Ms. Carter
adequately represented him but also advised him of what his
based on any ineffective assistance claims which she certainly
Id., at 32-34.
right to file post-sentence motions so [counsel] has some issues to raise on
Id
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appeal, [he] would have to file post- Id., at 35. The trial
court agreed with J both -
sentence rights as well as his right to appeal be reinstated. Id., at 36.
Counsel for Jackson subsequently filed post-sentence motions on July 23,
2012, which were promptly denied. This appeal followed.
On appeal, the Commonwealth raises the following issue for our
review:
Did the lower court err where it granted defendant the right to
file post-sentence motions nunc pro tunc despite the absence of
any allegation or proof of actual prejudice?
Commonwe
In reviewing the propriety of an order granting or denying PCRA relief,
an appellate court is limited to ascertaining whether the record supports the
determination of the PCRA court and whether the ruling is free of legal error.
See Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay
great deference to the findings of the PCRA court, but its legal
determinations are subject to our plenary review. See id.
Here, the Commonwealth argues that the trial court erred in
reinstati -sentence rights. We disagree. In Commonwealth
v. Liston, 977 A.2d 1089 (Pa. 2009), our Supreme Court expressly
disapproved of automatically conferring upon a petitioner the right to file a
post-sentence motion nunc pro tunc once the PCRA court orders
reinstatement of direct appeal rights nunc pro tunc. See id., at 1094.
Rather, in order to grant such relief, a PCRA petitioner must plead and prove
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that he requested such relief with the PCRA court. See Commonwealth v.
Fransen, 986 A.2d 154, 155 (Pa. Super. 2009). Further, the PCRA court
must conduct an evidentiary hearing on the issue to determine whether the
deprivation of the right to file and litigate a post-sentence motion was the
result of the ineffectiveness of counsel. See id.
Here, the PCRA court did not violate Liston by automatically
-sentence motion rights simply because it
reinstated his direct appeal rights nunc pro tunc. Rather, Jackson properly
pled a claim for such relief. Liberally construed, Jackson pro se and
amended PCRA petitions request the reinstatement of his post-sentence
motion rights. In his pro se PCRA petition Jackson indicated the relief he
Pro Se PCRA
Petition, 9/27/10, at 5. Moreover, in his amended PCRA petition Jackson
requested that the PCRA court reinstate his right to file post-sentence
motions. Amended PCRA petition, 12/20/11, at ¶4a.
-sentence motion rights
because he pled guilty the issues he sought to raise on appeal would be
waived unless he were afforded the opportunity to assert those claims in a
post-sentence motion. See N.T., PCRA Hearing, 7/19/12, at 21, 35-36.
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2
and provided an acceptable basis for
the PCRA cou -sentence motion rights.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2014
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2
See Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa. Super. 2004
of his sentence is waived if the [a]ppellant has not filed a post-sentence
(citaitons omitted).
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