Com. v. Russi, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MIGUEL RUSSI,
Appellant No. 2250 EDA 2014
Appeal from the PCRA Order July 15, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003479-2012, CP-15-CR-0003768-
2012
BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.
JUDGMENT ORDER BY SHOGAN, J.: FILED JULY 28, 2015
Appellant, Miguel Russi, appeals pro se from the July 15, 2014 order
denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541–9546. After careful review, and with the urging of the
trial court and the Commonwealth, we vacate the order dismissing the
petition and remand for further proceedings.
On October 29, 2013, Appellant entered a hybrid-type guilty plea to
two counts each of robbery and conspiracy. He was sentenced that day to
an aggregate term of imprisonment of twenty-five to fifty years. Appellant
filed a motion for reconsideration of sentence on November 7, 2013, and the
Commonwealth filed a cross-motion the next day. The trial court held a
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hearing on both motions on February 19, 2014, and denied them on
February 28, 2014.
During the ensuing thirty-day appeal period, Appellant wrote to his
plea counsel inquiring, inter alia, about his direct appeal rights. By letter
dated March 19, 2014, well within the appeal period, plea counsel
responded, “Regarding your direct appeal rights, those time limits have
passed. There was, however, nothing of merit to appeal in my opinion, and
any appeal would have been frivolous and denied anyway.” Letter from
Peter Jurs, Chester County Assistant Public Defender, 3/19/14, at 1
(emphasis added) (Docket Entry 40). Appellant thereafter filed the instant
PCRA petition in which he alleged, inter alia, “Peter Jurs was ineffective for
failing to protect my appeal rights . . . .” PCRA Petition, 4/17/14, at 3.
The PCRA court appointed counsel, who filed a 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). On
June 10, 2014, the PCRA court gave notice of its intention to dismiss
Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907. Appellant did not
respond, and on July 15, 2014, the PCRA court dismissed Appellant’s petition
and granted counsel leave to withdraw. Appellant filed a notice of appeal on
August 5, 2014. Both the PCRA court and Appellant complied with Pa.R.A.P.
1925.
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In preparing its Pa.R.A.P. 1925(a) opinion, the PCRA court admitted as
follows:
[W]e have had the occasion to review and reconsider the record
in great depth. We recognize that we overlooked the merits of
[Appellant’s] issue in his pro se Petition regarding counsel’s
failure to preserve [Appellant’s] direct appeal rights and erred in
our decision to summarily deny [Appellant’s] first PCRA Petition.
PCRA Court Opinion, 10/14/14, at 3.
It is clear that:
[o]ur Supreme Court has held that counsel’s unexplained
failure to file a requested direct appeal constitutes ineffective
assistance per se, such that the petitioner is entitled to
reinstatement of direct appeal rights nunc pro tunc without
establishing prejudice. Commonwealth v. Lantzy, 558 Pa.
214, 226–27, 736 A.2d 564, 572 (1999). However, before a
court will find ineffectiveness of counsel for failing to file a direct
appeal, the petitioner must prove that he requested a direct
appeal and the counsel disregarded the request.
Commonwealth v. Bath, 907 A.2d 619 (Pa. Super. 2006).
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011). Both
the Commonwealth and the PCRA court urge us to vacate the order
dismissing the petition and remand the matter for a hearing. We are so
inclined.
The order of July 15, 2014, is vacated. This case is remanded for a
hearing to determine whether Appellant requested counsel to file an appeal
from the judgment of sentence, and if so, the PCRA court shall reinstate
Appellant’s right to file a counseled appeal nunc pro tunc.
Order vacated; case remanded. Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
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