Com. v. Pizzicaroli, R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RICHARD C. PIZZICAROLI
Appellant No. 1372 MDA 2020
Appeal from the PCRA Order Entered October 19, 2020
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0005518-2016
BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED: August 10, 2021
Appellant Richard C. Pizzicaroli appeals from the October 19, 2020 order
of the Court of Common Pleas of Berks County (“PCRA court”), which denied
his petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-46. After careful review, we vacate and remand.
The facts and procedural history of this case are undisputed. As
recounted by the PCRA court:
On February 9, 2018, [Appellant] entered an open guilty
plea to aggravated assault by vehicle while driving under the
influence [(75 Pa.C.S.A. § 3735.1)] and related offenses. On the
same date, he was sentenced to five to ten years of incarceration
in a state correctional facility. [Appellant] was represented by
Allan L. Sodomsky, Esquire, at his plea and sentencing.
[Appellant] did not file a post-sentence motion or a direct appeal.
On or about January 28, 2019, [Appellant] filed a pro se
[filed the instant petition.] Accordingly, th[e] court appointed
David J. Long, Esquire, to represent [Appellant]. Counsel was
directed to file either an amended petition pursuant to
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Pennsylvania Rule of Criminal Procedure 905 detailing
[Appellant’s] eligibility for relief or a Finely petition detailing the
reasons why this court should allow counsel to withdraw.
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc); Commonwealth v. Tuner, 544 A.2d 927 (Pa. 1988).
Counsel reviewed the entire official file and communicated
with [Appellant]. Thereafter, on August 1, 2019, [Appellant’s]
PCRA counsel filed an amended petition alleging that [Appellant]
requested that plea counsel file an appeal, that an appeal was
never filed, and that Attorney Sodomsky did not move to withdraw
his appearance. On February 12, 2020, this court filed an order
withdrawing Attorney Long’s appearance and appointing Osmer S.
Deming, Esquire, to represent [Appellant].
PCRA Court Opinion, 10/19/20, at 1-2 (unnecessary capitalizations omitted).
Following a hearing, the PCRA court denied Appellant relief. Appellant timely
appealed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
On appeal, Appellant argues only that the PCRA court erred in
concluding that he failed “to prove that [Attorney Sodomsky] was ineffective
for failing to file a direct appeal.” Appellant’s Brief at 1. In other words,
Appellant’s sole argument on appeal is that his plea counsel was ineffective in
failing to file a requested direct appeal and that the PCRA court erred in
concluding otherwise and not reinstating nunc pro tunc his direct appeal
rights.
As we have explained:
We review an order dismissing a petition under the PCRA in the light
most favorable to the prevailing party at the PCRA level. This review is
limited to the findings of the PCRA court and the evidence of record. We
will not disturb a PCRA court’s ruling if it is supported by evidence of
record and is free of legal error. This Court may affirm a PCRA court’s
decision on any grounds if the record supports it. Further, we grant
great deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
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However, we afford no such deference to its legal conclusions. Where
the petitioner raises questions of law, our standard of review is de novo
and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
When a petitioner asserts an ineffectiveness claim, he is entitled to relief
if he pleads and proves that prior counsel rendered ineffective assistance of
counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). The law presumes counsel has
rendered effective assistance. Commonwealth v. Gonzalez, 858 A.2d
1219, 1222 (Pa. Super. 2004), appeal denied, 871 A.2d 189 (Pa. 2005). “To
prevail on an [ineffectiveness] claim, a PCRA petitioner must plead and prove
by a preponderance of the evidence that (1) the underlying legal claim has
arguable merit; (2) counsel had no reasonable basis for acting or failing to
act; and (3) the petitioner suffered resulting prejudice.” Commonwealth v.
Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc). The
petitioner bears the burden of proving all three prongs of the “Pierce1 test.
Commonwealth v. Meadows, 787 A.2d 312, 319–20 (Pa. 2001). “Counsel
is presumed to be effective and Appellant has the burden of proving
otherwise.” Commonwealth v. Holloway, 739 A.2d 1039, 1044 (Pa. 1999).
“A defendant’s failure to satisfy even one of the three requirements results in
the denial of relief.” Miller, 987 A.2d at 649; accord Reyes-Rodriguez, 111
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1 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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A.3d at 780 (“A petitioner must prove all three factors of the ‘Pierce test,’ or
the claim fails.”).
“Actual or constructive denial of the assistance of counsel, however, falls
within a narrow category of circumstances in which prejudice is legally
presumed.” Commonwealth v. Lane, 81 A.3d 974, 978 (Pa. Super. 2013),
appeal denied, 625 Pa. 658, 92 A.3d 811 (Pa. 2014). Our Supreme Court
has held:
[W]here there is an unjustified failure to file a requested direct
appeal, the conduct of counsel falls beneath the range of
competence demanded of attorneys in criminal cases, denies the
accused the assistance of counsel guaranteed by the Sixth
Amendment to the United States Constitution and Article I,
Section 9 of the Pennsylvania Constitution, as well as the right to
direct appeal under Article V, Section 9, and constitutes prejudice
for purposes of Section 9543(a)(2)(ii). Therefore, in such
circumstances, and where the remaining requirements of the
PCRA are satisfied, the petitioner is not required to establish his
innocence or demonstrate the merits of the issue or issues which
would have been raised on appeal.
Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (internal footnote
omitted). Differently put, if counsel neglects to file a requested direct appeal,
“counsel is per se ineffective as the defendant was left with the functional
equivalent of no counsel.” Commonwealth v. Markowitz, 32 A.3d 706, 715
(Pa. Super. 2011), appeal denied, 40 A.3d 1235 (Pa. 2012).
Nonetheless, even if a defendant does not expressly ask counsel to file
a direct appeal, counsel still has a duty “to adequately consult with the
defendant as to the advantages and disadvantages of an appeal where there
is reason to think that a defendant would want to appeal.” Commonwealth
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v. Bath, 907 A.2d 619, 623 (Pa. Super. 2006), appeal denied, 918 A.2d 741(Pa. 2007). Where the defendant did not request counsel to file a direct appeal
but counsel failed to consult with the defendant, counsel is not per se
ineffective and the court applies the traditional three-prong test “to decide
whether counsel rendered constitutionally ineffective assistance by failing to
advise [the] client about his appellate rights.” Markowitz, supra at 716.
Pursuant to [Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct.
1029, 145 L.Ed.2d 985 (2000) and its Pennsylvania expression,
Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001)],
counsel has a constitutional duty to consult with a defendant about
an appeal where counsel has reason to believe either “(1) that a
rational defendant would want to appeal (for example, because
there are nonfrivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to counsel that he
was interested in appealing.” [Id.] at 1254 (quoting Roe[, supra]
at 480, 120 S. Ct. [at 1036]).
Bath, supra at 623. “Where a petitioner can prove either factor, he
establishes that his claim has arguable merit.” Markowitz, supra at 716.
Prejudice in this context means a defendant must show a reasonable
probability that, but for counsel’s failure to consult, the defendant would have
sought additional review. Touw, supra at 1254.
Here, in rejecting Appellant’s claim that he requested a direct appeal,
the PCRA court found credible Attorney Sodomsky’s testimony to the contrary
– i.e., Appellant did not request a direct appeal within 30 days of sentencing.
See Trial Court Opinion, 10/19/20, at 4 (“Attorney Sodomsky testified that
[Appellant] did not ask him to file an appeal in this case. The court found
Attorney Sodomsky’s testimony credible.”). Accordingly, as we are bound by
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the PCRA court’s credibility determinations, see Ford, supra, we cannot
conclude that Attorney Sodomsky was per se ineffective for failing to file a
direct appeal.
Despite the foregoing determination, we cannot terminate our inquiry.
As set forth above in Bath, the PCRA court had to determine further whether
Attorney Sodomsky had reason to believe either that a rational defendant
would want to appeal (for example, because there are nonfrivolous grounds
for appeal), or that Appellant reasonably demonstrated to Attorney Sodomsky
that he was interested in appealing. While we would ordinarily remand for
that determination, we need not do so, since alternative grounds exist
requiring a remand. Our review of the record reveals that Appellant was not
properly advised of his appeal rights at sentencing due to a breakdown in court
operations.
At the PCRA hearing, Attorney Sodomsky specifically testified that
Appellant did not request a direct appeal until nine months after sentencing
when Attorney Sodomsky received a letter from Appellant dated November
14, 2019, indicating Appellant’s intention to file an appeal. N.T. Hearing,
9/8/20, at 22. The record in this case sheds light on why Appellant likely
waited nine months to request an appeal. At Appellant’s guilty plea and
sentencing, neither the trial court nor Attorney Sodomsky advised
Appellant of his post-sentence or direct appeal rights on the record. Indeed,
Rule 704 of the Pennsylvania Rule of Criminal Procedure outlines measures
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that a trial court must take at a sentencing hearing. Rule 704 provides in
pertinent part that:
[t]he judge shall determine on the record that the defendant
has been advised of . . . the right to file a post-sentence motion
and to appeal, of the time within which the defendant must
exercise those rights, and of the right to assistance of counsel in
the preparation of the motion and appeal[.]
Pa.R.Crim.P. 704(C)(3)(a) (emphasis added). The Comment accompanying
Rule 704(C)(3) states that a judge has a duty to explain to the defendant the
rights set forth in paragraph (C)(3). The Comment also explains that a written
colloquy advising a defendant of his or her post-sentence and appellate rights
may be used provided that the colloquy is made part of the record of the
sentencing proceeding and is supplemented by an on-the-record examination
to determine that the defendant has been advised of the applicable rights
enumerated in paragraph (C)(3) and that the defendant has signed the form.
See id. cmt. Although Appellant signed a written “acknowledgement of post-
sentence procedures following guilty plea,” there is no indication in the
certified record or the sentencing transcript that the trial court supplemented
the written colloquy by an on-the-record examination to determine that
Appellant had been advised of the applicable rights under Rule 704(C)(3)(a).
It is well-settled that “a breakdown of the court processes is found to
have occurred where the trial court or the clerk of courts “departed from the
obligations specified” in Pa.R.Crim.P. 704, relating to procedure at the time of
sentencing, and Pa.R.Crim.P. 720, relating to post-sentence procedures and
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appeal.2 Commonwealth v. Patterson, 940 A.2d 493, 499 (Pa. Super.
2007), appeal denied, 960 A.2d 838 (Pa. 2008). As stated, the trial court
deviated from its clear obligations under Rule 704 by failing to inform
Appellant on the record of his post-sentence or direct appeal rights. Given
this breakdown in the processes of the court, we conclude that the PCRA court
erred in denying Appellant’s request for nunc pro tunc reinstatement of his
post-sentence and direct appeal rights. Thus, we vacate and remand this case
to the PCRA court with instructions to grant Appellant’s PCRA petition and to
reinstate Appellant’s post-sentence and direct appeal rights consistent with
this Memorandum.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2021
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2 Rule 720 governs the filing of an appeal from a judgment of sentence.
See
Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en banc),
appeal denied, 882 A.2d 472 (Pa. 2005).
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