Com. v. Resch, W.

J-S72003-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM RESCH, :
:
Appellant : No. 1382 WDA 2013
Appeal from the PCRA Order Entered July 8, 2013,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0017058-2010
BEFORE: BENDER, P.J.E., SHOGAN and STRASSBURGER,* JJ.
DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED DECEMBER 2, 2014
I respectfully dissent.
Although Appellant entered into a negotiated plea agreement, he still
was entitled to file a direct appeal wherein he could have challenged a very
limited category of issues. See Commonwealth v. Lincoln, 72 A.3d 606,
609 (Pa. Super. 2013) (“Settled Pennsylvania law makes clear that by
entering a guilty plea, the defendant waives his right to challenge on direct
appeal all nonjurisdictional defects except the legality of the sentence and
the validity of the plea.”). In his PCRA petition, Appellant claimed that plea
counsel failed to file a direct appeal on Appellant’s behalf, despite Appellant’s
request that counsel do so. PCRA Petition, 10/26/2012, at ¶6. On appeal,
Appellant inartfully renews this argument. Appellant’s Brief at 13a-14a, 19a.
* Retired Senior Judge assigned to the Superior Court.
J-S72003-14
The Majority rejects this argument, concluding that “the record
supports the PCRA court’s conclusion that Appellant did not prove he
requested an appeal and Attorney Coffey disregarded that request.”
Majority Memorandum at 9 (emphasis added). The PCRA court, however,
did not provide Appellant with a hearing to allow him the opportunity to
prove that he asked plea counsel to file a direct appeal.
In my view, a genuine issue of material fact exists as to whether
Appellant asked plea counsel to file a direct appeal. Consequently, I would
vacate the PCRA court’s order and remand the matter with instructions to
appoint new counsel for Appellant and to hold a hearing regarding
Appellant’s claim that plea counsel was ineffective for failing to file a direct
appeal on Appellant’s behalf.
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