Com. v. Curtis, J.

J-S23002-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JOHN ROBERT CURTIS
Appellant No. 77 MDA 2022
Appeal from the PCRA Order Entered December 14, 2021
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0003035-2011
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED OCTOBER 13, 2022
Appellant John Robert Curtis appeals from the December 14, 2021 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. PCRA counsel has filed a no-merit letter and application to withdraw
under Turner/Finley.1 Upon review, we vacate and remand and deny the
application to withdraw.
The facts and procedural history of this case are undisputed. As
summarized by the PCRA court:
On September 28, 2011, [Appellant] entered an open guilty
plea to retail theft [(18 Pa.C.S.A. § 3929(a)(1))], and conspiracy
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* Retired Senior Judge assigned to the Superior Court.
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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to commit retail theft [(18 Pa.C.S.A. § 903(a)(1))]. Immediately
prior to entering his plea, [Appellant] executed a five[-]page form
entitled: “Statement Accompanying Defendant’s Request to Enter
a Guilty Plea” [(the “Statement”)]. In this document, [Appellant]
acknowledged, on the first page, that both of these offenses were
graded as felonies of the third degree and that each offense
carried a maximum possible penalty of seven years’ imprisonment
and/or a fifteen-thousand dollar ($15,000.00) fine. He further
acknowledged, on page 4, that the court could impose a total
aggregate sentence of up to fourteen years’ imprisonment and/or
a thirty-thousand dollar ($30,000.00) fine.
During the subsequent guilty plea colloquy that was
conducted on the record, [Appellant] indicated that he reviewed
the Statement with his attorney and that he understood
everything that was contained in this document. Th[e] court,
being fully satisfied that [Appellant’s] plea was entered knowingly,
intentionally and without any coercion, accepted his open pleas to
both of the aforementioned [crimes]. In response, [Appellant]
signed the reverse of the information, changing his pleas from not
guilty to guilty[.]
[Appellant’s] sentencing was deferred until November 4,
2011 to allow the parties to present evidence on the appropriate
guideline ranges and, in particular, the offense gravity score for
each of the offenses. [At sentencing, the] court determined that
the total restitution amounted to three thousand, seven hundred
seventy-seven dollars and thirty-six cents ($3,777.36). As a
result of this finding, the offense gravity score for both offenses
was properly graded as a five. Based on [Appellant’s] undisputed
prior record score being a three, the applicable guidelines called
for a standard range sentence of six to sixteen months.
After giving due consideration to the guidelines, the
arguments made on the record in open court, and the nature of
the crimes that occurred, th[e] court issued standard range
sentences for both of the offenses. Specifically, [Appellant]
received a sentence of not less than sixteen months to seven
years for retail theft. As for conspiracy to commit retail theft,
[Appellant] received another standard range [consecutive]
sentence of twelve months to seven years[. Appellant was made
RRRI eligible after twelve months and was given credit for 82 days
of time served. Additionally, Appellant was ordered to be excluded
from any and all property owned or operated by Walmart and
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directed to pay restitution in the amount of $3,777.36 and a fine
of $500.00.]
Immediately after the imposition of sentence, [Appellant’s]
conflict counsel, Attorney Abby Rigdon, presented th[e] court with
another document, entitled: “Defendant’s Acknowledgment of
Post Sentence Procedures Following Guilty Plea.” This form
describes, in detail, the timing and procedures for how and when
to file a post-sentence motion as well as an appeal. This was
signed by [Appellant], submitted to the court, and filed with the
clerk of courts office. In addition to the original, a copy of the
post-sentence procedures form was given to [Appellant] by
Attorney Rigdon, who stated on the record that she reviewed this
document with [Appellant].
Subsequent to [Appellant] being sentenced, and while still
in the courtroom, Attorney Rigdon sat down with [Appellant] and
asked him if he wanted her to file a motion for reconsideration of
the sentence. According to Attorney Rigdon, the following
occurred:
A And I turned to him and said, do you want me to
file a motion to reconsider sentence and he looked at
me and he was just like, no, no, no, I just want it to
be done. It’s fine. I just want it to be done. And I
said all right, well, if you change your mind you need
to let me know, we only have 10 days.
....
Q So when you left court that day was it your belief
that [Appellant] wanted to appeal?
A No.
[N.T. Hearing, 9/16/21 at 23-24].
[Appellant] was subsequently taken back to the Berks
County Prison. While there, [he] obviously had a change of
thought. On November 7, 2011, [Appellant] filled out a “Request
for Information/Assistance” form in which he indicated his desire
to appeal. However, while this form indicates a desire to file an
appeal, the form was addressed to the Public Defender’s Office
and specifically indicated that [Appellant] did not know his
attorney’s name or how to get a hold of her. The problem with
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[Appellant’s] correspondence was that Attorney Rigdon was not
employed by the Public Defender’s Office. More notable is that
[Appellant] sent this correspondence to the Public Defender’s
Office despite having received formal communication from Court
Administration [on June 2, 2011] which provided [him] with
Attorney Rigdon’s name and complete contact information.[2] At
the recent PCRA hearing on September 16, 2021, [Appellant]
openly acknowledged receiving this letter from Court
Administration.
It is unknown by any of the parties when [Appellant’s]
“Request for Information” was received and reviewed by the Public
Defender’s Office.[3] All that is known is that the Public Defender’s
Office faxed [the] Request for Information form to Attorney
Rigdon on November 14, 2011 at 1:07 PM.
Th[e] court credits the testimony of Attorney Rigdon when
she stated that she was not notified of the fax until the following
day, November 15, 2011—one day after the 10-day deadline for
filing post-sentence motions. Attorney Rigdon subsequently
drafted and filed a post-sentence motion wherein she
acknowledged not being made aware of [Appellant’s] letter to the
Public Defender’s Office until November 15, 2011. By order dated
November 18, 2011, the post-sentence motion was denied as it
was not timely filed.
On October 22, 2012, [Appellant pro se] filed his first [PCRA
petition]. Less than one week later, th[e] court received a letter
from the Pennsylvania Board of Probation and Parole indicating
that [Appellant] was being considered for parole. On June 5,
2013, [Appellant] was, in fact, released on state parole and th[e]
court received no further communication from [him].[4]
In October of 2020, th[e] court became aware that
[Appellant] was reincarcerated for allegedly violating the terms
and conditions of his parole on this instant docket. As a result,
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2 The record is bereft of any indication that Appellant ever sent any written
correspondence to Attorney Rigdon.
3 The Request for Information, however, bears a stamp “NOV 10’11 AM 8:09”.
4 We note, without expressing an opinion, that it is unclear why the PCRA
court held Appellant’s October 22, 2012 pro se PCRA petition in abeyance until
October 6, 2020, when it finally appointed PCRA counsel.
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th[e] court immediately issued an order appointing PCRA counsel.
On June 2, 2021, PCRA counsel, Attorney David J. Long, [filed] an
amended petition in which he alleged that Attorney Abby Rigdon
provided ineffective assistance of counsel. Specifically,
[Appellant] allege[d] that Attorney Rigdon was ineffective because
[Appellant] did not wish to waive his preliminary hearing, that he
believed the most severe sentence he could receive was one year
to five years, that he always intended to fight the charges against
him, and that he was unable to contact Attorney Rigdon to indicate
he wished to file an appeal. The second allegation was that
Attorney Rigdon rendered ineffective assistance of counsel for
failing to file an appeal.
In response to the amended petition, the Commonwealth
was ordered to file an answer to the petition—which [it] did, on
June 23, 2021. As a result of the amended petition and the
Commonwealth’s response, th[e] court issued an order to bring
[Appellant] to Berks County for the purposes of a PCRA hearing
that was scheduled for September 16, 2021.
During the hearing on September 16, 2021, [Appellant]
never offered any evidence suggesting that he was coerced to
waive the preliminary hearing. Nor did [he] testify that he was
coerced into entering a guilty plea as opposed to fighting the
charges against him. The primary focus of [his] testimony was
his dissatisfaction with the sentence imposed by the court and the
failure of Attorney Rigdon to file an appeal. For her part, Attorney
Rigdon responded to the allegations raised by [Appellant] during
the hearing. After the conclusion of the testimony, [Appellant]
and the Commonwealth were directed to submit memoranda of
law, which they did on October 21, 2021 and November 4, 2021,
respectively. After careful review of the pleadings, the testimony
elicited at the PCRA hearing, and the applicable caselaw, this court
[denied Appellant’s] request for relief.
PCRA Court Opinion, 12/13/21, at 1-6 (some quotation marks, citations, and
unnecessary capitalizations omitted). Appellant timely appealed. Both
Appellant and the PCRA court complied with Pa.R.A.P. 1925.
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On May 13, 2022, PCRA counsel filed an Anders5 brief, raising a single
issue for our review. “Did not the PCRA court err by denying relief where
Appellant had demonstrated that he had indicated his desire to appeal to his
counsel and to the PCRA court?” Anders Brief at 5. On June 3, 2022, counsel
filed in this Court an application to withdraw as counsel.
Before we may consider this issue, we must address whether PCRA
counsel has met the requirements of Turner/Finley. For PCRA counsel to
withdraw under Turner/Finley in this Court:
(1) PCRA counsel must file a no-merit letter that details the
nature and extent of counsel’s review of the record; lists the
appellate issues; and explains why those issues are
meritless.
(2) PCRA counsel must file an application to withdraw; serve the
PCRA petitioner with the application and the no-merit letter;
and advise the petitioner that if the Court grants the motion
to withdraw, the petitioner can proceed pro se or hire his
own lawyer.
(3) This Court must independently review the record and agree
that the appeal is meritless.
See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)
(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2008),
overruled in part by, Pitts).
We find that PCRA counsel has substantially complied with
Turner/Finley. PCRA counsel petitioned for leave to withdraw and filed an
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5 Anders v. California, 386 U.S. 738 (1967).
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Anders brief, which we accept in lieu of a Turner/Finley no-merit letter.6
Finally, PCRA counsel informed Appellant of his right to hire a new lawyer or
file a pro se response.
We now turn to this appeal to determine whether it is indeed meritless.
“On appeal from the denial of PCRA relief, our standard of review requires us
to determine whether the ruling of the PCRA court is supported by the record
and free of legal error.” Widgins, 29 A.3d at 819. As this Court has
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. 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
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6Anders sets forth the requirements to withdraw on direct appeal, which are
more stringent than the Turner/Finley requirements that apply on collateral
appeal. See Widgins, 29 A.3d at 817 n.2. “Because an Anders brief
provides greater protection to a defendant, this Court may accept an Anders
brief in lieu of a Turner/Finley letter.” Id.-7-
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counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). “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). “A petitioner must prove all three
factors of the “Pierce[7] test,” or the claim fails.” Id. Put differently, “[t]he
burden of proving ineffectiveness rests with Appellant.” Commonwealth v.
Chmiel, 889 A.2d 501, 540 (Pa. 2005).
Instantly, Appellant’s principal contention is that Attorney Rigdon was
ineffective in failing to file a requested direct appeal. We agree.
We have explained:
It is well settled that when a lawyer fails to file a direct appeal
requested by the defendant, the defendant is automatically
entitled to reinstatement of his direct appeal rights.
Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999). Where a
defendant does not ask his attorney to file a direct appeal, counsel
still may be held ineffective if he does not consult with his client
about the client’s appellate rights. Roe v. Flores–Ortega, 528
U.S. 470 [] (2000)[.] Such ineffectiveness, however, will only be
found where a duty to consult arises either because there were
issues of merit to raise on direct appeal or the defendant, in some
manner, displayed signs of desiring an appeal. Roe v. Flores–
Ortega, supra.....
[W]e acknowledge that our Supreme Court in Lantzy, supra, at
572, held that where there is an “unjustified failure to file a
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7 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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requested direct appeal,” counsel is per se ineffective as the
defendant was left with the functional equivalent of no counsel.
Under this situation, no discussion of the potential merit of any
claims is necessary or warranted. Id. at 572; see also
Commonwealth v. Bronaugh, 670 A.2d 147, 149 (Pa. Super.
1995) (discussing that once a PCRA court determines that a
petitioner sought a direct appeal, the PCRA court is prohibited
from addressing the merits of any other potential claims);
Commonwealth v. Hoyman, 561 A.2d 756 (Pa. Super. 1989)
(same).
To establish per se ineffectiveness, a defendant must still prove
that he asked counsel to file a direct appeal. See
Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001).
Commonwealth v. Markowitz, 32 A.3d 706, 714-15 (Pa. Super. 2011)
(footnotes and some citations omitted).
Here, our review of the record reveals that, on November 15, 2012,
Attorney Rigdon became aware of Appellant’s desire to appeal his November
4, 2011 judgment of sentence. This fact is undisputed. Instead of filing the
requested appeal,8 Attorney Rigdon filed a nunc pro tunc post-sentence
motion, which the trial court denied on November 22, 2011. At this point,
despite being aware of Appellant’s desire for a direct appeal, Attorney Rigdon
simply failed to appeal. In other words, Attorney Rigdon did not file a notice
of appeal.9 This failure to file or perfect a requested appeal resulted in a denial
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8 Attorney Rigdon could have challenged the trial court’s denial of the nunc
pro tunc post-sentence motion on direct appeal, regardless of the merits of
any potential discretionary aspects of sentencing claims.
9 If Attorney Rigdon believed that Appellant could not have raised any
meritorious issues on direct appeal, she would have been well within her rights
to file an Anders brief.
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of rights so fundamental as to constitute prejudice per se. See Lantzy, 736
A.2d at 571. Because of Attorney Rigdon ignored Appellant’s request to
appeal, Appellant was left “without an ability to challenge his conviction and
sentence by means of the direct appeal.” Commonwealth v. Halley, 870
A.2d 795, 800 (Pa. 2005). Thus, when, as here, “counsel’s constitutionally
deficient performance deprives a defendant of an appeal that he otherwise
would have taken, the defendant has made out a successful ineffective
assistance of counsel claim entitling him to an appeal.” Id. Moreover, as
noted earlier, under the circumstances of this case, where Appellant
established ineffectiveness per se because Attorney Rigdon failed to file the
requested direct appeal, no discussion of the potential merit of any claims to
be advanced on direct appeal (nunc pro tunc) is necessary or warranted.
Lantzy, 736 A.2d at 572. Accordingly, the PCRA court erred in denying
Appellant relief. We, therefore, must remand the case to the PCRA court to
reinstate nunc pro tunc Appellant’s direct appeal rights.10
Order vacated. Application to withdraw denied. Case remanded for
proceedings consistent with this decision. Jurisdiction relinquished.
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10In light of our disposition herein, and based upon our independent review,
we cannot agree with PCRA counsel that there is no basis for relief in the
present case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2022
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