HomeMy WebLinkAbout97-1995 criminalCOMMONWEALTH
V.
CALVIN L. BROWN
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAi~D COUNTY, PENNSYLV~i~TIA
IN RE: POST CONVICTION RELIEF ACT
BEFORE GUIDO, J,.
OPINION AND ORDER OF COURT
AND NOW, this
day of NOVEMBER, 1999, the
relief requested in Defendant's Post Conviction Relief Act
Petition is GRANTED and the Defendant is given permission
to perfect an appeal with the Superior court from the
Sentencing Order of December 10, 1998, within thirty (30)
days of todays date.
By the
Edward E. Guido, J.
Jaime M. Keating, Esquire
For the Commonwealth
James K. Jones, Esquire
For the Defendant
William Braught, Esquire
Public Defender's Office
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COMMONWEALTH
V,
CALVIN L. BROWN
- IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
:
:
:
·
· 97-1995 CRIMINAL TERM
·
IN RE- POST CONVICTION RELIEF ACT
BEFORE GUIDO,
OPINION AND ORDER OF COURT
The Defendant filed a petition under the Post
Conviction Relief Act (42 Pa.C.S.A. § 9541, et seq.)
alleging ineffective assistance of his trial counsel. We
appointed new counsel to represent him. An amended motion
was filed by that counsel on August 5, 1999.
Petitioner asks that he be allowed to file a direct
appeal to the Superior Court from the Order of Sentence
dated, December 10, 1998. He alleges that he instructed
his trial counsel to file such an appeal immediately after
he was sentenced.
Trial counsel acknowledges that Petitioner made such a
request. He further acknowledges that his failure to file
a direct appeal was an oversight.~ The District Attorney
does not contest these facts.
~ see Exhibit A to the "Amended Motion for Post Conviction Collateral
Relief ."
97-1995 CRIMINAL
Based upon the above, there is no question that trial
counsel was ineffective and that Petitioner is entitled to
the relief requested. As the Supreme Court recently stated
in the case of Commonwealth v. Lantzy, 736 A.2d 564 (Pa.
1999 ) :
Thus, we hold that, where 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.
Id. at 572.
In view of the above, we are compelled to grant
Petitioner's prayer for relief. Therefore, we must give
him the opportunity to perfect a direct appeal to the
Superior Court from the Order of Sentence entered on
December 10, 1998.
ORDER OF COURT
AND NOW, this 19TM day of NOVEMBER, 1999, the relief
requested in Defendant's Post Conviction Relief Act
Petition is GRANTED and the Defendant is given permission
97- 1995 CRIMINAL
to perfect an appeal with the Superior Court from the
Sentencin~ Order of December 10, 1998, within thirty (30)
days of todays date.
By the Court,
/s/ Edward E. Gui do
Edward E. Gui do, J.
Jaime M. Keating, Esquire
For the Commonwealth
James K. Jones, Esquire
For the Defendant
William Braught, Esquire
Public Defender's Office
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