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HomeMy WebLinkAbout99-2243 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN EDWARD STONE,' JR. NO. 99-2243 CRIMINAL TERM IN RE: PETITION FOR POST CONVICTION RELIEF BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., June 17, 2003. In this driving under the influence case, Defendant has filed a Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act alleging that his trial counsel failed to properly file an appeal of Defendant's case to the Pennsylvania Superior Court, as Defendant had directed. The remedy requested for this allegedly inadequate representation is a reinstatement of Defendant's appellate rights. For the reasons stated in this opinion, the requested relief will be granted. STATEMENT OF FACTS Defendant, John Edward Stone, Jr., was found guilty following a jury trial of driving under the influence.~ Prior to this, Defendant argued in an Omnibus Pretrial Motion for Relief that the Information should be quashed because the Information lacked a "to wit clause.''2 This motion was denied by the Honorable Kevin A. Hess of this court by an order dated May 3, 2000, accompanied by an opinion.3 ~ N.T., Trial, Jul. 20, 2000, 110; Verdict Slip, Jul. 20, 2000. 2 Omnibus Pretrial Motion for Relief, filed Dec 17, 1999. In addition, Defendant argued in this motion that some physical evidence and statements should be suppressed, but this issue does not appear in a statement of matters complained of on appeal, discussed hereafter in the text. Opinion and Order, May 3, 2000 (Hess, J.). Defendant then filed a pretrial Motion To Dismiss Pursuant to Rule l l00(G), asserting that the Commonwealth had failed to bring the case to trial within the 365-day limit.4 This motion was denied by the writer of this opinion by an order dated July 17, 2000.5 Following the guilty verdict, Defendant filed a Motion for Judgment of Acquittal Pursuant to Rule 1125 of the Pennsylvania Rules of Criminal Procedure, arguing that the Commonwealth had failed to prove beyond a reasonable doubt that a certain sample of blood subjected to a BAC test was Defendant's and had thus failed to prove beyond a reasonable doubt the blood alcohol level of Defendant.6 The Honorable Edgar B. Bayley of this court, who was the trial judge, denied this motion by an order dated August 28, 2000.7 Defendant, a third offender for purposes of the DUI mandatory sentencing law,8 was sentenced to pay the costs of prosecution and a fine, and to undergo a term of imprisonment of 90 days to 23 months.9 Defendant filed a notice of appeal from the judgment of sentence to the Pennsylvania Superior Court on September 29, 2000,~° and later filed a Brief Statement of Matter Complained upon Appeal [sic] setting forth the following reasons for the appeal: I. Was the Information defective in that it failed to contain a to wit clause? II. Did the court err when it denied Defendant's request to have his case dismissed pursuant to Rule 11007 4 Motion To Dismiss Pursuant to Rule 1100(G), filed Jul. 12, 2000. 5 Order of Ct., July 17, 2000. 6 Motion for Judgment of Acquittal Pursuant to Rule 1125 of the Pennsylvania Rules of Criminal Procedure, filed Jul. 25, 2000. ? Order of Ct., Aug. 28, 2000. 8 N.T. Sentencing Hr'g., Aug. 29, 2000 at 2. 9 Id. at 3.; Order of Ct., Aug. 29, 2000. l0 Notice of Appeal, filed Sep. 29. 2000. 2 TTT. Did the court err when it denied Defendant's motion for judgment of acquittal based upon the sufficiency of the evidence in regards to Defendants' [sic] blood alcohol content at the time the crime is alleged to have been committed?~ In response to this statement of matters complained of, opinions were filed pursuant to Pennsylvania Rule of Appellate Procedure 1925 in support of the rulings on the issues of the sufficiency of the evidence and Defendant's Rule T TOO motion, by Judge Bayley and by the writer of this opinion.~2 Upon consideration of Defendant's appeal, the Pennsylvania Superior Court quashed the appeal sua s£onte, noting that it had not been filed within the thirty-day period provided for in the Rules of Appellate Procedure.~3 Subsequent to this, Defendant filed in this court a Petition for Leave To File Appeal Nunc pro Tune,TM which was granted without a hearing.~5 The Pennsylvania Superior Court once again quashed the appeal, explaining [t]he law is clear that a criminal defendant who neglects to file a timely appeal is limited to seeking an appeal nunc pro tune via a petition under the Post Conviction Relief Act .... The certified record reveals that appellant did not file a PCRA petition, nor did the trial court consider appellant's motion in the context of the PCRA.16 Defendant, having retained new counsel,~7 then filed the Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act sub judice, ~ Brief Statement of Matter Complained upon Appeal, filed Oct. 25, 2000. ~2 Opinion Pursuant to Pennsylvania Rule of Appellate Procedure 1925, Dec. 18, 2000 (Bayley, J.) (addressing the sufficiency of evidence issue); See Opinion Pursuant to Pa. RAP. 1925, Dec. 15, 2000 (Oler, J.) (addressing the Rule 1100 issue). ~3 Memorandum Opinion, Commonwealth v. Stone, 1772 MDA 2000 at 3, Feb. 6, 2002; see also Pa. RAP. 105(b) & 903(a).. 14 Petition for Leave to File Appeal Nunc pro Tunc, filed Feb. 17, 2002. ~5 Order of Ct., Mar. 18, 2002. ~6 Memorandum Opinion, Commonwealth v. Stone, 478 MDA 2002 at 2, Nov. 12, 2002. l? N.T., Hr'g, Jun. 12, 2003 (hereinafter N.T. ~) At the time of the drafting of this opinion, the transcript of the hearing had not yet been filed. 3 requesting that the court issue an order allowing him to file a direct appeal nunc pro tunc.~8 This court held a hearing on the PCRA petition on June 12, 2003. The evidence that was presented at the hearing on this petition may be summarized as follows: Defendant's trial counsel testified that Defendant had informed him, at the beginning of the attorney-client relationship, of Defendant's desire to appeal the case on grounds that counsel thought appropriate, if he failed to obtain an acquittal at trial. ~9 Similarly, Defendant testified that he had instructed his attorney to file an appeal,2° that he himself had possessed no knowledge of court procedures,2~ and that he had assumed his counsel would take the requisite steps to properly file the appeal.~ No evidence to the contrary was presented by the Commonwealth, and the court found both witnesses credible. The appeal requested by Defendant was not properly filed, as a consequence of which it was quashed.~3 DISCUSSION Statement of the Law With respect to the effect of an attorney's failure to file a requested direct appeal in a criminal case, the Pennsylvania Supreme Court has set forth the following rule: [W]e 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 ~8 Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act, filed Mar. 14, 2003. 19 N.T. 20 N.T. 21 N.T. 22 N.T. 23 Memorandum Opinion, Commonwealth v. Stone, 1772 MDA 2000, Feb. 6, 2002. 4 appeal under Article V, Section 9, and constitutes prejudice for purposes of Section 9543(a)(2)(ii) [of the Post Conviction Relief Act]. 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. Commomvealth v. Lantzy, 558 Pa. 214, 226-227, 736 A.2d 564, 572 (1999) (footnotes omitted). The Lantzy Court further explained that "the failure to perfect the requested appeal is the functional equivalent of having no representation at all .... "Id at 225, 736 A.2d at 571, citingEvits v. Lucey, 469 U.S. 387, 396-97, 105 S. Ct. 830, 836, 83 L. Ed. 2d 821,830 (1985). Application of the Law to Facts In the present case, Defendant's counsel failed to properly file the appeal requested by Defendant by doing so in a timely manner. This was, in the court's view, the equivalent of not having filed an appeal at all, for purposes of Lantzy, and represented ineffective assistance entitling Defendant to the limited relief provided for hereafter. ORDER OF COURT AND NOW, this 17th day of June, 2003, upon consideration of Defendant's Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act, and for the reasons stated in the accompanying opinion, the petition is granted and Defendant is given thirty days from the date of this order to file a direct appeal to the Superior Court of Pennsylvania nunc pro tune. BY THE COURT, Jaime M. Keating, Esquire Chief Deputy District Attorney /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 5 Nathan C. Wolf, Esquire 35 East High Street Carlisle, PA 17013 Attorney for Defendant 6 7 COMMONWEALTH Vo IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN EDWARD STONE,: JR. NO. 99-2243 CRIMINAL TERM IN RE: PETITION FOR POST CONVICTION RELIEF BEFORE OLER, J. ORDER OF COURT AND NOW, this 17th day of June, 2003, upon consideration of Defendant's Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act, and for the reasons stated in the accompanying opinion, the petition is granted and Defendant is given thirty days from the date of this order to file a direct appeal to the Superior Court of Pennsylvania nunc pro tunc. BY THE COURT, Jaime M. Keating, Esquire Chief Deputy District Attorney Nathan C. Wolf, Esquire 35 East High Street Carlisle, PA 17013 Attorney for Defendant J. Wesley Oler, Jr., J.