Opinion
J-S95010-16 No. 3169 EDA 2015
03-13-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. DONNELL NELSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order September 18, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No: CP-39-CR-0000023-2014; CP-39-CR-0000025-2014; and CP-39-CR-0000027-2014 BEFORE: STABILE, MOULTON, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.:
Appellant Donnell Nelson appeals from the September 18, 2015 order of the Court of Common Pleas of Lehigh County ("PCRA court"), which denied his request for collateral relief under the Post Conviction Relief Act (the "Act"), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm
The facts and procedural history of this case are undisputed. Briefly, on June 12, 2014, Appellant entered into a negotiated plea of nolo contendere to two counts of persons not to possess firearms, and two counts of possession of a controlled substance with intent to deliver and received an aggregate sentence of 4½ to 9 years' imprisonment. Appellant did not file a direct appeal. On March 2, 2015, Appellant pro se filed the instant PCRA petition. The PCRA court appointed counsel, who filed an amended petition, raising an ineffective assistance of counsel claim. Specifically, Appellant alleged that his trial counsel rendered ineffective assistance by failing to file a direct appeal. On September 15, 2015, the PCRA court held a hearing on Appellant's petition, at which his trial counsel testified. Crediting trial counsel's testimony, the PCRA court concluded that Appellant failed to request that an appeal be taken from his judgment of sentence. See N.T. PCRA Hearing, 9/18/15, at 32-22. In so doing, the PCRA court denied Appellant relief. Appellant timely appealed to this Court.
Although not clear from his PCRA petition or appellate brief, we assume Appellant seeks to have his direct appeal rights reinstated nunc pro tunc.
As we explained in Commonwealth v. Spencer , 892 A.2d 840 (Pa. Super. 2006):
Generally, if counsel ignores a defendant's request to file a direct appeal, the defendant is entitled to have his appellate rights restored. Commonwealth v. Lantzy , 736 A.2d 564 (Pa. 1999). In Lantzy , our Supreme Court held that an unjustified failure to file a direct appeal upon request is prejudice per se, and if the remaining requirements of the PCRA are satisfied, a defendant does not have to demonstrate his innocence or the merits of the issue he would have pursued on appeal to be entitled to relief. However, such relief is appropriate only where the petitioner pleads and proves that a timely appeal was in fact requested and that counsel ignored that request. Commonwealth v. Harmon , 738 A.2d 1023, 1024 (Pa. Super. 1999). A mere allegation will not suffice to prove that counsel ignored a petitioner's request to file an appeal.
On appeal, Appellant argues only that the PCRA court "erred by finding that counsel was not ineffective for failing to take an appeal[.]" Appellant's Brief at 6. After careful review of the record and the relevant case law, we conclude that the PCRA court accurately and thoroughly addressed the merits of Appellant's claim. See PCRA Court Opinion, 3/8/16, at 4-10. Accordingly, we affirm the PCRA court's September 18, 2015 order. We further direct that a copy of the PCRA court's March 8, 2016 opinion be attached to any future filings in this case.
"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." Commonwealth v. Widgins , 29 A.3d 816, 819 (Pa. Super. 2011). --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/13/2017
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Spencer , 892 A.2d at 842.