Commonwealth v. Hernandez

it that the tencing where is shown POPOVICH, Before ORIE MELVIN clearly usurped court BROSKY, JJ. prerogative prosecution’s POPOVICH, mandatory J.: minimum imposed clearly where the record demon- ¶ 1 This is an from the order prosecution strates that entered Pleas of Court Common agreed mandatory to waive the 4, 1998, County September Lancaster minimum? for leave appellant’s petition which denied review, impo- Upon Sentencing tunc. V. Did the Court’s sentence of aggregate we find that the lower court erred refus- sition of the outer grant appellant’s petition ninety months when However, range aggravated tunc. we need not limits of the sentencing guidelines remand this case for the of a direct called Rather, present state of for a sentence of no more given than record, we months constitute a com- appel- fifty are able to resolve two claim, the sentenc- plete departure lant’s lone an attack from thus an abuse ing guidelines his sentence. of, review, mandating court Upon find the lower discretion we remanded for resentenc- did not abuse its discretion when fashion- case be ing appellant’s Accordingly, ing? judgment

affirm of sentence. sentencing judge’s Did the actions VI. ' ¶ Herein, prejudice towards appellant questions: reflect such complained of on within pellant unwillingness and an to ad- matters (sic) with Pa. resentencing days, here to the accordance fourteen guidelines present such that March the lower R.A.P.1925. On opinion, case should be remanded re- filed which it noted its judge? sentencing before another did not with its or- comply der to file a Pa.R.A.P.1925 statement. Brief, 5-6. pp. Nevertheless, re- attempted the court to ¶ Septem- 3 The record reveals that on appeal.” view “the unknown ‘merits’ of the 20, 1996, pleaded ber to appellant guilty Therein, opined appellant’s that court robbery, aggra- one count of one count of intelli- guilty plea knowingly, was entered assault, recklessly vated one count of en- voluntarily that gently and and the court dangering person another and three sentencing options by in its was not limited counts of criminal In ex- conspiracy. not to in- agreement the Commonwealth’s change appellant’s guilty pleas, for mandatory sentencing provisions voke the agreed proceed Commonwealth not to un- § of 42 Pa.C.S.A. which, der 42 no- Commonwealth, tice from the requires court, in Com On sentencing impose five-year to a Hernandez, monwealth v. No. 00812 Phila mandatory minimum sentence when the (Pa.Su delphia visibly possesses defendant a firearm dur- per.1997), appellant’s held ing the commission of the crimes of rob- of his sentence aspects to the assault, bery aggravated among other failure to had been waived due to counsel’s 9/20/96, Guilty crimes. Plea Colloquy, p. 3. object at time appellant’s sentence

¶4 to file a imposition, of its counsel’s failure Following presentence a investiga- modify sentence and counsel’s tion, motion appellant January was sentenced on failure to file a concise statement of mat 17,1997. The appellant court sentenced appeal, despite ters claimed on a court years imprisonment a term of five to ten order so to do. See Commonwealth robbery for the consecutive term of Jarvis, Pa.Super. 663 A.2d 790 two and one-half years to five for the modify motion to sentence (although aggravated assault. The court also sen- 1410, de optional under Pa.R.Crim.P. appellant tenced to two terms of two and challenge to years preserve one-half to fendant still must imprisonment five for at discretionary aspects of sentence conspiracy robbery to commit a sentencing or in a motion to modi time of conspiracy aggravated to commit as- sault, fy, opportu lower court has an so concurrently to be served to one issue); nity another and to address concurrently robbery 219, 679 A.2d 237 Egan, remaining merged sentence. The offenses (1996) (Superior may address chal sentencing purposes. During sen- lenge of sentence tencing, the court noted that the sentence raised in a though even claim was not sentencing guidelines recommended claim modify motion to sentence where “totally inappropriate” light statement and was raised in Pa.R.A.P.1925 aggravating this case. circumstances of opinion). issue its lower court addressed ¶5 Neither nor his counsel appellant 17, 1998, July through objected any appellant, to his 7 On manner Further, counsel, petition filed a for leave imposition. the time of its nei- new Therein, pro he al- nunc tunc. post- ther nor his counsel filed a appellant prior counsel to modify leged that he directed his sentence motion to counsel, perfect a di- Rather, necessary steps all appellant, through filed take the discretion- appeal properly rect from February 1997. On notice specifi- He ary aspects of his sentence. the lower court direct- February the court to find cally requested appellant ed to file a concise statement claim for direct preserve rendered ineffective assistance preserve properly cognizable due to his failure to PCRA claim peal was not the discre- 9545(a)(2)(n), constitutional 42 Pa.C.S.A. since Finally, tionary of his sentence. an error counsel could not “so him grant asked the court to appellant truth-determining process undermine the to file adjudication guilt or that no rehable tunc. place.” taken See innocence could have (claim at 292 e.g., Lantzy, the lower September On advising defen- court dismissed counsel was ineffective granted tunc and leave post-sen- dant to withdraw his petition pursuant leave to file a tence motions was not Act, 42 Pa. to the Post Conviction Relief claim, since PCRA relief is available 9541-9546, subject §§ provi- C.S.A. to its than the lawful maxi- greater for sentences for concerning eligibility sions relief Lewis, mum); 430 Commonwealth v. filing appeal This followed. deadlines. (1993) 633, 336, A.2d 636 Pa.Super. 634 (claim fail- that counsel was ineffective for that filed begin, 9 To we note pro modify tunc on to sentence is petition appeal his for nunc to file motion 17,1998. earlier, this July discretionary months challenge aspects Several court, in 712 Lantzy, and, therefore, v. Commonwealth cognizable not (en banc), 288, (Pa.Super.1998) A.2d 291 denied, PCRA), Pa. appeal 539 under the reversed, 214, (1999), 558 736 A.2d 564 Pa. (1994); 689, 653 A.2d 1228 Commonwealth that: held 993, Grier, 284, 410 599 A.2d Pa.Super. v. If a to assert 639, defendant desires (1991), denied, Pa. 607 appeal 996 530 deprived counsel’s ineffective assistance (1992)(claim in 250 that counsel was A.2d him to him appeal, causing of the preserve for to the issue of failing effective affecting not the under- prejudice, but modify a motion to sentencing by filing lying adjudication, verdict or the de- scope of the sentence is outside by requesting can relief an fendant seek PCRA); Wolfe, v. Commonwealth pro appeal nunc tunc. See Common- Stock, wealth v. 545 Pa. 679 A.2d (1990)(claim that counsel' was ineffective a defendant an (1996)(granting failing pro tunc where counsel appeal nunc is not appeal of sentence on timely appeal file a direct failed to claim since such an inef cognizable PCRA pro tunc is noting appeal that “an nunc claim affect the truth- fectiveness does not remedy as a to vindicate the intended so as to render determining process right- where unreliable). adjudication guilt extraordinary circum- been lost due to stances.”). be appellant’s The fact that he will not ineffectiveness Since awarded relief under the PCRA does grounded upon an issue that claim was re- petitioner obtaining claim, from prevent in it did not a altogether. lief adjudication of to the verdict or not relate in accepted our invitation guilt, appellant petition of a for leave petition and filed pro in pres- nunc leave pro Lantzy, 712 A.2d appeal nunc tunc. case, petition, rather than a PCRA ent (“If a defendant desires to assert at 291 our in Lant- clearly is a result of decision de- assistance that counsel’s ineffective on direct zy. Appellant’s lone issue causing him of the prived discretionary as- an attack affecting un- prejudice, him but holdings of his sentence. Previous pects adjudication, derlying the de- verdict or a claim clearly this court indicated that by requesting fendant can seek relief failing that counsel was ineffective Strickland; indeed, fit/ic.”)(emphasis origi- approach this nal). here, particularly appli useful since the tunc was made without the benefit of our reversed our en banc decision in provides the pellate rights due to counsel’s failure to review which we Chester, appeal nunc 736 A.2d 564 ed the bifurcated 733 A.2d at Supreme also were perfect a direct appeal, since such claims corpus Rather, on two points: conviction claims ¶ However, petition Commonwealth v. 13 724 A.2d 326 Second, review.” 557 Pa. Court’s recent filing of for leave pro tunc, 1251, exclusive First, our Supreme Court (1999), appellant’s decision to file seeking Lantzy, system post-conviction (1999).1 Subsequent held that “the PCRA approved our on traditional habeas Lantzy, Court, our Supreme Court Commonwealth remedy Kimball, high restoration of 736 A.2d at 570. pronouncements citing for leave to Pa. Chester, 555 Pa. Lantzy, Lantzy. reject- reject- post- v. well Strickland, representation at structive denial this sense in respondent’s President tunity to make a case on the the failure to ington], 466 is the functional pressly gally presumed. Strickland[ Wash circumstances cey], cation of “essentially someone who had no counsel at Indeed, ^{[2052] [830]} Lantzy developed right 469 U.S. the failure to at acknowledges that actual or con falls within a narrow the Strickland decision 836[, 2067[, Judge Strickland II to relief. it is difficult to distinguish on its own waived U.S. ] perfect reasoned, situation ^[387] 83 L.Ed.2d in federal McEwen equivalent which ^[668] all, L.Ed.2d respondent’s oppor at perfect a requested see terms, 396-97, at Additionally, prejudice since from that of jurisprudence. Evitts[ [in assistance 821] 674], category establishes merits; Article setting having 105 S.Ct. itself ex dissent (noting v. Lu Since is le S.Ct. all”), no V, as in requirement ed the which we set forth Pennsylvania 9 of the Constitu- Section Petroski, Commonwealth v. 695 A.2d 844 guarantees appeal tion a direct as of (Pa.Super.1997), and clarified in our en Wilkerson, right, see Commonwealth v. banc in Lantzy. Lantzy, 296, 299, 477, decision In 712 490 Pa. 479 292, (1980), A.2d at we held order to perfect a failure to file or such an qualify for appeal PCRA relief under results a denial so fundamental 9543(a)(2)(ii), post-conviction as petitioner prejudice per to constitute se. See Roe, generally v. 151 F.3d who seeks a direct Canales appeal nunc (9th “it Cir.1998)(stating 1229-30 due to counsel’s failure perfect to a direct every ap federal court of appears only. prove must that counsel peals applied to address issue has ignored appeal, his directive to file an but presumed preju some form of a rule of also that the claims which he seeks to counsel fails to file a notice of dice where raise on direct affected the truth- appeal”).7 determining process and rendered his ad-

judication guilt reversing unreliable. decision,

our our Justices stated: States, Peguero generally v. United See Thus, the issue of whether a claim for 961, 965-66, 23, 28-30, S.Ct. 526 U.S. J„ (1999)(0’Connor, joined L.Ed.2d 18 relief based counsel’s failure to file JJ., Stevens, Ginsburg Breyer, and concur prejudice a direct meets the re- ring)(noting that where a trial court fails 9543(a)(2)(ii) may quirement of Section appeal, a defendant of his advise foregoing be addressed reference to resulting in the defendant's Kimball, fact, well before their deci- court which sion in 1. In brief to this 22, 1999, January filed was filed on was Lantzy. sions in Chester same as our Court's deci- date and, appeal, prejudice is assumed that, Thus, where there we hold accordingly, the need not demon- defendant unjustified request failure to file a is an possessed grounds strate that he meritorious appeal, the conduct of counsel ed direct Ohio, appeal); for an Penson v. 488 U.S. 346, 354, range competence 88-89, falls beneath S.Ct. L.Ed.2d 300 (1988)(holding prejudice that the standard ar- cases, attorneys in criminal demanded of inapplicable Strickland ticulated in where the accused the assistance denies petitioner deprived of the assistance bg guaranteed the Sixth Amend withdrew); appeal after counsel of counsel on States, Rodriquez v. United 395 U.S. ment to the United States Constitution 1715, 1717, 23 L.Ed.2d 340 89 S.Ct. I, Pennsyl and Article Section 9 of (1969)(holding that the defendant enti- Constitution, well as the vania require- tled collateral relief without the V, under Article Section demonstrating ment of that his would which the failure have had merit in case in purposes prejudice for and constitutes attributable to the conviction was Therefore, 9543(a)(2)(H). of Section counsel); California, an error Anders circumstances, where the re 738, 743-44, 386 U.S. 87 S.Ct. 1399- maining requirements PCRA are (1967)(holding that a L.Ed.2d appointed properly pur counsel to refusal of satisñed, required petitioner is not coupled the refusal of the sue an with innocence or demon to establish his counsel, appoint court to substitute amounted or issues strate the merits of the issue process); fundamental due denial of Stearns, 329-30 which would have been raised on United States v. 68 F.3d (9th Cir.1995)("a after a failure (footnote 8 736 A.2d at 571-572 Lantzy, indeed, does, plea result in ineffective assis added). omitted) (emphasis showing specific tance of counsel without a Nagib, prejudice”); United States (7th departures Cir.1995)(petitioner not 14 These two clear F.3d prejudice required to demonstrate key to holding are the from attorney’s failure to file a Strickland as his Supreme resolving this Given timely appeal per se inef notice of constituted Lantzy, appel pronouncement Court’s 1024, fectiveness); Tansy, 46 Romero v. F.3d Cir.) (10th (“if failure to petition, a 1030-31 counsel's lant should have filed PCRA appellant’s perfect appeal a direct violated appeal for leave to rather than a counsel, then right assistance of to effective pro tunc. A claim that counsel appellant has demonstrated both cause appeal a direct failing to file ineffective purposes overcoming any prejudice for federal habeas procedural bar to his claim on petitioner the is by when so directed 1148, denied, review”), cert. 515 U.S. 115 under 42 cognizable claim Pa.C.S.A. 2591, (1995); L.Ed.2d 839 United S.Ct. 132 9543(a)(2)(ii). petitioner is not “[T]he 39, Peak, (4th Cir. v. 992 F.2d 41-42 States or demon required to establish innocence 1993) ("a attorney's failure criminal defense requested by appeal file a notice of when or issue the merits of the strate issue deprives defendant of his Sixth his client the have been raised on direct which would coun right to the assistance of Amendment The A.2d at 572. Lantzy, 736 appeal.” sel, appeal may notwithstanding that the lost appellant seeks fact that issue which probability of suc not have had reasonable Lozada, (“we cess”); 964 F.2d at 956-59 hold i.e., discretionary as raise on appeal, if prejudice presumed under Strickland that is sentence, preclude does not pects of his failure to file it is established that counsel’s relief, claim that appellant’s since PCRA petitioner's appeal was without the notice States, consent”); de 883 F.2d perfect appeal failure to Estes v. United counsel’s 645, 1989); (8th Berry, Cir. Cannon 648-49 compe assistance of nied the accused the 1020, (11th Cir.1984); 1022 United 727 F.2d by the Sixth guaranteed tent counsel 109, Winterhalder, 110 724 F.2d States v. Constitu to the United States Amendment Cir.1983). (10th holding that failure of The requested con- file a I, counsel to 9 of the Penn and Article Section tion prejudice the Strickland stan- under stitutes Constitution, right as the as well sylvania applied circumstances in- dard has been V, Section Article to a direct prisoners. See volving and state both federal alone 9, and, thus, by counsel neglect Canales, F.3dat 1229-30. ' ¶ Court, prejudice Supreme is sufficient to establish The United States 9543(a)(2)(ii). Lucey, purposes 387, 396-97, in Evitts v. 469 U.S. Lantzy, 736 A.2d at 572.2 830, 836-37, 821, 105 S.Ct. L.Ed.2d 830- (1985), stated: appellant’s request 15 The fact that an tunc is a A first as of therefore is claim, despite the fact adjudicated pro- in accord with due not, claim which underlies the is request if the does not have cess of law clearly demonstrated our Supreme attorney. the effective assistance of in Lantzy, Court’s decision since the Court hardly peti- This result novel. The granted request for a direct appeal California, tioners in both Anders v. despite fact Lantzy might seek to 738, 1396, U.S. 87 S.Ct. 18 L.Ed.2d 493 of his Iowa, Entsminger (1967), (when Lantzy, 736 A.2d at 566 1402, U.S. 87 S.Ct. 18 L.Ed.2d 501 describing appellate issues lost (1967), that, although represent- claimed ineffectiveness, counsel’s the Court noted: counsel, they ed in name “It is unclear originally whether he had type received the of assistance constitu- sought challenge only tionally required to render the sentence, aspects of his or whether he also cases, In proceedings fair. both conviction.”). intended attack agreed petitioners, holding with the point 16 At this in our discussion of Anders counsel’s failure in submit apparent block to brief on counsel’s waiver appellant’s request for an appeal nunc Entsminger petitioner’s exists, that being the fact that appel- transcript full the subsequent rendered lant did have a which judgments against petitioners uncon- brief, counsel filed a albeit his short, promise stitutional. claim was waived counsel’s ineffective- Douglas California, 372 U.S. [v. Hall, In Commonwealthv. ness. 713 A.2d 814, 9 S.Ct. L.Ed.2d 811 ] appeal granted (Pa.Super.1998), criminal defendant has a to counsel Pa. 2000 Pa. LEXIS of Gideon promise —like (Pa. 6, 2000), Jan. which was decided Wainwright, [v. 372 U.S. 83 S.Ct. before our Court’s deci- 792, L.Ed.2d that a crimi- ] sion, opined that the grant appeal of nal right defendant has a to counsel at rights nunc tunc would be “limited to trial —would a futile it gesture be unless extraordinary circumstance and [would] be comprehended right the to the effective available to defendants who have not of counsel. assistance already pursued their direct appeal ¶ Evitts, 18 In the However, defendant’s counsel rights.” we are convinced in appeal” failed to file “a statement of despite prior counsel’s of a brief appellant’s rejection Kentucky Appel- direct accordance with Rule of appeal and our 1.095(a)(1)when he filed his appeal upon analy- of that late Procedure based waiver sis, appellant enjoyed Appeals has not brief and record with the Court of actually failure, appeal. Kentucky.3 benefits of a direct of Due to this modify Although appellant ultimately failing and, 2. have file a wants to motion to discretionary aspects thereby, preserve of his sentence re- an attack viewed, cog his current discretionary aspect claim is based on his of sentence is not counsel, claim, prior spite assertion that of his nizable PCRA since such an assertion instructions, perfect ap- properly determining failed to his process. does not affect the truth Hickman, Lewis, Grier, peal. Wolfe, supra; supra. Commonwealth v. supra; See Cf. (1994). 644 A.2d It appeal” distinguishes present was to contain is this fact which 3. The “statement of uniformly appellant appellee, counsel case from those cases which hold the names of and judge, judgment, and trial the date of the a claim that counsel was ineffective for affirmed Supreme Court then 20 The filed a motion to dismiss right of the grant the Sixth Circuit’s requisite file the for failure to as of stating: system “A appeal, Ap- appeal. The Court statement assure that precisely to right is established motion and dismissed peals granted the validly convicted have are only those who The defendant moved for re- appeal. may A not curtailed. State their freedom consideration, that all the neces- arguing right another extinguish right because included within his sary information was effective as right to appellant —the tendering a formal statement of brief violated.” of counsel—has been sistance summarily appeal. Reconsideration 399-400, Evitts, at at 105 S.Ct. 469 U.S. sought Defendant denied. Court of Ken- Supreme review before the Evitts, appel- 21 Like the defendant De- affirmed the conviction. tucky, which appeal via to file a direct lant lost his attempt made one last fendant then comply with rules counsel’s failure to when he appellate review obtain state i.e., by filing a motion procedure, him the grant court to moved the trial the issue raising modify sentence tunc. to file an Pa.R.A.P.1925 statement. also denied. request This appeal, one issue on sought to raise sought then federal 19 The defendant his grounds corpus habeas relief on counsel, However, of his timely to file a statement counsel’s failure ineffectiveness, waived through his clear in dismissal of his resulted Discussion, infra, that lone issue. See thus, and, him the deprived actually filed a The fact that he pp. 10-11. guaran of counsel to effective assistance because it was brief is of no moment Amendment. On teed Fourteenth light of his gesture and futile worthless of the United appeal, inac- Since prior incompetence. counsel’s dispute there was no noted that States had waived tion n in failing to that counsel was ineffective more claim, had no filing of the brief Evitts, file the statement had he not filed appellant than value The at 833-34. U.S. at S.Ct. v. Sulli brief at all. See Commonwealth further observed: Supreme Court van, 472 Pa. a criminal prosecute To (1977) (where brief on counsel’s adversary proeeed- must face an pellant rules Supreme court comply with failed by intri- governed that-like a trial-is draft,” “preliminary to be a appeared be layperson to a would cate rules that ineffective, “the counsel was unrepresent- An forbidding. hopelessly a new remedy appellant is to afford proper de- unrepresented ed reassert the issues may in which he —like protect unable to fendant at trial —is initial counsel’s affected adversely sure, To be interests at stake. vital his stewardship appeal.”). ineffective represen- nominal did have respondent (where counsel Entsminger, supra Cf., appeal. But brought brief, he this tation when a appeal filed perfected direct appeal on as representation nominal record of to file the entire but failed representation right trial, nominal States Su the United petitioner’s —like pro- render the not suffice to ineffective trial —does held counsel was preme Court constitutionally adequate; Supreme that the Iowa ceedings failing to insure available for its provide is unable to full record counsel had the party whose Court during is in no better review consideration representation effective pro nunc for an no counsel at and remanded one has than who position Ciotto, tunc); all. information. administrative and additional the date of the notice of (1989) 930, 931 (i) pre- the failure to raise the claim (where counsel’s ineffective assistance de viously was the result of interference entirely nied him right direct by government pre- officials with the appeal, defendant is entitled to sentation of the claim in violation of pro appeal nunc regal'd without the Constitution or laws of this Com- the merits of the issues he wishes to raise monwealth or the Constitution or laws appeal; defendant pursue States; entitled to of the United post-verdict pro motions nunc tunc where (ii) the upon facts which the claim prior procedural counsel’s error resulted predicated were unknown to the motions).4 post-trial waiver of petitioner and could have been by ascertained the exercise of due dili- ¶ 22 Having determined gence; or claim, has presented a valid PCRA it (iii) right asserted is a constitu- pears that the lower did not abuse tional recognized its discretion in denying petition the Supreme Court the United leave tunc, and we Supreme States or the Court of Penn- should remand this case for the of a sylvania after the period provid- time petition, PCRA as ordered by the lower ed this section and has been held However, court. action this court by that apply retroactively. court to impose injustice would an upon appellant, (2) Any petition invoking exception following as the analysis indicates. (1) provided in paragraph shall be filed ¶ Appellant reasonably relied within days of the date the claim our complied decision and with the presented. could have been procedure set forth therein. If we were to (3) purposes For subchapter, this remand this case for the filing of a PCRA judgment becomes final at the conclu- petition, it untimely. would be Pursuant review, sion of direct including discre- to 42 Pa.C.S.A. any tionary Supreme review the must be filed within year one of the date United States and the the judgment final, becomes un- excepting Pennsylvania, Court of expira- or at the der very three limited circumstances: seeking tion of time for the review. (b) Time for filing petition.— purposes For of this subchapter, “government officials” shall not include (1)Any petition under subchap- counsel, defense appointed whether ter, including a second or subsequent retained. petition, shall be filed within year one 9545(b). 42 Pa.C.S.A. final, the date judgment becomes ¶24 unless the petition alleges peti- and the Appellant’s judgment of sentence proves tioner that: imposed January Thus, expressly distinguish We petitioner herein cases like a PCRA entitled to present where direct counsel’s in- prior tunc where counsel’s effectiveness waived all the issues that effect, actions, entirely denied his to a post-conviction petitioner wished raise opposed petition- to a PCRA from simply those cases where direct prior may er whose counsel’s ineffectiveness every requested did not raise issue more, all, have waived one or but not issues Clearly, the criminal defendant. in both situ- situation, on direct In the latter ations, the criminal defendant petitioner’s right appeal PCRA a to direct However, representation. effective in the la- ’ entirely by denied counsel’s ineffective- situation, fact, ter may, counsel’s conduct in ness, and, therefore, he must establish effective, despite have raising every been counsel’s ineffectiveness so undermined the issue which the defendant believes is meritori- truth-determining process so to render as un- Evitts, 8, ous. See U.S. at 469 396 n. 105 8, guilt Barnes, adjudication reliable the innocence. explaining S.Ct. at 836 n. v. Jones 9543(a)(2)(ii). § 463 U.S. 42 Pa.C.S.A. 103 S.Ct. 77 987 L.Ed.2d (1983); Lantzy, see also 736 A.2d at 572 n. 8. 10 by in recent en banc decision Commonwealth

appellant’s was denied Hitchcock, filed on October Pa.Super. order Thus, (March be- judgment LEXIS 301 came final on when the (en banc). November 2000) Therein, upon in ruling (30) day period thirty filing petition for to appellant’s, similar situation we stated: Supreme for allowance our noted, Appellant As chose previously expired. 42 Pa.C.S.A. See seeking permission to file a for petition 1113(a). 9545(b)(3); § Pa.R.A.P. Since of his reinstatement judgment final well in of sentence was than a futile pro nunc tunc rather file year appellant’s PCRA ago, excess of one petition that have post-conviction would re- untimely would if filed on petition be pursuant to this Court’s been dismissed Furthermore, we cannot contem- mand. Hall, Lantzy in and Petroski. decisions plate claim would any by appellant which specifically cited to these petition filed remand upon render a PCRA as in his cases as well Stock any to sec- timely exceptions under in the memorandum of law brief and tion so as to allow the court to exer- support petition. Appel- filed in of his jurisdiction. cise Pa.C.S.A. 10-11; Petition for Per- lant’s Brief 9545(b)(1)(i iii). See Commonwealth — mission File Motions Nunc Post-Trial Pa. Fahy, Appeal Pro and Motion to Direct Tunc (1999)(time limitations of the PCRA are Tunc, 11/24/98, It at 2. Nunc Pro filed nature, jurisdictional may only be relied on the exist- appears thus he excep- specific avoided one of the three ing therein). caselaw. tions enumerated appellant, he Unfortunately on the Insofar as the effect adminis- our jurisdictional trap been in a caught concerned, justice tration of we note is He for an making. petition filed sweeping retrospective application tunc, pro a timely nunc rather than only concern a limited number would action, Lantzy, decision in because our rul- who followed this Court’s individuals his claim would not clearly indicated that Hall, ings Lantzy and Petroski. Now, upon the PCRA. cognizable be the total of affected defendants While in our illumination of issue further vol- may comparison slight be decision, appel- Court’s in the pending criminal ume of cases PCRA, cognizable claim is under the lant’s courts, may leave application retroactive but, if we remand for of such remedy without a persons wholly would not have petition, the lower court PCRA relief ability obtain their jurisdiction as the adjudicate issue con- may by the time precluded be untimely.5 be petition would 9545(b). By straints in will application comparison, prospective Thus, justice in the interest of specifically who have no effect those fairness, we find that the and fundamental and caselaw. prior practice relied on deny discretion lower court abused its thus of the above factors Consideration nunc appellant’s petition against sweeping retroactive pro militates ruling, we follow tunc. so (i.e., cognizable under corpus since claim 5. We that the writ habeas note tunc) still due but not viable remand the PCRA separate remedy Pennsylvania untimeliness, corpus exists as a habeas its writ of remedy may no be those cases where Fahy, for relief. See not an alternative basis blush, Thus, it PCRA. at first under the pears (where claims are A.2d at Til might entitled to now be PCRA, jurisdictional fail the under the but corpus remand file a writ habeas requirements, corpus is not an alter- habeas seeking tunc since he Chester, relief), supra. citing native basis for However, the PCRA. obtain relief via cannot of application Supreme Shugars’ our Court’s deci- or with counsel. Let- private ter, This was Lantzy. supra. improper. sion certainly Trial not obli- counsel If we to retrospectively apply were gated ap- claims on pursue frivolous Supreme ruling Lantzy Court’s n.8, peal. Lantzy, 558 Pa. at 226 here, of Appellant’s sole means obtain- Nevertheless, A.2d at 572 n. 8. he was reinstatement of his direct permitted unilaterally withdraw. rights petition would be to file a Appellant’s If claims to counsel believed 221, Lantzy, the PCRA. 558 Pa. at frivolous, obligated be wholly he was Unfortunately A.2d at 569. for Appel- procedures adhere forth in set lant, any petition subject would be 738, California, Anders v. U.S. to the time limitation forth in 42 set (1967) 1396, S.Ct. 18 L.Ed.2d 493 9545(b). here, applied As McClendon, Commonwealth v. 495 Pa. Appellant’s untimely would be (1981). Lantzy, 434 A.2d 1185 of satisfy excep- unless he could one n.8, Pa. at 226 736 A.2d at 572 n. 8. As 9545(b). tions in section Retroactive Court, by recognized Supreme our plication Supreme of our Court’s deci- unjustified where is an there failure to sion in could therefore result in requested file a direct the con- conviction, the affirmance of Appellant’s range duct of falls beneath the counsel leaving remedy. him without any competence attorneys demanded criminal cases denies the accused unjust. Such a result is It would right counsel as assistance of serve unfairly penalize Appellant for guaranteed by the United States and adhering procedure for obtaining Id., Pennsylvania 558 Pa. Constitutions. specifically redress that was approved at A.2d at by Where, here, this Court. a defen apparent is Because it from the face dant has been misled the actions of unjusti- that trial record court, fiedly to file a requested failed has not hesitated grant relief in the appeal and because relied Appellant justice. See, interests e.g., Common procedure obtaining re Tyson, 391, 394-395, wealth v. 535 Pa. in Lantzy, dress outlined this Court (1993) 635 A.2d (granting 624-625 justice require interests the rein relief in form of a trial new where Appellant’s to a statement of the defendant was misled the Su Powell, appeal. Tyson supra. As preme decision); own Court’s Common summarily Appel the trial court denied Powell, 288, 292-294, wealth v. 527 Pa. petition, lant’s we are to re compelled (dis 1242-1243 remand, Upon verse and remand. cussing the inherent the courts an appro direct the trial court to enter grant justice relief the interest Appellant’s priate reinstating order is so required). whenever it to a direct tunc. 226-228, Lantzy, at A.2d at 558 Pa. manner, Viewed we find that addition, appears 572-573. In as it the trial court abused discretion by its trial Appellant indigent, summarily denying petition. shall appoint represent Ap counsel to unequivocally The record demonstrates pellant. Appellant Attorney Shugars asked also, Garcia, 2000 See Commonwealth v. to file a direct Sentencing, N.T. Pa.Super. 10; 11/26/97, Letter, Shugars’ supra. (fin (March 2000) banc). LEXIS 299 Notwithstanding Ap- awareness desires, pellant’s Attorney Shugars Likewise, ad- it from apparent vised that he would file an appellants the face of record that trial First, and that se counsel was proceed could ineffective.

12 hearing guilty plea withdraw a appeal challenging had a to file an motion, aspects colloquy’s inadequacy his sentence discretionary plea the of where and, record); an light appeal existing of counsel’s of is Com evident the issue, clearly raising appellant direct- Pa.Super. McKnight, v. 311 monwealth (remand perfect appeal.6 (1983) counsel to this issue for 460, 1272, ed 457 A.2d 1276 Second, preserve counsel’s failure to tunc is not fifing for by fifing mo- appellate claim for review a necessary where the record is sufficient to the modify raising tion to sentence or raised on the issue which would be review statement, or- a Pa.R.A.P.1925 as issue appellant has briefed those is court, obviously a lower lacks dered the sues). which tence ing tion investigation the fight this case for review. Rather, addressed reasonable basis to effectuate cally attack 2871, at (Sept. per interests. ly prejudiced ing cordingly, quested counsel cause discretionary aspects ¶28 sentence, motion transcript, 236, for a of the should and the record includes 17,1999). counsel’s Although we find that determine whether we **5 *P n. for we And existing precedent 8 will turn now to n. have Herein, direct the and the the since the record is need not remand 5, third, filed, the to file a direct v. failure 5, copy fifing 738 granted appellant’s peti counsel’s Harmon, 1999 appeal challenging challenges appellant we need not remand court filed March appellant of his A.2d Opinion of a direct effectively Pa.Super. 1023, omissions, appellant 1999 PA the sentenc presentence Sur appeal. was actual- for appellant’s appellant’s aspects of the 1024 n. 5 adequate the his sen a hear- LEXIS Appeal specifi waived lower time Ac- Su be- the re- Cf. lines and sons claims with court did aggravated range of the inconsistent with a ment that monwealth v.] pellant avers that there 496,] question recognize allowance Code, tencing except legality of the sentence. (1992) is 508, Commonwealth v. 1994] is ¶29 Appellant begins Appellate prescribed by discretionary for appropriate Sentencing Code 522 Pa.Super. (quoting Commonwealth 639 42 (en banc)). imposing thereby A.2d 17 whether Pa.C.S. an A.2d substantial review adequately explain advances assertion that Canfield, [432 trial court’s actions are 93, a sentence 42 ^[46] §§ (1987). abused the sentence We to all Tuladziecki, 513 Pa. specific provision Pa.C.S. 613 A.2d 9701-9799.6. at 48 will be inclined to sentencing guide- sentencing question the contrary colorable his where We its a substantial § outside the Sentencing sentencing [Pa.Super. discretion. the lower will Pa.Super. 9781, 587, imposed its rea- the “where of sen Jones, [Com issues argu grant 590 ap which underlie the fundamental norms 1997, 10, response ap sentencing process.” Id. Where forth in detail reasons appeal and set court failed pellant trial asserts imposed. Cf., Common sentence for im sufficiently its reasons to state Reed, n. wealth 488 Pa. (court (1980) Sentencing outside the posing sentence will not 480 n. 3 A.2d Guidelines, conclude we will fifing post-verdict motion remand discretionary aspects his sentence recognize 6. We defendant does permission which is considered review have absolute if the review and which will of his sentence. Vrrutia, question that a substantial defendant raises Commonwealth v. appropriate un- imposed is not (citing 42 A.2d denied, 9781(b)), Sentencing Commonwealth v. Code. Pa. der Tuladziecki, (1987); Nevertheless, (1995). 513 Pa. defendant 9781(b). challeng- 42 Pa.C.S.A. right to does have the file January sentencing ques stated substantial guidelines range tion for our the standard of provided review. Commonwealth (Pa.Su Wagner, twenty eight A.2d months for both offenses [1997]).... per.1996 range twenty and an of aggravated field, 639 A.2d at “Sentencing merely sound discretion of the cretion.” and a appeal absent a manifest 693 [Pa.Super. 1995]. In this [446 an abuse sentence [Commonwealth is a matter error discretion is not shown will not 192,] sentencing judge, judgment. (citing be disturbed on vested A.2d abuse v.] Common Johnson, ^[690] context, of Can dis twenty-six August robbery sentence of addition, appellant’s aggravated assault sentence of lines.9 and twenty §§ exceeds the aggravated range 303.10, 303.16 aggravated range months thirty 1994).8 months. (as amended, of sixty greatly Clearly, appellant’s sixty to one hundred guidelines. months of the exceeds the Pa.Code. effective guide- also In Kocher, wealth v. Pa. ¶ 32 At the time of sentencing, lower (1992)). Rather, A.2d court explained its reasons for appellant’s establish, appellant must by reference to sentence, as follows: record, court In imposing have consid- ignored law, misapplied exercised presentence report, ered the the Sen- its judgment for partiality, reasons of Code, tencing the sentencing guidelines, will, prejudice, bias or ill or arrived at a the comments of the Attorney District manifestly unreasonable Id. decision. Counsel, and Defense and the remarks Rodda, Commonwealth v. A.2d of the victim the victim impact and 213-14 (Pa.Super.1999). statement. ¶30 light appellant’s allegation We tyranny have also considered the that the imposed sentence well in abroad in the land in which citizens are aggravated excess of the range of the sen- practically their own in defending tencing guidelines without stating ade- against themselves criminal predators. reasons, quate we find that appellant has Our Common raised a substantial question whether his wealth versus Wright, 508 Pa. [494 appropriate sentence is under the Sentenc- 354,] up summed this concern when ing Code, §§ 42 Pa.C.S.A. 9701-9799.6.See Society it said: tyr cannot tolerate Wagner, swpra. anny of armed felons. many are aggravating There so cir- previously stated, 31 As the lower case, cumstances in hardly this one court sentenced appellant to a term five begin reciting knows where to them. years to ten of imprisonment for his rob bery conviction and a First, consecutive sentence felony was a force and years two and one-half five impris surprise against victims have who his aggravated onment for right, assault convict lawby decency, and common ion.7 appellant’s At the time of physical sentenc- inviolability.

7. The imposed court also two terms of two note 9.We also concurrent years imprisonment and one-half five years two sentences of and one-half to five appellant's two conspiracy convictions to be conspiracy convictions also exceeded the served concurrent to one another and concur- aggravated range sentencing guide- robbery rent to the lines, provided aggravated range which eighteen impris- twenty-four months of gravity appel- 8. The offense score for both onment. robbery aggravated lant's assault convic- nine, 303.15, tion was 204 Pa.Code zero, appellant’s prior score record Pa.Code 303.7. utter word of intrusion, utter this loathsome

Second, rob- but to this loathsome psy- contempt. physical and assault left bery, marks on the victims. chological already enough recited If I have not circumstances, recite let me aggravating impact state- from the victim I read more. a few Donald of Donald L. Watson: ment with beaten the head about Watson in this two victims there were Again, of possession that was the gun case, and his wife. Watson Mr. kicked Hernandez. I was then Ricardo robbed, she was not While she was on lay helpless ground. I the as this by threatened She was present. by again gun with a was frightened. I was beaten She was incident. She I cuts received numerous hu- Hernandez. was She had fear. She terrorized. head, knees, on my received stitches on miliated. x-rayed pains I for head. was also

my this recommended guidelines The abdomen, my chest and stitches totally inappropriate. case are head. I in emer- my spent three hours Transcript, pp. 9-12. Sentencing I gency. was CAT Scan. given also review, lower we find the Upon the I tend to have about nightmares reasons express sufficient court did anger I attack. moments of experience range the aggravated in excess of sentence February I night when reflect on that of Presently, sentencing guidelines. the of 11,1996. in the hit Mr. Watson appellant repeatedly I feel almost because prisoner like a and him while handgun with a kicked head leaving of the fear home. I my of do and demanding and shouting profanities now. always carry gun feel safe. I seizing Appellant Mr. Watson’s valuables. at My wife I home coming and avoid and robbery the handgun used to commit I always have to night. feel that we is handgun aggravated assault. Use of look over our shoulder. robbery or necessary of not a element case, in this

Third, charged as aggravated assault aggra- egregious and the most factor. aggravating clearly circumstance, and vating pre- in the appears Darden, 366 Cf ., report, was testified and (sic) the morning, hear which this (trial ag as an

victim, considered Watson, properly thing The states: next knew, age of factor the victim’s gravating suspects standing he the were is not an the of victim vehicle, years, age his side a nickel- since pointing Fur robbery). plated element of crime handgun small win- caliber at the bodily psy and dow, ther, him, Mr. suffered yelling: your me mon- Watson Give wallet, a result ey, chological injuries as your rings, you mother fuck- Watson, attack, who and Mrs. unprovoked er. robbery aggra present during word, fucker, This detestable mother assault, also traumatized vated painful which is embarrassing factors, nec which were not These event. utter, the Court a frequently used to which of the offenses essary elements vulgarity in our slowly society. decaying cit properly guilty, were pleaded This no vulgarity longer has any sexu- lower court when ed al but connotation reveals an utter con- range aggravated appellant outside tempt victim, for the is ruthlessly de- sentencing guidelines. grading, impairs the dignity of the human substance. low argues that the use it considered when predators

These court erred er during fucker” shameless “mother audacity profanity rob and attack aggrava- anas this his crime husband in the commission wife presence of his ting Initially, agree mandatory circumstance. with minimum sentence under the lower court that 9712.10 profan- the use of this ity aggravating could be considered an cir- sum, 36 In we find that appellant’s Nevertheless, cumstance. if was the attack upon discretionary aspects of aggravating lone factor cited the lower his sentence must fail. We have reached court, a sentence of the aggravated outside by finding this issue that the lower court range guidelines justi- would not be denying appellant’s petition erred in However, stated, fied. as previously pro tunc, appeal nunc since to do other- court did state other sufficient reasons for impose injustice appel- wise would imposed, including appellant’s the sentence lant. use of a handgun negative impact and the ¶ 37 Judgment sentence affirmed. of the crime on the victims. ¶ BROSKY, 38 files a Dissenting J.

¶ Also, appellant, citing Com Opinion. 35 Pittman, monwealth v. 272, 515 Pa. 528 BROSKY, J., dissenting. (1987), A.2d 138 claims that the court imposing erred in mandatory minimum 1 I respectfully dissent from the deci- sentence where the my colleagues Commonwealth did not sion of in this matter be- I Appellant’s exercise its discretion to cause believe that proceed challenge discretionary aspects to the mandatory of his sentence sentencing provision. We is not properly disposition before us for a certainly agree with appellant that the low on the I merits. am concerned that er court cannot itself invoke the mandato decision of the majority this case has a ry sentencing provisions of 42 Pa.C.SA. potential for a broader-sweeping effect 9712, § which requires the imposition of a with regard challenging to claims the dis- mandatory minimum years sentence of five cretionary aspects sentencing than the where the defendant inis visible posses majority may intend. sion of a firearm during the commission of Pittman, robbery, among other crimes. ¶ 2 majority The concludes that the trial However, 528 A.2d at 141. this is not court an abuse of committed discretion what the lower court did presently. Rath denying for a nunc er, the court sentencing exercised its dis Appellant presented because § cretion under Pa.C.S.A. and valid PCRA claim. From their conclusion imposed a years sentence of five to ten that a present- valid PCRA claim has been upon appellant’s robbery conviction ed, the majority decides that we should setting after forth sufficient aggravating forge exploration forward into an of the circumstances to warrant such a sentence. challenge discretionary aspects of Accordingly, we find that the lower court Appellant’s the interests of did not abuse its discretion in imposing justice and fundamental fairness and de- sentence which coincidentally equaled the cide the here. I with issue take issue Hanis, appeal, appellant’s 10. We note that on Slip Op., co- Pa.C.S.A. at cit- Pittman, Second, successfully challenged defendant 528 A.2d at 141. even if the discre- sentence, actually impose the court did not tory the manda- tionaiy aspects of his we re sentence, we that the minimum found resentencing. manded case for Common court its discretion at the time of abused Harris, Philadelphia wealth v. "represented] in that its sentence 1, 1997). (Pa.Super. August ignoring [sentencing] guide- a total Therein, problems we found two with the lines[,]” Harris, Slip Op., at and the court First, court’s we found that Harris, ignored mitigating Slip Op., factors. by imposing mandatory erred court mini- at 11. years however, mum sentence of five for crimes com- Presently, we find that the lower handgun, mitted with a when the Common- did court not commit the same errors when provisions sentencing appellant. wealth did not invoke the so modify I in motion to sentence. We did as would conclude proceeding, maimer presented has not claim the claim was included the Con- Appellant because Complained in a that would have been of Matters cise Statement petition. Appeal judge and the trial court the issues in his opportunity address explains, Appellant majority 3 As the opinion. guilty plea by represented counsel, represented and this same counsel holding Distinguishing Egan, sentencing hearing. him at the There was that the trial present we held in the matter no time of objection raised at the sentenc- real opportunity had no judge court post-sentence motion to ing, nor was in his opinion. address the issues Since modify sentence Trial counsel was filed. preserve properly had failed timely counsel who filed the notice and who was directed file the review, of his sentence for Complained Concise Statement of Matters Citing it waived. found Pa.R.A.P.1925(b). Appeal pursuant A,2d Tuladziecki, 513 Pa. statement, the of this trial Despite lack (1987), we ex- opinion filed its on March plained that there is no copy sent a counsel. of a sen- from the ¶ Court, 4 This in a Memorandum filed that, had the issue been tence. We stated 7, 1997, direct ap- October dismissed the have had to preserved, Appellant would Appellant’s peal. acknowledged We that any to in request permission appeal raised one issue: whether event. imposed was excessive and the sentence an because represented dismissing abuse of discretion Appellant’s 7 Our Order mitigating court failed to consider cir- the on 1997. peal was sent to him October provide to adequate cumstances and failed until, nothing July on He did imposing on the record for sen- reasons filed a Petition Appellant’s present counsel range of the aggravated the tence outside In Appeal Nunc Pro Tunc. for Leave to recognized this sentencing guidelines. We that petition, Appellant alleged he the challenge as a to the prior to take all instructed his counsel of Appellant’s sentence. necessary steps to his sentence. he his asserted that was denied Appellant dismissing appeal, we relied 5 In the right guaranteed by Arti- “appeal as of The following on three cases. first the V., 9 of the Pennsylvania cle Section State Jarvis, 444 v. Pa.Su was Commonwealth to due to due counsel’s [sic] Constitution (1995), per. A.2d 790 in which we being to after preserve said failure may appellant challenge that an not held ” Fur- Petition directed to do so.... discretionary aspects of her sentence the ther, that Appellant alleged the appeal. on The second for the first time to amounted Clinton, prior his counsel’s actions 453 Pa .Su was Commonwealth ac- of counsel. The (1996), ineffective assistance A.2d in which we per. the failing preserve were alleged tions challenging discre held a claim discretionary aspects of challenge if is waived tionary aspects sentencing in post- hearing sentence at the and raise the claim be appellant does not motion, to file a Con- failing post-sentence court in either fore the trial Complained of of Matters proceeding. cise Statement or at the motions permis- Appellant requested Appeal. v. on Finally, on Commonwealth we relied pro to file a nunc tunc A.2d 237 sion Egan, 451 (1996). alleged of his counsel’s ineffective In claim basis Egan, we addressed “con- properly preserving his of sen assistance regarding an right” stitutional claim not raised tencing, although the was ¶ The Commonwealth filed su«..wei' sentence based an assertion of inef- upon argued which it the underlying failing pre- fectiveness claim assistance of ineffective lacked merit serve the issue the direct properly articurn- Appellant did any majority, I appeal. Unlike the find that question Com» substantial o for this re- directly the decision control- Wolfe regard view with sentence. his The ling Appellant’s procedural posture apj trial court denied the for an -eal request present matter. pro nunc tunc. This appeal followed. matter, 12 In Wolfe, as in the instant ¶9 The issue that we should be appellant’s prior appellate counsel had addressing on appeal is whether the uial filed a timely direct behalf of court erred committed an abuse of dis appellant that did result in a decision in denying cretion Appellant’s request for in the receiving favor. After an tunc to this Court. I the decision of Court on would conclude that trial court did not the appellant sought to challenge the inef- err or abuse its discretion. order for failing fectiveness of prior counsel for granted, be preserve any the discre- would have to show extraor tionary aspects sentencing. Specifically, dinary ap circumstance wherein the following raised con- peal by was lost. First, cerns. whether coun- (1996). Stock, Pa. failing sel ineffective for to raise the argument premised on the of his trial counsel issue ineffectiveness he had a assertion preserve failing to raise exces- discretionary aspects of his sentence. He Secondly, the same siveness Tuladziecki, 522 A.2d at did not. See layered as to ineffectiveness the failure and 42 Pa.C.S.A. 9781.11 the trial to indicate on the judge record ¶ circumstance, of interpretation the court’s the present In the where 10 an appeal to the same Appellant guidelines. Thirdly, layered has no to in- discretionary aspects the of his effectiveness as to the failure of the trial judge he not shown extraordi- to sentence and state sufficient reasons on the circumstances, with nary agree why I the trial record the sentence exceeded the grant court’s decision not to an appeal guidelines. Wolfe, A.2d 580 at 858. addition, Appellant tunc. If believed the petitioner his contended that his ineffective, counsel was he should appellate have counsel failing was ineffective in promptly set forth present his ineffectiveness is- to mitigating evidence at sentenc- a timely sues in PCRA petition. ing. Id. ¶ ¶ At 11 the time when Appellant re 13 This Court in held that the Wolfe our disposition

ceived of his direct appeal, PCRA, claims petitioner of a under the however, this in Court’s decision Commo prior that both appellate trial counsel Wolfe, 398 Pa.Super. nwealth 580 A.2d had been failing ineffective in to challenge (1990), in place sentence, had been discretionary aspects almost the of his years. prevents seven That case a chai under cognizable were not the PCRA. We the lenge discretionary aspects to of hid that the petitioner’s found claims failed to provides pertinent pari: 11. section jurisdiction appeals. This in has initial for such Al- (a) may Right granted lowance be appeal. to of defendant or the —The may appeal appellate Commonwealth as of discretion of the it where legality of the sentence. appears a question that there is substantial (b) Allowance of defendant or imposed that the appropri- —The petition may file ate chapter. under this allowance of felony aspects of a or a sentence for § Pa.C.S.A. 9781. to the court that misdemeanor truth-determining pro- requirement meet the PCRA that undermined guilt adjudication., reliable no cess, counsel’s “so ineffectiveness undermined place.” could the truth taken reli- have determining process that no or innocence adjudication 9543(a)(2)(ii). guilt able This or innocence Pa.C.S.A. Lantzy could have place.” taken the appellant reasoned 9543(a)(2)(ii). failing This Court held: failed satisfy his burden ie., innocent, wrong- appellant’s instant claim relates that he was [A]s show however, noted, failing ineffective assistance We fully'-convicted. challenge discretionary aspects of sen- his wished to assert if the tence, assis- and because no ineffective him deprived counsel’s ineffectiveness may be heard tance of counsel claims prejudice him appeal, causing unless such claim under PCRA underlying verdict affecting the but not determining truth undermine the would relief he seek adjudication, or could render process so as to unreliable tunc. requesting innocence, adjudication guilt appel- Stock, (citing A.2d at su Lantzy, 712 lant’s claim is not herein reviewable. pra). Wolfe, (emphasis origi- 580 A.2d at Lantzy 17 This Court’s decision

nal). filed filed April Appellant his Thus, pursuant holding to the Nunc Pro Appeal for Leave Petition Wolfe, Appellant in present case did to chal- July Tunc on in order have a claim that was lenge prior effectiveness in counsel’s PCRA, and he did not file a PCRA preserve any failing our review chal- This petition. Court’s decision in Com lenges of his Lantzy, monwealth did sentence. He not make reference had no (Pa.Super.1998), impact on an indi Rather, decision. in such procedural posture. vidual in his brief did not states that he file appellant, In Lantzy, who was petition PCRA because the law state entry following guilty sentenced of a Thus, precluded have would PCRA relief. originally post-sentencing filed plea, had he claims that to this His motions and Court. been futile act. would have then a modified sen- negotiated Brief at 16-17. the appellant post- tence and withdrew his However, appeal. motions and ¶ I do not find majority, the 18 Unlike apart, appel- when the modification fell the petition of a for Appellant’s that could not file a direct because lant pro tunc, rather than leave to post-sentence mo- his withdrawal of his of PCRA, clearly the was a petition under petition He then filed a appeal. tions Further, Lantzy. in decision result of our that counsel asserting PCRA his the under majority’s with the conclusion I disagree him to advising in withdraw ineffective was of Court’s impact Supreme that the the appeal. motions and post-sentence in holding that reversed our Lant decision him This court denied relief. The PCRA 558 Pa. Lantzy, zy, Commonwealth on affirmed the court’s order Court (1999), Appel is to convert 736 A.2d 564 a different basis. an petition lant’s ¶ the PCRA. I appel- that the into claim under Lantzy, cognizable 16 In we held agree majority’s under do with the conclusion lant could not establish claim 9543(a)(2)(ii) in Supreme the That that Court’s decision Lant- of PCRA. the section challenge to zy Appellant’s the the petitioner brings that the must provides section “[ijneffec- sentencing discretionary aspects proper of that from establish he suffered fact, which, as is ly Op. in the us. See at 7. before tive assistance of counsel case, Supreme the majority, so the particular observed circumstances of the majority Court indicated that it was dice the finds that al- Appellant Lantzy leges unclear whether the appellant prior effectively is that counsel sought discretionary had of his Appellant’s “right” waived an appeal of aspects his sentence or whether he also challenging discretionary the aspects of his sought challenge conviction. But, I again, point out that Lantzy, Thus, I wary at 566. am Appellant right. does not have such a concluding on of of the basis this sentence Therefore, reasoning I believe that the Lantzy Opinion, Supreme the Court’s majority the solid. alone, standing Supreme that the Court case, 22 As I view the any way made a decision overrule faced where he had a with a situation this Court’s decision in Wolfe. alleged but his counsel’s inef- Supreme 19 The stated that Court fectiveness caused the issue of the discre- 9543(a)(2)(ii), requirement section tionary of his aspects sentence to be for- petitioner plead prove must that gone appeal. would brought He have his counsel’s ineffectiveness “so under- question of his counsel’s ineffectiveness mined truth-determining process that before the trial court but realized adjudication guilt no reliable or inno- long-established law provides case that a cence could have place”, taken amounts to PCRA petitioner attempting challenge prejudice prong for ineffectiveness of his counsel failing ineffectiveness of counsel. Lantzy, 736 A.2d at 570. The preserve discretionary aspects unjusti- Court that an Supreme reasoned does not raise a perfect failure of fied counsel to So, instead, claim. after this Court issued guaranteed preju- constitutes Lantzy, its decision in new counsel per se. Lantzy, 736 A.2d at 571. In dice Appellant filed a for leave circumstance, that, held if peal nunc tunc to challenge prior in Lant- petitioner such as the counsel’s ineffectiveness. zy remaining could also meet the require- PCRA, ments did not he have to I 23 am not convinced majority establish his innocence or demonstrate the Opinion Appellant’s this decision merits of the issues that would have been new procedural counsel was a result of a raised on a appeal. Rather, trap of our it making. appeal's ¶ 20 In the instant appeal, Appellant did attempt- new guaranteed right not have a to challenge ing to end-run our case law regarding his sentence challenges discretionary aspects of sen- Thus, Court’s tencing on If we allow PCRA. this to occur in Lantzy regarding prejudice statement engage review se per does not that Appellant’s establish sentencing, per prior se here. counsel was ineffective case discarding prior are law without in Lantzy The Court’s decision proper briefing and consideration of the holding Wolfe, not alter did Court’s issue. Although majority doing is so supra, Appellant still would have to auspices rectifying a situation prejudice meet the prong of the ineffec- case, Lantzy I caused do not think tiveness standard order to show that he it is majority creating wise. The claim under the PCRA. exception person Appellant’s for one that, 21 He would have to but for the time procedural posture show of our counsel, the acts or prior fully omissions of his decision considering without it proceedings larger the outcome of the would be issue of whether desirable Kimball, different. effectively prior overrule our case law (1999). Pa. Appel- regarding challenges lant preju- has failed to do here. The PCRA. so join I cannot the ma- Accordingly,

jority’s appeal raising decision to allow join majority’s Nor I in the can judgment to affirm

decision of sen- I simply

tence. would affirm the order of denying

the trial court Petition for to File Nunc Tunc. Appeal

Leave Pro CAMPO, of the Estate

Joan Executrix Campo, Appellee,

of Tarcisco and David

ST. LUKE’S HOSPITAL

Schwendeman, M.D.

Appeal Hospital. Luke’s St. Pennsylvania.

Superior Court of 23, 2000.

Argued Feb. 24, 2000. May

Filed

Reargument July Denied

Case Details

Case Name: Commonwealth v. Hernandez

Court Name: Superior Court of Pennsylvania

Date Published: May 22, 2000

Citation: 755 A.2d 1

Court Abbreviation: Pa. Super. Ct.