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Commonwealth v. Touw

Denial of petition for post conviction collateral relief vacated and case remanded to determine whether counsel consulted with defendant regarding an appeal and, if he failed to do so, whether defendant was prejudiced by such failure.

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� 1 This is an appeal from the order denying Appellant’s petition for post- conviction collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. sections 9541-46. For the reasons that follow, we vacate the order and remand the case for further proceedings.

� 2 On July 28, 1998, an information was filed charging Appellant with sixteen counts of delivery of a controlled substance (cocaine) and one count of criminal conspiracy to deliver a controlled substance (cocaine). *fn1 On September 17, 1998, Appellant pled guilty to four counts of delivery pursuant to a plea agreement with the Commonwealth. *fn2 The trial court sentenced him on November 3, 1998, to pay fines totaling $5,000.00 and to undergo imprisonment for a total of six and one-half to thirteen years. No post-sentence motions were filed on Appellant’s behalf, and no appeal was taken.

� 3 On October 15, 1999, new counsel filed a PCRA petition on Appellant’s behalf. The petition alleged numerous instances of ineffectiveness of trial counsel, including failure to consult with Appellant regarding the propriety of an appeal. The petition requested that Appellant’s appellate rights be reinstated nunc pro tunc or that a new trial be granted. On March 10, 2000, the PCRA court conducted a hearing at which four witnesses, including Appellant and plea counsel, testified. At the hearing, Appellant’s counsel stated, “Judge[,] we’re only here today to determine whether my client’s appellant [sic] rights should be reinstated. The merits, the underlining [sic] merits, of those claims that he would otherwise raise on appeal in my view are not before the Court today.” N.T., 3/10/00, at 3. On April 5, 2000, the PCRA court entered an opinion and order denying Appellant’s petition. The court considered only the issue of counsel’s alleged ineffectiveness in not pursuing an appeal, as that was the only issue preserved at the hearing. This timely appeal followed.

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