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    PA Post Conviction Relief Act Petition – Can You File a PCRA Petition for Counsel’s Failure to File a Direct Appeal? (Part 2)

    When defendants file a Post Conviction Relief Act (PCRA) petition based on ineffective assistance of counsel, they have to meet a three-prong test, as part 1 of this article discussed. There is however, a specific ineffective assistance of counsel claim that does not require the defendant to meet the three-prong test for the court to grant the PCRA petition, and that is when trial counsel failed to protect the defendant’s rights by failing to file a direct appeal requested by the defendant.

    Related: PA Criminal Appeals Law, Filing a Direct Appeal After a Trial

    Per Se Ineffective of Assistance of Counsel

    The Pennsylvania Supreme Court in Commonwealth v. Lantzy held:

    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.

    In other words, a defendant is denied effective assistance of counsel guaranteed by the federal and state constitutions if trial counsel’s failure to file a direct appeal requested by the defendant is unjustified. This constitutes prejudice to the defendant pursuant to the PCRA. Moreover, if other requirements of the PCRA are met, the defendant does not have to establish his innocence or demonstrate the merits of the issues that would have been raised on direct appeal. This is also known as the per se ineffectiveness of assistance of counsel standard.

    In addition, the court would hold an evidentiary hearing to determine whether the defendant requested that counsel file a direct appeal. The defendant must plead and prove that his or her request to appeal was ignored or rejected by trial counsel. If the court concludes that the request was made and counsel failed to comply, the defendant’s appeal rights must be reinstated.

    More: Pennsylvania Post Conviction Relief Act (PCRA) Petition – Ineffective Assistance of Counsel (IAC) During Plea Bargaining

    Pennsylvania Criminal Lawyer (PCRA and Direct Appeals) – FREE Consultations

    Our criminal defense lawyers have extensive experience handling direct appeals and PCRA petitions after a criminal defendant is convicted of a crime in Philadelphia. It is important to have an experienced criminal trial lawyer who has actual trial experience to be able to identify legal errors at trial and sentencing when filing an appeal or a PCRA petition.

    Our lawyers have over 40 years of combined trial experience. Call (215) 564-0644 for a free consultation.

    Disclaimer: This website does not create any attorney-client relationship or provide legal advice. Our lawyers provide legal advice only after accepting a case. It is imperative that any action taken is done on advice of counsel. Since each case is unique, discussion of prior outcomes and settlements in past cases is no guarantee of a similar outcome in current or future cases. Contacting our lawyers via the email contact form on this website does not create an attorney-client relationship. Confidential or time-sensitive information should not be sent through the contact form.

    David S. Nenner

    "Top Rated Criminal Defense Lawyer"
    (2015-2022)

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