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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 1)

    Criminal defendants convicted of a crime after a criminal trial in Philadelphia have a right to appeal their case. Defendants convicted of gun charges, drug charges or murder charges in Philadelphia may file direct appeals to the Superior Court of Pennsylvania or the Third Circuit Court of Appeals. If the defendant was convicted in state court, he would file his direct appeal to the Superior Court of Pennsylvania, and if the defendant was convicted in PA federal court, he would file his direct appeal to the Third Circuit Court of Appeals.

    Defendants have to file their notice of direct appeal within 30 days of the entry of the order, i.e., when the defendant is convicted of a crime.

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

    Another type of appeal defendants may file is a Pennsylvania Post Conviction Relief Act (PCRA) petition. This is entirely different from a direct appeal.

    A PCRA petition can only be filed within one year from the date the judgment becomes final, such as one year from the date of sentencing or one year from the date of the final decision of the defendant’s direct appeal. Therefore, if a defendant does not succeed in a direct appeal, he may file a PCRA petition within one year of that decision.

    A defendant does not have to file a direct appeal in order to file a PCRA petition. In fact, a PCRA petition may be filed on the grounds that the trial counsel failed to file a direct appeal. The defendant is essentially saying trial counsel was ineffective when he failed to protect his rights by filing a direct appeal. This type of PCRA issue is called an ineffective assistance of counsel (IAC) claim.

    Ineffective assistance of counsel is defined by the Post Conviction Relief Act as the following:

    Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

    In general, for a court to grant a defendant’s PCRA petition based on ineffective assistance of counsel, the defendant must meet a three-prong test:

    1. the claim of ineffectiveness of counsel has arguable merit;
    2. defense counsel’s act was not reasonably designed to advance the interest of the defendant; and
    3. the defendant was prejudiced by the defense counsel’s actions, i.e., but for his counsel’s actions, the result of the trial would have been different.

    Related: PA Post Conviction Relief Act Petition – How to Prove Ineffective Assistance of Counsel Claims

    If a defendant alleges that his counsel was ineffective due to his inexperience, failure to call a crucial witness, etc., he needs to meet the three prong test.

    However, the defendant does not have to meet this three-prong test if he alleges that his lawyer failed to protect his rights by failing to file a direct appeal.

    Click here to part 2 of the article which discusses the standard governing ineffective assistance of counsel by failing to file a direct appeal.

    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"

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