J-S65035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DENNIS JOHN VELEZ,

Appellant No. 799 EDA 2014

Appeal from the PCRA Order January 31, 2014

in the Court of Common Pleas of Lehigh County

Criminal Division at No.: CP-39-CR-0004257-2010

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED FEBRUARY 24, 2015

Appellant, Dennis John Velez, purports to appeal nunc pro tunc from 

the judgment of sentence imposed following entry of a negotiated guilty plea 

to third-degree murder and conspiracy to commit robbery.1 Appellant 

challenges the discretionary aspects of his sentence, contending that the 

trial court imposed the statutory maximum sentence because of its bias or ill 

will against him. We are constrained to conclude that the PCRA court erred 

in reinstating Appellant’s right to file a post-sentence motion nunc pro tunc. 

We therefore vacate the January 31, 2014 order reinstating this right and 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(c) and 903(c), respectively. 
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remand to the PCRA court for proceedings consistent with this 

memorandum. 

A previous panel of this Court set forth the factual history of this case 

as follows:

Appellant and Christian Bueno set out in the early morning 

hours of September 8, 2007 intending to find a victim to rob. A 

third person, Amarilys Soto drove their vehicle. The pair came 

upon Debra Robertson who was asleep in her van which was 

parked in the parking lot of Diamondz nightclub in Bethlehem. 

During the course of the robbery, Bueno shot and killed 

Robertson. Ultimately, when [A]ppellant became a suspect, he 

cooperated with police, and helped in the prosecution of Bueno. 

Soto was not charged. 

(Commonwealth v. Velez, No. 3104 EDA 2011, unpublished memorandum 

at *1 (Pa. Super. filed Sept. 17, 2012)).

On September 15, 2011, Appellant pleaded guilty to the above-stated 

offenses. The only condition of Appellant’s open plea agreement was that 

the trial court would run the sentences it imposed concurrently. In 

exchange for the plea, Appellant agreed to testify truthfully at Bueno’s trial. 

On October 21, 2011, the trial court sentenced Appellant to an aggregate 

term of not less than twenty nor more than forty years’ incarceration.2 On 

October 31, 2011, Appellant filed a timely post-sentence motion seeking 

reconsideration of his sentence, claiming that it was excessive in light of his 

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2 Specifically, the trial court sentenced Appellant to a term of not less than 

twenty nor more than forty years’ incarceration for third-degree murder, and 

a term of not less than five nor more than ten years’ incarceration for 

conspiracy to commit robbery, to run concurrently. (See N.T. Sentencing 

Hearing, 10/21/11, at 27-28). 
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cooperation with police. The trial court denied the post-sentence motion on 

November 2, 2011. 

On November 15, 2011, Appellant filed a timely direct appeal raising 

two issues challenging the discretionary aspects of his sentence.3 

Specifically, he alleged that his sentence was the result of trial court bias, 

and that his sentence was excessive considering his cooperation with police. 

(See Velez, supra at *4). On September 17, 2012, this Court affirmed 

Appellant’s judgment of sentence, concluding that he waived the issue of 

trial court bias by failing to raise it at sentencing or in his post-sentence 

motion, and that the issue challenging his sentence as excessive in light of 

his cooperation with police failed to raise a substantial question. (See id. at 

*4). Appellant did not file a petition for allowance of appeal with our 

Supreme Court.

On September 13, 2013, Appellant filed a timely pro se petition 

pursuant to the Post Conviction Relief Act (PCRA).4 The PCRA court 

appointed counsel who filed an amended petition on October 16, 2013. In 

the petition, Appellant asserted that his plea was not knowing, intelligent, or 

voluntary. (See Amended PCRA Petition, 10/16/14, at unnumbered page 

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3 Although Appellant purported to present three issues, this Court 

determined that two of the claims (the first and the third) raised identical 

challenges alleging that the sentencing court was biased. (See Velez, 

supra at *2, *4).

4 See 42 Pa.C.S.A. §§ 9541-9546.
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1). Appellant also claimed that trial counsel was ineffective inter alia for 

failing to preserve the issue of trial court bias in imposing the sentence, 

resulting in waiver of that issue on direct appeal. (See id. at unnumbered 

page 2). Appellant requested that the court grant him the right to withdraw 

his guilty plea, or alternatively, grant him permission to file a post-sentence 

motion nunc pro tunc to raise the issue of trial court bias at sentencing. 

(See id.). 

On January 29, 2014, the PCRA court held a hearing on the amended 

PCRA petition, at which it heard no argument or testimony regarding 

Appellant’s PCRA claims. Instead, the Commonwealth agreed with 

Appellant’s counsel to ask the court to allow Appellant to file a post-sentence 

motion to reconsider sentence nunc pro tunc, in exchange for Appellant’s 

agreement to withdraw his remaining PCRA claims. (See N.T. PCRA 

Hearing, 1/29/14, at 2-3). The PCRA court agreed. On January 31, 2014, 

pursuant to the agreement of counsel, as expressly agreed to by Appellant, 

the PCRA court entered an order directing Appellant to file a post-sentence 

motion nunc pro tunc within ten days of January 29th, and confirming his 

withdrawal of all other PCRA issues. (See Order, 1/31/14).

On February 4, 2014, Appellant filed a timely post-sentence motion 

nunc pro tunc, which the trial court denied by order entered February 18, 

2014. In a footnote to the February 18th order, the court concluded that 

Appellant’s claim that it was biased or possessed ill will towards him at 

sentencing is “baseless.” (Order, 2/18/14, at 1 n.1). On March 6, 2014, 
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Appellant filed his notice of appeal, purporting to appeal from the trial 

court’s February 18, 2014 order denying his nunc pro tunc post-sentence 

motion.5 The trial court directed Appellant to file a concise statement of 

errors complained of on appeal and he timely complied on March 27, 2014. 

See Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on March 31, 

2014, in which it relied on and incorporated its February 18, 2014 order. 

See Pa.R.A.P. 1925(a).6 

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5 Although Appellant purports to appeal from the court’s order denying his 

post-sentence motion, “a direct appeal in a criminal case can only lie from 

the judgment of sentence.” Commonwealth v. Lawrence, 99 A.3d 116, 

117 n.1 (Pa. Super. 2014) (citation omitted) (noting that appeal from order 

denying post-sentence motion is improper). 

6 We note that the PCRA court’s January 31, 2014 order reinstating 

Appellant’s right to file a post-sentence motion nunc pro tunc did not 

expressly grant him the right to file a direct appeal nunc pro tunc after the 

court disposed of his post-sentence motion. However, 

the term nunc pro tunc means “now for then.” See Black’s Law 

Dictionary, at 1069, (Sixth Edition 1990). It is “a phrase applied 

to acts allowed to be done after the time when they should be 

done, with a retroactive effect, i.e., with the same effect as if 

regularly done.” Id. Thus, reinstatement of [post-sentence] 

rights nunc pro tunc denotes that the appellant now has the 

same . . . rights as he would have had in the beginning. 

Commonwealth v. Wright, 846 A.2d 730, 735 (Pa. Super. 2004). 

“[W]hen the trial court grants a request to file a post-sentence motion 

nunc pro tunc, the post-sentence motion filed as a result must be treated as 

though it were filed within the 10-day period following the imposition of 

sentence.” Commonwealth v. Dreves, 839 A.2d 1122, 1129 (Pa. Super. 

2003) (en banc). Therefore, in the instant case, if this were a proper direct 

appeal, Appellant had thirty days within which to file a direct appeal 

(Footnote Continued Next Page)
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Appellant raises the following issue for our review:

A. Did the trial court err in denying [Appellant’s] motion to 

modify sentence for the following reasons:

1. The presentence investigation recommendation 

was for 18 to 40 years in a SCI which the 

Commonwealth was in agreement with.

2. It appeared that the court was willing to follow 

the recommendations of the presentence 

investigation and the Commonwealth until 

[Appellant] raised the issue of why an unindicted coconspirator had not been charged, at which point the 

court appeared to become annoyed.

3. [Appellant] is alleging that the court imposed 

the statutory maximum because of bias or ill-will as 

a result of his statements regarding the unindicted 

co-conspirator. 

(Appellant’s Brief, at 4) (most capitalization omitted). 

Before we may reach the merits of Appellant’s issue, we must address 

whether this appeal is properly before us. Specifically, we must determine 

whether the PCRA court properly reinstated Appellant’s right to file a postsentence motion nunc pro tunc. See Commonwealth v. Grosella, 902 

A.2d 1290, 1293 (Pa. Super. 2006) (addressing as preliminary matter 

whether appellant’s purported nunc pro tunc direct appeal was properly 

before Court where he previously filed direct appeal in which we affirmed 

judgment of sentence). 

(Footnote Continued) _______________________

following entry of the court’s order denying his nunc pro tunc post-sentence 

motion. See Pa.R.Crim.P. 720(A)(2)(a). 
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“When reviewing an order [granting or] denying PCRA relief, we must 

determine whether the PCRA court’s determination is supported by the 

record and is free from legal error.” Commonwealth v. Poplawski, 852 

A.2d 323, 327 (Pa. Super. 2004) (citation omitted).

To be eligible for relief under the PCRA on grounds of ineffective 

assistance of counsel, a petitioner must plead and prove by a preponderance 

of the evidence that the conviction or sentence resulted from “[i]neffective 

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.” 42 Pa.C.S.A. § 9543(a)(2)(ii). 

It is well-settled that an accused who is deprived entirely

of his right of direct appeal by counsel’s failure to perfect an 

appeal is per se without the effective assistance of counsel, and 

is entitled to reinstatement of his direct appellate rights. In 

those extreme circumstances, where counsel has effectively 

abandoned his or her client and cannot possibly be acting in the 

client’s best interests, our Supreme Court has held that the risk 

should fall on counsel, and not his client.

However, it is also well-settled that the reinstatement of 

direct appeal rights is not the proper remedy when appellate 

counsel perfected a direct appeal but simply failed to raise 

certain claims. Where a petitioner was not entirely denied 

his right to a direct appeal and only some of the issues the 

petitioner wished to pursue were waived, the 

reinstatement of the petitioner’s direct appeal rights is 

not a proper remedy. In such circumstances, the 

appellant must proceed under the auspices of the PCRA, 

and the PCRA court should apply the traditional three-
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prong test for determining whether appellate counsel was 

ineffective.[7]

Commonwealth v. Mikell, 968 A.2d 779, 781-82 (Pa. Super. 2009), 

appeal denied, 985 A.2d 971 (Pa. 2009) (citations and internal quotation 

marks omitted) (first emphasis in original; second emphasis added) 

(concluding that appellant not entitled to reinstatement of direct appeal 

rights nunc pro tunc where this Court deemed his issues on direct appeal 

waived, but he was not entirely deprived of an appeal).

Here, at the hearing, the PCRA court agreed to reinstate Appellant’s 

right to file a post-sentence motion nunc pro tunc and, in effect, his right to 

file a direct appeal, without hearing any evidence, in particular on 

Appellant’s substantive PCRA claim that trial counsel was ineffective for 

failing to preserve his issue alleging trial court bias at sentencing. (See N.T. 

PCRA Hearing, 1/29/14, at 2-3). The PCRA court simply accepted the 

agreement reached by the parties without attempting to apply the threepronged ineffective assistance of counsel test. (See id.); see also Mikell, 

supra at 782; Grosella, supra at 1294 n.7. Further, despite the court’s 

grant of PCRA relief in its order reinstating Appellant’s right to file a postsentence motion, it stated its finding that the underlying issue Appellant 

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“The three-prong [ineffective assistance of counsel] test requires an 

appellant to establish[:] 1) the underlying claim is of arguable merit; 2) 

counsel had no reasonable basis for the act or omission in question; and 3) 

but for counsel’s act or omission, the outcome of the proceedings would 

have been different.” Grosella, supra at 1294 n.7 (citation omitted).
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wished to raise on direct appeal alleging trial court bias at sentencing was 

“baseless,” indicating its belief that counsel was not ineffective for failing to 

preserve this claim for direct appeal. (Order, 2/18/14, at 1 n.1); see also 

Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007), appeal 

denied, 951 A.2d 1163 (Pa. 2008) (“Counsel cannot be found ineffective for 

failing to pursue a baseless or meritless claim”) (citation omitted). 

Under these circumstances, we conclude that the PCRA court erred in 

reinstating Appellant’s right to file a post-sentence motion nunc pro tunc. As 

discussed above, “[w]here a petitioner was not entirely denied his right to a 

direct appeal and only some of the issues the petitioner wished to pursue 

were waived, the reinstatement of the petitioner’s direct appeal rights is not 

a proper remedy.” Mikell, supra at 781 (emphasis in original; citations 

omitted). “In such circumstances, the appellant must proceed under the 

auspices of the PCRA, and the PCRA court should apply the traditional threeprong test for determining whether appellate counsel was ineffective.” Id. 

at 782 (citation omitted). 

This is not a case where counsel abandoned Appellant, such that he 

was denied his right to file a post-sentence motion or direct appeal entirely. 

To the contrary, Appellant filed a timely post-sentence motion and a direct 

appeal, and this Court affirmed the judgment of sentence. Although counsel 

did not preserve all issues Appellant wished to raise on direct appeal, 

resulting in waiver of his claim asserting trial court bias, this is not a case 
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involving per se ineffectiveness. See id. at 781. Therefore, the PCRA court 

should have considered the merits of Appellant’s ineffective assistance of 

counsel claim applying the traditional three-pronged test before granting or 

denying PCRA relief. See id. at 782; see also Grosella, supra at 1294 

(determining that PCRA court erred in reinstating appellant’s direct appeal 

rights without applying three-pronged ineffectiveness test where counsel 

filed a direct appeal, but did not pursue all issues appellant wished to raise); 

see also 42 Pa.C.S.A. § 9543(a)(2)(ii) (petitioner must plead and prove 

ineffective assistance of counsel by preponderance of evidence to be eligible 

for relief). 

Accordingly, we are constrained to vacate the PCRA court’s January 

31, 2014 order and remand this matter to the court for proceedings 

consistent with this memorandum. Upon remand, the court should consider 

all of the cognizable claims raised in Appellant’s amended PCRA petition. 

Order vacated. Case remanded with instructions. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/24/2015
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