J-S74032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MANUEL FIGUEROA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2978 EDA 2015

Appeal from the Judgment of Sentence April 22, 2013

In the Court of Common Pleas of Lehigh County 

Criminal Division at No(s): CP-39-CR-0005268-2011

BEFORE: OTT, RANSOM, JJ., STEVENS, P.J.E.

CONCURRING STATEMENT BY OTT, J.: FILED NOVEMBER 17, 2016

While I agree with the Majority’s conclusion that the PCRA court had 

no jurisdiction to grant Figueroa nunc pro tunc relief in this matter, I write 

separately because I am particularly troubled by the failures of both counsel 

and the trial court to protect Figueroa’s appellate rights.

First, although I recognize trial counsel was retained only for purposes 

of trial or a guilty plea, and had no obligation to file either post-sentence 

motions or a direct appeal on Figueroa’s behalf, where, as here, Figueroa 

expressed his desire to appeal his sentence, the better practice would have 

been to file a timely notice of appeal in order to preserve his client’s 

appellate rights, and then petition to withdraw as counsel. In the present 

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Former Justice specially assigned to the Superior Court.
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case, counsel was still of record, and had not yet filed a petition to withdraw, 

at the time Figueroa’s direct appeal period expired. 

Second, the trial court could have considered either of Figueroa’s two 

untimely-filed, pro se notices of appeals (filed June 12, 2013 and June 24, 

2013) to be a timely PCRA petition. Indeed, the trial court had already 

entered an order on June 4, 2013, informing Figueroa that the time for filing 

a direct appeal had expired. Nevertheless, those untimely direct appeals 

proceeded to this Court.

Third, even accepting that Figueroa’s judgment of sentence became 

final on June 3, 2013, (30 days after the trial court denied his untimely postsentence motion), newly appointed counsel - the Lehigh County Public 

Defender’s Office - still could have filed a timely PCRA petition. Indeed, 

counsel was appointed sometime before December of 2013. Although 

Figueroa subsequently requested to proceed pro se, he withdrew that 

request following a Grazier hearing in February of 2014. The time period 

for filing a PCRA petition did not expire until June 3, 2014. The record 

provides no explanation why counsel failed to take any steps in the ensuing 

four months to preserve Figueroa’s collateral appeal rights.1

I recognize the PCRA court attempted to correct the inequities in this 

case by reinstating Figueroa’s post-sentence and direct appeal rights. 

However, unfortunately, I agree with the Majority that the court had no 

jurisdiction to do so. Moreover, while I find the procedural defects in this 

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1 Counsel should have been well aware that Figueroa’s June 2013 pro se

notice of appeal was untimely filed.
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case implicate the PCRA’s timeliness exception for newly discovered facts, 

i.e., based upon counsel’s apparent abandonment,2it is doubtful Figueroa 

can meet the 60-day requirement for raising such a claim. 

Accordingly, I concur with the Majority’s conclusion that we must 

quash this appeal.

President Judge Emeritus Stevens joins this concurring statement.

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2 See Commonwealth v. Bennett, 930 A.2d 1264, 1274-1275 (Pa. 2007) 

(counsel’s abandonment of defendant, by failing to file an appellate brief, 

constitutes newly discovered fact which might excuse untimeliness of PCRA 

petition if defendant can demonstrate he could not have uncovered the fact 

with the exercise of due diligence).