J-S70014-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ANTONIO DE JESUS ORTIZ-SERRANO,

Appellee No. 458 EDA 2015

Appeal from the PCRA Order February 4, 2015

in the Court of Common Pleas of Chester County

Criminal Division at No.: CP-15-CR-0003601-2013

BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED DECEMBER 18, 2015

The Commonwealth of Pennsylvania appeals from the PCRA court’s 

February 4, 2015 order granting the pro se petition of Appellee, Antonio De 

Jesus Ortiz-Serrano, and reinstating his right to file a post-sentence motion 

or direct appeal nunc pro tunc. Specifically, the Commonwealth argues that 

the PCRA court erred because it did not follow the applicable law, 

procedures, and rules set forth in the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546, and the Pennsylvania Rules of Criminal Procedure. 

The PCRA court concedes that it erred. We vacate and remand.

The PCRA court aptly summarized the factual and procedural history of 

this case as follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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On March 21, 2014, [Appellee] pled guilty to homicide by 

vehicle while driving under the influence and accidents involving 

death or personal injury while not properly licensed. He was 

sentenced to five (5) to ten (10) years[’] incarceration in 

accordance with the plea agreement.

On January 30, 2015, [Appellee] filed a Petition for Post 

Conviction Relief/Collateral Act (Petition for Reinstatement of 

Right to File Post Sentence Motion or Direct Appeal Rights, Nunc 

Pro Tunc). On February [4], 2015, the court granted [Appellee] 

the right to file a post-sentence motion or notice of appeal. . . . 

(PCRA Court Opinion, 7/02/15, at 1) (some capitalization omitted). This 

timely appeal followed.1

The Commonwealth raises the following question for our review:

I. Whether the [PCRA] court erred in granting [Appellee’s] PCRA 

petition by reinstating the right to file a post-sentence motion 

and direct appeal nunc pro tunc where [Appellee] pled guilty and 

received an agreed upon sentence?

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

In its issue, the Commonwealth claims that the court erred in granting 

Appellee’s petition without complying with the requirements of the PCRA. 

(See Commonwealth’s Brief, at 9-11). The Commonwealth argues that the 

PCRA court’s failure to do so resulted in its being denied an opportunity to 

respond to the PCRA petition, or fulfill its responsibilities pursuant to the 

Crime Victims Act, 18 P.S. §§ 11.101-11.5102. (See Commonwealth’s Brief

at 9). Moreover, it argues that “[t]rial counsel did not have the opportunity 

____________________________________________

1 On March 10, 2015, pursuant to the court’s order, the Commonwealth filed 

its statement of matters complained of on appeal. See Pa.R.A.P. 1925(b). 

The court filed its opinion on July 2, 2015. See Pa.R.A.P. 1925(a).
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to respond to the attack on her professional competence[,]” and “[Appellant] 

was denied the right to have counsel appointed to investigate his claims, file 

an [a]mended PCRA petition if necessary to preserve [his] claims, and 

develop a factual record if necessary to resolve [his] claims.” (Id. at 9-10). 

In its 1925(a) opinion, the PCRA court agrees that 

[t]he court viewed [Appellee’s] filing as a petition for 

reinstatement of right, nunc pro tunc, and not as a PCRA

petition. While the court had good intentions and was thinking 

of judicial economy when it entered its order, the court 

acknowledges that it was error to not treat [Appellee’s] filing as 

a PCRA petition. The court, therefore, respectfully requests that 

the Superior Court remand this matter back to the trial court so 

that [Appellee’s] petition can properly be decided under the 

[PCRA].

(PCRA Ct. Op., at 1-2) (citation and some capitalization omitted). We agree.

“Our standard of review in an appeal from the grant or denial of PCRA 

relief requires us to determine whether the ruling of the PCRA court is 

supported by the record and is free from legal error.” Commonwealth v. 

Lesko, 15 A.3d 345, 358 (Pa. 2011) (citation omitted). 

“[T]he PCRA provides the sole means for obtaining state collateral 

relief. Where, as here, a defendant’s post-conviction claims are cognizable 

under the PCRA, the common law and statutory remedies now subsumed by 

the PCRA are not separately available to the defendant.” Commonwealth 

v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (citations omitted). The PCRA, in 

pertinent part, provides that a petitioner is eligible for relief under the PCRA 

where “(2) [his] conviction or sentence resulted from one or more of the 
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following: . . . (ii) Ineffective assistance of counsel . . . .” 42 Pa.C.S.A. § 

9532(2)(ii).

In Hall, the Supreme Court of Pennsylvania considered whether a 

court’s grant of an appellee’s request for reinstatement of his direct appeal 

rights was an error of law. See Hall, supra at 1233-36. There the 

Supreme Court held that 

[a]ppellee . . . sought restoration of his direct appeal rights nunc 

pro tunc premised upon his trial counsel’s alleged 

ineffectiveness. Since such a claim is cognizable under the 

PCRA, . . . the trial court had no residual common law or 

statutory authority to entertain the claim except under the 

strictures of the PCRA. . . .

Id. at 1236. 

Here, similarly, Appellee filed a PCRA petition seeking reinstatement of 

his right to file a post-sentence motion or a direct appeal nunc pro tunc

because, he alleged, his trial counsel was ineffective in not filing his direct 

appeal. (See PCRA Ct. Op., at 1; see also Petition for Post[-]Conviction 

Relief/Collateral Act, 2/02/15, at unnumbered pages 1-2). Because such a 

claim is cognizable under the PCRA, the court was limited to reviewing 

Appellee’s petition in accordance with the laws, rules, and procedures 

required by the PCRA. See Hall, supra at 1236.

Accordingly, we are constrained to conclude that the PCRA court erred, 

as it has conceded, in granting Appellee’s petition. We vacate the PCRA 

court’s February 4, 2015 order granting reinstatement of Appellee’s direct 

appeal rights nunc pro tunc. We remand this matter to the PCRA court for 
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disposition in accordance with the PCRA, and in accordance with this 

decision.

Order vacated. Case remanded to the PCRA court for disposition in 

accordance with this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/18/2015