J. S59040/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

CURTIS A. WALK, :

:

Appellant : No. 686 WDA 2015

Appeal from the PCRA Order March 26, 2015

In the Court of Common Pleas of Blair County 

Criminal Division No(s).: CP-07-CR-0001175-2008

 CP-07-CR-0001313-2008

 CP-07-CR-0001314-2008

BEFORE: BOWES, DONOHUE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 15, 2015

Appellant, Curtis A. Walk, appeals from the order entered in the Blair 

County Court of Common Pleas denying his petitions filed pursuant to the 

Post Conviction Relief Act1(“PCRA”), following a hearing.2 Appellant 

contends both trial counsel were ineffective for failing to file direct appeals. 

PCRA counsel has filed a petition for leave to withdraw. We affirm and grant 

counsel’s petition. 

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546. 

2 We note the March 26, 2015 order denied the PCRA petitions and requests 

for new trials. The March 26th order appears on the docket as “Order 

Denying Motion for New trial.”
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The facts are unnecessary for our disposition. We adopt the 

procedural history of these cases as set forth by the PCRA court.3 PCRA Ct. 

Op., 3/24/15, at 1-2. At 1175-2008, following a jury trial, Appellant was 

convicted of involuntary deviate sexual intercourse,4indecent assault,5and 

corruption of minors.6 Following a jury trial, at 1313-2008 and 1314-2008, 

Appellant was found guilty of the manufacture, delivery, or possession with 

intent to manufacture or deliver, a controlled substance,7criminal use of 

communication facility,8and intentionally possessing a controlled substance 

by a person not registered under this act.9

 

3 The PCRA court continued the hearing scheduled for April 1, 2011 because 

Appellant was incarcerated in the Commonwealth of Virginia. At the hearing 

on November 9, 2011, Justin Ketchel, Esq., testified. Appellant was not 

present at the hearing. The Commonwealth stated to the court that 

Appellant “is apparently still incarcerated down in Virginia.” N.T., 11/9/11, 

at 1. At the conclusion of the hearing, the court stated: “Counsel, because 

one of the possible alternatives to me is to dismiss [Appellant’s] appellate 

rights, . . . I want him to be here. I don’t like doing things without him 

here.” Id. at 13. The court entered an order “directing this matter be 

rescheduled for further hearing.” Id. at 16. The second hearing was held 

on December 20, 2011.

4 18 Pa.C.S. § 3123(a)(7).

5 18 Pa.C.S. § 3126(a)(8).

6 18 Pa.C.S. § 6301(a)(1).

7 35 P.S. § 780-113(a)(30).

8 18 Pa.C.S. § 7512(a).

9 35 P.S. § 780-113(a)(16).
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The PCRA court denied Appellant’s PCRA petitions,10 finding that trial 

counsel, Attorney Ketchel at 1175-1108 and David Beyer, Esq. at 1313-

2008, were not ineffective for failing to file direct appeals. Order, 3/26/15. 

This timely appeal followed. Appellant filed court-ordered Pa.R.A.P. 1925(b) 

statements of errors complained of on appeal. 

Instantly, counsel filed a petition to withdraw pursuant to 

Turner/Finley11l. This Court has explained the procedure for counsel 

seeking to withdraw on collateral appeal as follows:

 

10 The PCRA court states that Appellant filed a PCRA Petition in 1175-2008 

on November 24, 2010, alleging that his trial counsel, Justin Ketchel, was 

ineffective for failing to file an appeal.” PCRA Ct. Op. at 1. The certified 

record does not contain the PCRA petition. However, on December 6, 2010, 

the PCRA court entered the following order:

[T]his court having received Petition regarding the [PCRA 

petition from Appellant], we deem the following order to 

be appropriate:

It is hereby ORDERED, DIRECTED and DECREED that 

Timothy Burns, Esquire is hereby appointed counsel to 

represent [Appellant] and shall have sixty (60) days to file 

any amended pleadings.” 

Order, 12/6/10. The PCRA entered an order consolidating the PCRA 

petitions at case number 1175-2008 and 1313-2008. Order, 2/10/11, at 1. 

Appointed counsel in case number 1175-2008 indicated that he did not need 

to file an amended PCRA petition. Id. On July 18, 2011, the court directed 

the court administrator to schedule a hearing on the consolidated cases to 

determine whether Appellant’s direct appeal rights should be reinstated. 

Order, 7/18/11.

11 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth 

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 
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Turner/Finley counsel must then submit a “no-merit” 

letter to the trial court, or brief on appeal to this Court, 

detailing the nature and extent of counsel’s diligent review 

of the case, listing the issues which the petitioner wants to 

have reviewed, explaining why and how those issues lack 

merit, and requesting permission to withdraw. 

Counsel must also send to the petitioner: (1) a copy of 

the “no-merit” letter/brief; (2) a copy of counsel’s petition 

to withdraw; and (3) a statement advising petitioner of the 

right to proceed pro se or by new counsel. 

If counsel fails to satisfy the foregoing technical 

prerequisites of Turner/Finley, the court will not reach 

the merits of the underlying claims but, rather, will merely 

deny counsel's request to withdraw. Upon doing so, the 

court will then take appropriate steps, such as directing 

counsel to file a proper Turner/Finley request or an 

advocate’s brief. 

However, where counsel submits a petition and nomerit letter that do satisfy the technical demands of 

Turner/Finley, the court—trial court or this Court—must 

then conduct its own review of the merits of the case. If 

the court agrees with counsel that the claims are without 

merit, the court will permit counsel to withdraw and deny 

relief. By contrast, if the claims appear to have merit, the 

court will deny counsel’s request and grant relief, or at 

least instruct counsel to file an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) 

(citations omitted). We find that Counsel’s submissions satisfy the technical 

demands of Turner/Finley, thus we conduct our own review of the merits of 

the case. See id.

Appellant contends trial counsel were ineffective for failing to file 

notices of appeal. He avers that he instructed both attorneys to file an 

appeal. Appellant’s Brief at 3. Appellant claimed that he sent letters to the 
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public defender’s office requesting that they file appeals on his behalf.12 Id.

at 4. He avers that the testimony of his sister, Ashley Stoi, that “she 

overheard Appellant instruct his attorneys to file appeals” supports his 

claim.13 Id.

 

12 At the PCRA hearing on December 20th, the court stated:

What I want to do, I want to note the presence of chief 

Public Defender Jim DiFrancesco in the courtroom. [T]he 

issue has become whether [Appellant] had notified 

representatives of your office of his intent to appeal. Both 

Justin Ketchel about a month ago and Dave Beyer today 

by phone did testify. They both testified that─Justin 

Ketchel said he never requested that. Dave Beyer said he 

did but much after the appeal deadline, much after the 

thirty days. [Appellant] is adamant and has produced his 

own copies of letters that he sent . . . that allegedly say 

that he did request that appeal. The scope of my review 

on this is pretty limited. If he made that request, then he 

gets those rights reinstated and if he didn’t then he simply 

doesn’t. What I had given Attorney [Timothy] Burns [, 

Appellant’s PCRA counsel] before you came into the 

courtroom, Jim, was an opportunity for another week to 

contact your office just to see if those letters are in the file 

or not. The mere fact that if they’re in your file, then I’m 

going to reinstate his appeal rights. If they are not in your 

file, then it’s going to be a matter of credibility. . . .

N.T., 12/20/11, at 24-25.

13 At the hearing on December 20, 2011, Ms. Stoi testified that, as to both 

cases, Appellant wrote to her, told her he wanted to take an appeal, and 

asked her to contact the Public Defender’s office. N.T., 12/20/11, at 30-31. 

When asked if she contacted the office, in both cases, she responded that 

she did not. Id. Ms. Stoi testified that she did not know who Mr. Ketchel 

was and was not familiar with the case in which he represented Appellant. 

Id. at 32. She was familiar with the drug charges. Id. at 33. She stated 

that she was aware that Appellant had another case, a rape case, in which 

he pleaded guilty, prior to the instant cases. Id. She knew that Mr. Beyer 
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Our review is governed by the following principles:

Our scope of review when examining a PCRA court’s 

denial of relief is limited to whether the court’s 

findings are supported by the record and the order is 

otherwise free of legal error. We will not disturb 

findings that are supported by the record. 

Furthermore, as Appellant’s issue is stated in terms of 

ineffectiveness of counsel, Appellant must show that: (1) 

his claim has arguable merit; (2) counsel’s performance 

had no reasonable basis; and (3) counsel’s action or 

inaction worked to Appellant’s prejudice. The PCRA 

standard regarding a claim of ineffective assistance of 

counsel is the same as the standard on direct appeal. 

 * * *

However, the case of a petitioner who was denied a 

requested direct appeal by the ineffectiveness of his trial 

or plea counsel presents a special problem of constitutional 

dimension. In Commonwealth v. Lantzy, [ ] 736 A.2d 

564 ([Pa.] 1999), our Supreme Court resolved this 

problem as follows:

[W]here 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, [denying] 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, 

and constitutes prejudice. . . . 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.

 

appealed the prior rape case. Id. at 34. See Commonwealth v. Walk, 

1714 WDA 2009 (unpublished memorandum) (Pa. Super. Aug. 24, 2010). 

In Walk, Appellant pleaded guilty to rape, aggravated indecent assault, 

indecent assault and corruption of a minor. Id. at *3. 
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Id. [ ], 736 A.2d at 572 (footnotes and citations omitted). 

Counsel’s unjustified failure to file a direct appeal will 

constitute prejudice per se under Lantzy, if the 

petitioner can establish that he did ask counsel to 

file an appeal. Commonwealth v. Harmon, 738 A.2d 

1023, 1024 (Pa. Super. 1999), appeal denied, 562 Pa. 

666, 753 A.2d 815 (2000).

Commonwealth v. Qualls, 785 A.2d 1007, 1009-10 (Pa. Super. 2001) 

(some citations omitted and emphases added).

After careful consideration of the parties’ briefs, our independent 

review of the record, and the decision of the Honorable Daniel J. Milliron, we 

affirm on the basis of the PCRA court’s decision. See PCRA Ct. Op. at 2-6 

(holding, inter alia, that (1) both Attorney Ketchel and Attorney Beyer 

credibly testified at the PCRA hearing that Appellant did not request a direct 

appeal to be filed; (2) neither counsel disregarded a request to file a direct 

appeal; and (3) no proof existed that Appellant’s handwritten letters 

requesting an appeal were sent to the Public Defender’s Office and ignored). 

Appellant’s claim that counsel were both ineffective for failing to file direct 

appeals is without merit. See Qualls, 785 A.2d at 1009-10. Accordingly, 

we conclude the PCRA court’s finding are supported by the record. See id.

Order affirmed. Counsel’s petition to withdraw granted.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/15/2015
J 

\ .. , 1( r. LI r\ 

,11 . ) 

1 

f\Jovember 15, 2010. This Court held a partial hearing on November 9, 2011 involving 

Attorney Timothy Burns was subsequently appointed as PCRA counsel on 

separately because the PCRA issues were identical. 

failing to file an appeal. The Court consolidated these two cases which were held 

November 24, 2010 alleging that his trial counsel, Justin J. Ketchel, was ineffective for 

failing to file an appeal. Defendant filed a PCRA Petition in CR 1175-2008 on 

on October 15, 2010 alleging that his trial counsel, David. L. Beyer, was ineffective for 

Defendant filed a Post-Conviction Relief Act ("PCRA") Petition in CR 1313-2008 

period of incarceration of 3-6V2 years. 

found guilty by a jury verdict on July 21, 2009. After the pre-sentence investigatio.n 

was completed, this Court sentenced Defendant on October 6, 2009 to an aggregate 

2009 to an aggregate term of 15-30 years. At CR 1313, 1314-2008, Defendant was 

At CR 1175-2008, Defendant, Curtis A. Walk, was found guilty by a jury verdict 

on September 8, 2009. Judge Elizabeth Doyle sentenced Defendant on November 25, 

HISTORY 

OPINION AND ORDER PURSUANT TO DEFENDANT'S 

POST-CONVICTION RELIEF ACT PETITIONS 

PRESIDING JUDGE 

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HON. DANIELJ. MILLIRON 

PETER WEEKS, ESQ. 

PAUL PUSKAR, ESQ. 

CURTIS A. WALK 

Defendant 

v. CR 1175, 1313, 1314-2008 

IN THE COURT OF COMMON PLEA~ OF BLAIR COUNTY, PENNSYLVANIA 1. 

COMMONWEALTH OF PENNSYLVANIA \ , 

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2 

client's best interests; thus, it is Defendant's burden to prove otherwise. Com, v, 

McGill, 832 A.2d 1014, 1020 (Pa. 2003). Counsel is assumed to have acted in his 

(3) the petitioner suffered prejudice as a result of that counsel's deficiency. Com. v. 

challenged did not have a reasonable basis for his or her actions or failure to act; and 

substantive claim has arguable merit; (2) counsel whose effectiveness is being 

plead and prove by a preponderance of the evidence that (1) the underlying 

ineffective for failing to file an appeal in the above-captioned matters. Def, 's PCRA Pet. 

3. Defendant alleges that this conduct constitutes prejudice for purposes of 42 Pa.CS. 

§ 9543(a)(2)(ii). In a claim of ineffective assistance of counsel, a PCRA petitioner must 

Defendant avers that his trial counsels David L. Beyer and Justin J. Ketch el were 

9543(a)(3). 

that the issues raised have not been previously litigated or waived. 42 Pa.CS. § 

circumstances. 42 Pa.CS. § 9543(a)(2). In addition, the PCRA petitioner must prove 

sentence he is attacking resulted from one of seven specifically enumerated 

petitioner must prove by a preponderance of the evidence that the conviction or 

771 (Pa. 1995). To be eligible for PCRA relief pursuant to 42 Pa.CS. § 9543, a 

The purpose of the PCRA is not to provide defendants with means of relitigating merits of issues already decided on direct appeal. Com. v. Buehl, 658 A.2d 

I. INEFFECTIVENESS OF COUNSEL: FAILURE TO FILE AN APPEAL 

DISCUSSION 

Defendant's claims. Attorney Burns was later injured during an unrelated trial in May 

13, 2013. The Court now proceeds to disposition. 

submit any memorandum or additional documentation that would support or discredit 

2011 where Attorney Beyer testified. The Court left the record open for counsel to 

Attorney Ketchel's testimony only. A subsequent hearing was held on December 20, "\ 

, 

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3 

Defendant claims that he told his trial counsel-Justin Ketchel at CR 1175-2008 and 

1244 (citing Com. v. Bath, 907 A.2d 619 (Pa. Super. 2006)). In the instant matter, 

requested a direct appeal and counsel disregarded that request." Ousley, 21 A.3d at 

find ineffectiveness for failing to file a direct appeal, the petitioner must prove that he 

establishing prejudice." Com. v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011). See 

Com. v. Lantzy, 558 Pa. 214, 227, 736 A.2d 564, 572 (1999). "[B)efore a court will 

petitioner is entitled to reinstatement of direct appeal rights nunc pro tune.without 

file a requested direct appeal constitutes ineffective assistance per se, such that the 

The Pennsylvania Supreme Court has held that "counsel's unexplained failure to 

122 7 (Pa. 2005). 

prongs of the ineffectiveness standard have been met. Com. v. Zook, 887 A.2d 1218, 

may be dismissed on that basis alone without a determination of whether the first two 

asserting a claim of ineffectiveness has failed to meet the prejudice prong, the claim 

different. Com. v. Cox, 863 A.2d 536, 546 (Pa. 2004). When it is clear that the party 

probability, but for counsel's error, the outcome of the proceeding would have been 

Furthermore, a finding of prejudice depends on whether there is a reasonable 

Tilley, 595 A.2d 5 75, 587 (Pa. 1991). 

235. Counsel cannot be held ineffective for failing to raise meritless claims. Com. v. 

client's interest, counsel will be deemed constitutioncilly effective. Miller, 431 A.2d at 

, 

chosen by counsel had some reasonable basis which was designed to effectuate the 

Hill, 235 A.2d 347, 349 (Pa. 1967). Once it is determined that the course of action 

so unreasonable that a competent lawyer would not have chosen that strategy. Com v. 

alternatives available to counsel, whether the actual strategy employed by counsel was. 

\ 

Miller, 431 A.2d 233, 23 5 (Pa. 1981). The Court must determine, in light of all the 

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4 

day of sentencing]." Test. Tr. 11:22-23; 12:3-5, Nov. 9, 2011. 

through phone, through e-mail, through letter or in person any time later than [the 

2011 Hearing. Attorney Ketchel credibly testified that he "never spoke with [Tamiah] 

in the hallway of the courthouse when I told my Attorney Justin J. Kechel to file the 

[d]irect [a]ppeal." Def.'s PCRA Pet. 3. However, this was addressed at the November 9, 

Defendant asserted that "Tamiah [Harold], Ashley [Stoll, and Terri was [sic] also 

at 10:10-14. 

was telling me and so we confirmed with each other that that as to be his wishes." Id. 

Attorney Beyer and [Defendant] was telling Attorney Beyer the exact same thing as he 

tell him and he would just be like, I don't care; whatever; I'll just do the time." Id. at 

9:22-25; 10:1-2. Furthermore, Attorney Ketchel testified that he "discussed with 

Defendant "specifically stated that he did not want to appeal; that he was just going to 

do his time. Mr. Walk had a very nonchalant, careless attitude about things. You could 

conversation happened while Defendant was being sentenced on a collateral matter. 

do and he again said he did not want to appeal." Id. at9:6-9, 16-17. The final 

sentencing: "I again asked him, you know, you have these rights; what do you want to 

appeals." Id. at 8:22-2 5; 9: 1-3. The next discussion occurred on the day of 

, 

Defendant on three separate occasions. Test. Tr. 9:l·S-20, Nov. 9, 2011. The first 

conversation occurred immediately after the jury trial "Actually that day, I went down 

to the holding cell and he said, I don't care; I'm done with this; I don't want any 

discussed the possibility of a post-sentence motion or appeal in CR 1175-2008 with 

. At the November 9, 2011 PCRA hearing, Attorney Ketchel testified that he 

David Beyer at CR 1313-2008-at sentencing to file an appeal and the appeal was 

never filed. Def.'s PCRA Pet. 3 . 

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s 

Attorney Beyer testified that Defendant's request for an appeal in CR 1313-2008 of 

wish to pursue an appeal of Judge Doyle's sentence in CR 117 5-2008. Moreover, 

PCRA hearing that Defendant's position was exactly the opposite; Defendant did not 

him to file an appeal. Conversely, Attorney Ketchel testified at the November 9, 2011 

Ketchel denied receiving any notice, in writing or directly from Defendant, instructing 

Defender's Office, the disposition turns to the credibility of the witnesses. Attorney 

As there is no proof that Defendant's handwritten letters were sent to the Public 

Test. Tr. 25:11-14, Dec. 20, 2011. 

in the Public Defender's file, then Defendant's appellate rights must be reinstated. 

emphasized at the December 20, 2011 hearing that if a stamped copy of this letter was 

l have told you to put in appeal the day I [l]ost my [t]rial and I also told you to put in 

appeal the day I got sentenced. I want you to put my [a]ppeal in." Id. The Court 

Def.'s Ex. 1. Of particular importance was a letter to Attorney Ketchel dated November 

29, 2009 that said: "I have just got sentenced November 25th to a term of 15-30 years. 

counsels requesting an appeal to be filed. These letters were entered into the record as 

handwritten copies of letters from 2009-2010 that Defendant allegedly sent to his trial 

At the December 20, 2011 hearing, Attorney Burns produced Defendant's own 

another case involving Defendant. Id. at 5:4-8. 

appealed. In fact the one letter I sent him I told him if my clients ask me to file an 

appeal: I file the appeal." Id. at 4:25; 5:1-3. Attorney Beyer filed a timely appeal on 

20, 2011. Defendant did not request an appeal to be filed durinq the appeal period. Id. 

at 4: 18-20. Attorney Beyer stated that "[i]f [Defendant] wanted to appeal I would have 

I 

appeal to be filed after the appeal period had ended. Test. Tr. 3:17-22; 4:15-17, Dec. 

1313-2008 that Defendant had sent him approximately two letters requesting an 

Attorney Beyer testified at the December 201 2011 PCRA hearing regarding CR \ 

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6 

DANIELJ. MILLIRON, 

JUDGE 

Dated: 3/24/15 

BY THE COURT, 

such, Defendant's PCRA Petitions are meritless and denied in their entirety. 

Attorney Ketchel and Attorney Beyer were not ineffective for not filing an appeal. As 

(emphasis added). No proof exists that Defendant's handwritten letters requesting an 

appeal were sent to the Public Defender's Office and ultimately ignored; therefore, 

rejected by trial counsel." Com. v. Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999) 

on [Defendant] to plead and prove that his request for an appeal was ignored or 

Beyer to file an appeal in the above-captioned matters is insufficient. "The burden is 

Defendant's mere allegation that he requested Attorney Ketchel and Attorney 

CONCLUSION 

file a direct appeal until after the appeal period had passed. 

sentence. Furthermore, in CR 1313-2008, Defendant did not request Attorney Bey~r, to 

occasions that he did not wish to file an appeal, but instead wished to serve his 

Ketchel did not disregard such a request. Defendant Was clear with counsel on multiple 

regarding Defendant's position on filing an appeal in the above-captioned matters. In 

CR 1175-2008, Defendant did not request a direct appeal to be,filed and Attorney 

The Court finds Attorney Ketchel and Attorney Beyer's testimony credible 

had passed. 

this Court's Sentencing Order dated October 6, 2009 was made after the appeal period 

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DANIEL J. MILLIRON, 

JUDGE 

BY THE COURT, 

2. Defendant's requests for new trials are denied. 

ineffective for failing to file a direct appeal. 

Ketchel at CR 1175-2008 and David Beyer at CR 1313-2008, were not 

1. Defendant's PCRA Petitions are meritless. Defendant's trial counsel, Justin 

DIRECTED, AND DECREED: 

Conviction Relief Act Petitions in the above-captioned matters, it is hereby ORDERED, 

AND NOW, this 241h day of March, 2015, upon consideration of Defendant's Post 

ORDER 

COUNSEL FOR DEFENDANT 

PRESIQING JUDGE 

ASST. DISTRICT ATTORNEY 

HON. DANIELJ. MILLIRON 

PETER WEEKS, ESQ. 

PAUL PUSKAR, ESQ. 

CURTIS A. WALK 

Defendant 

v. CR 1175, 1313, 1314-2008 

IN THE COURT OF COMMON PLEAS·OF BLAIR COUNTY, PENNSYLVANIA 

COMMONWEALTH OF PENNSYLVANIA 

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