J-S21022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOEL VASQUEZ

Appellant No. 2004 EDA 2014

Appeal from the PCRA Order June 20, 2014

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0003099-2012

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED APRIL 08, 2015

Appellant Joel Vasquez appeals from the order entered in the Lehigh 

County Court of Common Pleas, which dismissed his petition seeking relief 

pursuant to the Post Conviction Relief Act (“PCRA”).1 For the reasons that 

follow, we reverse the order of the PCRA court and reinstate Appellant’s 

appeal rights nunc pro tunc.

The PCRA court summarized the relevant procedural history of this 

appeal as follows:

On January 18, 2013, [Appellant] entered a negotiated 

guilty plea to two counts of aggravated assault (18 

[Pa.C.S.] §2702(a)(4) and §2702(a)1)) and one count of 

recklessly endangering another person (18 [Pa.C.S.] 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
J-S21022-15

- 2 -

§2705).[2] In exchange, the Commonwealth agreed to 

bind the court to a standard range sentence. On February 

19, 2013, [Appellant] was sentenced to serve an 

aggregate sentence of no less than 70 months nor more 

than 30 years of incarceration. At the time, [Appellant] 

was represented by Earl Supplee, Esquire of the Office of 

the Public Defender of Lehigh County.

On March 1, 2013, [Appellant] filed a pro se motion to 

modify and reduce sentence. Said motion was denied by 

this court on March 5, 2013.[3]

On October 15, 2013, [Appellant] wrote a letter to this 

court, which the court considered a motion to file appeal 

nunc pro tunc. On the same day, the court denied the 

motion.

On November 4, 2013, [Appellant] filed a pro se [PCRA 

petition]. On November 5, 2013, Charles Banta, Esquire 

was appointed to represent [Appellant] for purposes of his 

PCRA petition and was ordered to file an amended PCRA 

petition. An Amended PCRA Petition was filed on February 

25, 2014. 

On June 20, 2014, a PCRA hearing was held, with 

[Appellant] participating via videoconference while 

remaining incarcerated at the State Correctional Institution 

at Benner Township. Testimony was taken from 

[Appellant] and his trial counsel, Earl Supplee, Esquire and 

arguments were made by the Commonwealth and PCRA 

Counsel Banta. At the conclusion of the hearing, the court 

denied the PCRA Petition. 

____________________________________________

2

These charges stem from an incident in which Appellant stabbed two 

people and himself. Although Appellant was diagnosed with paranoid 

schizophrenia and was not taking his medication at the time of the 

stabbings, he elected not to employ an insanity defense. See N.T., 1/18/13, 

at 11.

3 The court denied the motion on its merits.
J-S21022-15

- 3 -

[Appellant] filed an appeal of the PCRA denial on June 30, 

2014 and a statement of matters complained of on appeal 

on July 17, 2014. 

PCRA Court Opinion, filed September 11, 2014, at 2-3 (unnecessary 

capitalization omitted).

Appellant raises the following issue for our review:

WHETHER THE TRIAL COURT ERRED IN FAILING TO FIND 

COUNSEL INEFFECTIVE WHEN APPELLANT ESTABLISHED 

HE REQUESTED COUNSEL TO FILE AN APPEAL AND

COUNSEL FAILED TO ACT UPON THE REQUEST?

Appellant’s Brief at 5.

Appellant argues his trial counsel was ineffective for failing to consult 

with him following sentencing, and for failing to file post-sentence motions 

or an appeal when he knew or should have known that Appellant wanted to 

appeal his judgment of sentence. Appellant concludes his trial counsel’s 

ineffectiveness entitles him to the reinstatement of his appeal rights nunc 

pro tunc. We agree.

Our well-settled standard of review for orders denying PCRA relief is 

“to determine whether the determination of the PCRA court is supported by 

the evidence of record and is free of legal error. The PCRA court’s findings 

will not be disturbed unless there is no support for the findings in the 

certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-192 

(Pa.Super.2013) (internal quotations and citations omitted).
J-S21022-15

- 4 -

Initially, we note that claims of ineffective assistance of counsel are 

cognizable under the PCRA and Appellant’s PCRA petition is timely. See 42 

Pa.C.S. §§ 9543(a)(2)(ii), 9545(b).

Generally, this Court follows the Pierce4test adopted by our Supreme 

Court to review claims of ineffective assistance of counsel:

When a petitioner alleges trial counsel’s ineffectiveness in 

a PCRA petition, he must prove by a preponderance of the 

evidence that his conviction or sentence resulted from 

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. We have 

interpreted this provision in the PCRA to mean that the 

petitioner must show: (1) that his claim of counsel’s 

ineffectiveness has merit; (2) that counsel had no 

reasonable strategic basis for his action or inaction; and 

(3) that the error of counsel prejudiced the petitioner-i.e., 

that there is a reasonable probability that, but for the error 

of counsel, the outcome of the proceeding would have 

been different. We presume that counsel is effective, and 

it is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal 

denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct 2029, 

164 L.Ed.2d 782 (2006) (internal citations and quotations omitted). The 

petitioner bears the burden of proving all three prongs of this test. 

Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001). “If an 

appellant fails to prove by a preponderance of the evidence any of the 

Pierce prongs, the Court need not address the remaining prongs of the 

____________________________________________

4 Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
J-S21022-15

- 5 -

test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009), 

appeal denied, 990 A.2d 727 (2010) (citation omitted). 

“[In] Roe v. Flores–Ortega, 528 U.S. 470, 120 S.Ct. 1029 [(2000)], 

the United States Supreme Court recognized an ineffective assistance of 

counsel claim based upon trial counsel’s failure to consult with his client 

concerning the client’s right to file a direct appeal from his judgment of 

sentence.” Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super.2011). 

“This Court applied Roe to a Pennsylvania criminal defendant seeking to 

appeal from his judgment of sentence in Commonwealth v. Touw, 781 

A.2d 1250 (Pa.Super.2001).” Id. at 682-83. 

This Court analyzed ineffective assistance of counsel claims concerning 

failure to file appeals as follows:

The Roe Court begins its analysis by noting: “We have 

long held that a lawyer who disregards specific instructions 

from the defendant to file a notice of appeal acts in a 

manner that is professionally unreasonable.” Id. at 477 

[120 S.Ct. 1029.] In Commonwealth v. Touw, 781 A.2d 

1250 (Pa.Super.2001), this Court concisely summarized 

the remainder of the Roe decision as follows:

The [United States Supreme] Court began its 

analysis by addressing a separate, but antecedent, 

question: “whether counsel in fact consulted with the 

defendant about an appeal.” The Court defined 

“consult” as “advising the defendant about the 

advantages and disadvantages of taking an appeal, 

and making a reasonable effort to discover the 

defendant’s wishes.” The Court continued[:]

If counsel has not consulted with the 

defendant, the court must in turn ask a 

second, and subsidiary, question: whether 
J-S21022-15

- 6 -

counsel’s failure to consult with the defendant 

itself constitutes deficient performance. That 

question lies at the heart of this case: Under 

what circumstances does counsel have an 

obligation to consult with the defendant about 

an appeal?

[Roe, at 478, 120 S.Ct. 1029]. The Court answered the 

question by holding:

[C]ounsel has a constitutionally-imposed duty to 

consult with the defendant about an appeal when 

there is reason to think either (1) that a rational 

defendant would want to appeal (for example, 

because there are non-frivolous grounds for appeal), 

or (2) that this particular defendant reasonably 

demonstrated to counsel that he was interested in 

appealing. In making this determination, courts 

must take into account all the information 

counsel knew or should have known.

[Id. at 480, 120 S.Ct. 1029]. A deficient failure on the 

part of counsel to consult with the defendant does not 

automatically entitle the defendant to reinstatement of his 

or her appellate rights; the defendant must show 

prejudice. The [Roe] Court held that “to show prejudice in 

these circumstances, a defendant must demonstrate that 

there is a reasonable probability that, but for counsel’s 

deficient failure to consult with him about an appeal, he 

would have timely appealed.” [Id.]

Carter, supra. at 683 (2011) (emphasis added).

Instantly, Appellant did not have any discussions with trial counsel 

after sentencing. N.T., 6/20/14, at 23. Although Appellant claims he called 

counsel and left messages expressing his desire to file post-sentence 

motions and an appeal, counsel denies receiving the messages. Id. 

However, when counsel received Appellant’s pro se post-sentence motion, 

counsel realized that Appellant wanted to file one. Id. The court entered 
J-S21022-15

- 7 -

Appellant’s judgment of sentence on February 19, 2013. Appellant filed his 

pro se post-sentence motion on March 1, 2013. The court denied this 

motion on March 5, 2013. Although counsel did not remember the exact 

date he received Appellant’s post-sentence motion, he recalled: “When I 

received it, it was already after the ten days, and it was denied within a 

couple days right after that. I’m not sure if I received the denial almost at 

the same time, but we received the denial and that was the end of that 

matter.” N.T. at 23-24.

In denying Appellant’s PCRA petition, the court reasoned:

In this case, [Appellant] failed to provide the court with 

any testimony or evidence that he contacted Attorney 

Supplee regarding an appeal. Absent any indication that 

[Appellant] wanted to file an appeal, Attorney Supplee did 

not have an obligation to consult with him regarding an 

appeal. Counsel only has a duty to consult with his client 

about an appeal when counsel has “reason to think either 

(1) that a rational defendant would want to appeal..., or 

(2) that this particular defendant reasonably demonstrated 

to counsel that he was interested in appealing.” [Carter, 

supra. at 683].

Attorney Supplee had no reason to think that [Appellant] 

would want to appeal his sentence. [Appellant] plead 

guilty to lesser counts of the Criminal Information and had 

a binding agreement for a standard range sentence. The 

court, following the agreement, sentenced [Appellant] 

within the standard range. While Attorney Supplee may 

have expressed his hope that the sentence would be less, 

he made no such promise. When the court abided the 

agreement reached between [Appellant] and the 

Commonwealth, Attorney Supplee had no reason to 

believe that [Appellant] would want to file an appeal. 

Accordingly, the Appellant’s claim that counsel was 

ineffective for not filing an appeal is meritless.
J-S21022-15

- 8 -

Because the Appellant is unable to satisfy the prejudice 

prong of the ineffectiveness of counsel prong, we need not 

explore the remaining two prongs of the analysis.

PCRA Opinion at 9-10 (unnecessary capitalization omitted).

The PCRA court determined Appellant was unable to satisfy the 

prejudice prong of the ineffectiveness of counsel test. To satisfy the 

prejudice prong, however, Appellant must only show that there is a 

reasonable probability that, but for counsel’s deficient failure to consult with 

him about an appeal, he would have timely appealed. See Carter, supra. 

Further, although the PCRA court stated that “Appellant failed to 

provide...any testimony or evidence that he contacted Attorney Supplee 

regarding an appeal,” Appellant testified that he called counsel, wrote a 

letter to counsel and filed a pro se post-sentence motion. Importantly, 

counsel admitted receiving the pro se motion before the expiration of the 

appeal period. The court erred by failing to take into account this 

information, which should have reasonably demonstrated to counsel that 

Appellant wanted to appeal. See Carter, supra.

In view of the fact that Appellant never exercised his right to a direct 

appeal, the trial court should have granted Appellant leave to file an appeal 

nunc pro tunc.

Order reversed and case remanded with instructions that Appellant be 

permitted to file a direct appeal nunc pro tunc within thirty (30) days of the 

date of this Memorandum.
J-S21022-15

- 9 -

Judge Bowes joins in the memorandum.

Judge Platt concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/8/2015