J-S24041-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY PELZER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1181 EDA 2021

Appeal from the PCRA Order Entered June 10, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0012837-2008

BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 8, 2022

Anthony Pelzer (Pelzer) appeals from the order of the Court of Common 

Pleas of Philadelphia County (PCRA court) dismissing his petition for relief 

under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After 

review, we reverse the PCRA court’s order and remand for an evidentiary 

hearing.

I.

A.

On March 26, 2012, Pelzer entered into a negotiated plea agreement 

with the Commonwealth and pleaded guilty to simple assault and corruption 

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* Retired Senior Judge assigned to the Superior Court.
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of minors.1 That same day, the trial court sentenced Pelzer to serve 3 to 23 

months’ imprisonment for simple assault and a consecutive four years’ 

probation for corruption of minors. After being paroled, Pelzer tested positive 

for cocaine and absconded from supervision by failing to report to the 

probation department. As a result, on August 23, 2012, the trial court issued 

a bench warrant for Pelzer’s arrest.

Pelzer was eventually arrested and brought back before the trial court 

for a probation violation hearing on January 29, 2019. Pelzer was represented 

by the Defender Association of Philadelphia (Defender Association) at that 

hearing. Pelzer’s counsel (VOP counsel) explained that Pelzer absconded from 

supervision in 2012 because he was taking care of his mother with cancer at 

that time and was scared of what would happen if he was reincarcerated and 

unable to transport her to her treatments. VOP counsel also explained that 

Pelzer absconded because he was taking care of his four grandchildren at the 

time and continued to do so. Thus, while conceding that Pelzer was in 

technical violation, VOP counsel requested that he receive a county sentence 

with an opportunity for parole to house arrest after 60 days.

The trial court expressed understandable worry with this request, 

pointing out that Pelzer had been convicted of corruption of minors of a 15-

year-old female cousin, and the four grandkids were all female and between 

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1 18 Pa.C.S. §§ 2701(a) and 6301(a)(1).
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the ages 6 and 12. Moreover, the trial court emphasized, Pelzer had 

absconded from supervision and failed to report for nearly seven years. As a 

result, the trial court found Pelzer in violation, revoked his probation on his 

corruption of minors charge and sentenced him to 21⁄2 to 5 years’ 

imprisonment.

Upon hearing his sentence, Pelzer expressed confusion by asking if he 

was going to be released. After explaining his sentence to him, VOP counsel 

placed the following on the record:

You have ten days to ask Her Honor to reconsider her sentence. 

You have thirty days to ask this court for an appeal on any errors 

of law that you believe were committed during today’s hearing. 

Both of those motions must be done in writing. Our office will 

continue to represent you. If you have any questions about any 

motions or if you wish to file any of those motions you can contact 

our office.

N.T., 1/29/19, at 15-16.

On February 6, 2019, VOP counsel filed a timely post-sentence motion

for reconsideration of the trial court’s sentence, alleging that the trial court 

had imposed an illegal sentence for Pelzer’s technical probation violation. 

Even though such a motion does not toll the 30-day appeal period, see

Pa.R.Crim.P. 708(E), VOP counsel did not also file a contemporaneous notice 

of appeal. As a result, when the trial court failed to address or rule on the

post-sentence motion, the motion was deemed denied by operation of law on 

June 6, 2019, which would have been 120 days after it was filed. See

Pa.R.Crim.P. 720(B)(3)(a).
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B.

On December 27, 2019, Pelzer filed a pro se PCRA petition. Among 

other things, Pelzer attached a letter from the Defender Association dated

February 8, 2019, which would have been two days after his post-sentence 

motion was filed. In the letter, the Defender Association informed Pelzer that, 

“[a]t your attorney’s request, our office filed a petition to vacate and 

reconsider, asking the judge to schedule a new sentencing hearing. We will 

notify you in writing of the judge’s decision.” The letter contained no further 

information about filing an appeal.

Counsel was appointed and filed an amended petition alleging that VOP 

counsel was ineffective for failing to file an appeal from Pelzer’s probation 

violation sentence. In response, the Commonwealth did not oppose Pelzer’s 

direct appeal rights being reinstated nunc pro tunc. In so doing, the 

Commonwealth related that it had spoken to VOP counsel as part of its 

investigation on Pelzer’s claim. VOP counsel indicated that she was unaware 

that the filing of the post-sentence motion did not toll the 30-day appeal period

and, therefore, did not consult with Pelzer about that fact.

Despite the Commonwealth’s position, however, the PCRA court issued 

notice of its intent to dismiss Pelzer’s petition under Pa.R.Crim.P. 907 and, 

after receiving no response, formally dismissed the petition on June 10, 2021. 

After Pelzer timely appealed, the PCRA court explained the dismissal in its 

Pa.R.A.P. 1925(a) opinion. First, the PCRA court found that Pelzer failed to 
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plead that he ever requested VOP counsel to file an appeal, noting that there 

is no right to counsel automatically filing an appeal on a defendant’s behalf. 

Second, the PCRA court highlighted that VOP counsel informed Pelzer of his

appellate rights on the record at the end of the hearing. In particular, as 

quoted above, the PCRA court emphasized that VOP counsel correctly 

informed Pelzer that he had “thirty days to ask this court for an appeal on any 

errors of law that you believe were committed during today’s hearing.”

II.

On appeal, Pelzer asserts that the PCRA court erred in dismissing his 

petition without a hearing.

2

 Pelzer contends he is entitled to reinstatement of 

his appellate rights nunc pro tunc because VOP counsel did not inform him 

that filing the post-sentence motion would not toll the 30-day appeal period 

for filing an appeal. Addressing the PCRA court’s dismissal based on him never 

requesting an appeal, Pelzer points out that he has not yet been afforded an

evidentiary hearing in which to make such a claim, not to mention that VOP 

counsel never consulted with him about filing a direct appeal. Even if he did 

not request an appeal, though, Pelzer asserts that counsel can still be found 

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2 We review the decision to deny PCRA relief to determine whether the decision 

“is supported by evidence of record and whether it is free of legal error.” 

Commonwealth v. Hart, 199 A.3d 475, 481 (Pa. Super. 2018) (citation 

omitted). Where the PCRA court declined to hold an evidentiary hearing, we 

consider whether the petition presented any genuine issues of material fact 

that warranted a hearing. Id. We review the court’s legal conclusions de

novo. Id.
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ineffective for failing to adequately consult with him about his appellate rights. 

Here, Pelzer argues that VOP counsel had a duty to consult him because he 

definitely wanted his sentence reconsidered, and the only way to preserve 

such a challenge would be through an appeal if his post-sentence motion was 

denied.

Like it did in the PCRA court, the Commonwealth agrees that VOP 

counsel had a duty to consult Pelzer about filing an appeal:

The letter from the Defender Association confirmed that 

[Pelzer] requested a post-sentence motion for reconsideration of 

sentence and presumably led him to await a disposition on that 

motion before proceeding to the next stage of an appeal. The 

letter did not advise him of the fact this particular post-sentence 

motion, unlike most post-sentence motions, did not toll the time 

period to file a notice of appeal. VOP counsel told the 

Commonwealth that she did not know that the motion to 

reconsider would not toll the notice of appeal period pursuant to 

Rule 708(E) and that she therefore did not consult with [Pelzer]

about filing a notice of appeal at the same time as the motion to 

reconsider sentence. The failure to have a conversation about 

appealing constitutes a failure to consult. See Commonwealth 

v. Green, 168 A.3d 173, 177 (Pa. Super. 2017) (holding that 

counsel who “unequivocally denied discussing an appeal” did not 

provide the appellant an adequate consultation).

The totality of the circumstances suggest that VOP counsel 

should have conducted such a consultation. [Pelzer] obviously 

was dissatisfied with his sentence since he requested a motion for 

reconsideration and counsel filed that motion. Because the VOP 

court never ruled on the motion or entered an order denying the 

motion by operation of law, he was never afforded a natural 

opportunity to pursue the next step of appeal (although a notice 

of appeal would have been untimely by then, he did not yet know 

that fact). The fact he received the statutory maximum prison 

sentence of two and one-half to five years for corrupting the 

morals of a minor further suggested defendant’s interest in an 

appeal. See [Commonwelath v.] Parrish, 273 A.3d [989,] 

1007 [(Pa. Super. 2022)]. Moreover, this statutory maximum 
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exceeded the recommendation made by both [Pelzer] and the 

Commonwealth for a county prison sentence of less than two 

years.

Commonwealth’s Brief at 11-12 (internal record citations and footnote 

omitted).

In considering an ineffective assistance of counsel claim, we observe 

first that counsel is presumed effective and that a petitioner bears the burden 

to prove otherwise. See Commonwealth v. Fears, 86 A.3d 795, 804 (Pa.

Super. 2014). To establish an ineffectiveness claim, a defendant must prove:

(1) the underlying claim has arguable merit; (2) no reasonable 

basis existed for counsel’s actions or failure to act; and (3) 

[appellant] suffered prejudice as a result of counsel’s error such 

that there is a reasonable probability that the result of the 

proceeding would have been different absent such error.

Id. (citation omitted). “Failure to prove any prong of this test will defeat an 

ineffectiveness claim.” Id. (citation omitted).

When a defendant does not explicitly instruct counsel to file a direct 

appeal, counsel may still be found ineffective if counsel did not consult with 

the defendant about their appellate rights. See Commonwealth v. Touw,

781 A.2d 1250 (Pa. Super. 2001). In Touw, we recognized that in Roe v.

Flores-Ortega, 528 U.S. 470 (2000), the United States Supreme 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.” Touw, 781 A.2d at 1254 (citing Flores-Ortega,

528 U.S. at 478)). We then cited the following from Flores-Ortega:
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[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, 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.

Touw, 781 A.2d at 1254 (citing Flores-Ortega, 528 U.S. at 480).

“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.” Touw, 781 A.2d at 1254. As we noted, “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.” Touw, 781 A.2d at

1254 (citing Flores-Ortega, 528 U.S. at 484).

After review, we agree with the Commonwealth that Pelzer alleged 

enough in his petition to warrant an evidentiary hearing to determine whether 

VOP counsel was ineffective for failing to consult with Pelzer about his 

appellate rights. As discussed, Pelzer expressed confusion about his sentence 

at the hearing and filed a post-sentence motion for reconsideration, arguing 

that the sentence was illegal. While VOP counsel informed Pelzer at the end 

of the hearing that he had 30 days to appeal, her rote explanation of his 

appellate rights failed to also inform him that filing a post-sentence motion 

would not toll the 30-day appeal period.
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Not only that, but after the post-sentence motion was filed, the Defender 

Association sent a letter to Pelzer to inform him about the filing of the motion 

and telling him it would notify him in writing of the trial court’s decision. As 

noted, assuming the authenticity of the document, the letter did not inform 

Pelzer that his post-sentence motion did not toll the 30-day appeal period 

under Pa.R.Crim.P. 708(E), thus possibly giving him the impression that there 

was nothing further for him to do or request until the trial court ruled on his 

motion.

Finally, we are unconvinced by the PCRA court’s reliance on VOP 

counsel’s explanation of appellate rights at the end of the hearing as defeating 

Pelzer’s claim. On this point, we find the Commonwealth’s analysis 

convincing:

... [The PCRA] court asserted that VOP counsel did inform [Pelzer]

that a reconsideration of sentence motion would not toll the period 

to file a notice of appeal by informing him that he had ten days to 

file a reconsideration of sentence and thirty days to file a notice 

of appeal. (PCRA Court Op. at 5–6). The Commonwealth is not 

convinced that this rote colloquy apprised defendant of the effect 

of Rule 708(E), particularly because defense attorneys use the 

same colloquy in non-VOP situations in which a post-sentence 

motion will toll the notice of appeal period. See Pa.R.Crim.P. 

720(A)(2). More fundamentally, whether this colloquy sufficed to 

explain the effect of Rule 708(E) to [Pelzer] is beside the point. 

Even assuming that colloquy sufficiently informed [Pelzer] about 

the time to file an appeal, it did not obviate or satisfy VOP 

counsel’s duty to consult with [Pelzer] about taking a direct appeal 

when the circumstances revealed his interest in appealing.

Commonwealth’s Brief at 12-13.
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We agree with this analysis and find that Pelzer raised a genuine issue 

of fact as to whether VOP counsel had a duty to consult with him about filing 

an appeal from his statutory maximum sentence. Accordingly, we reverse 

and vacate the PCRA court’s order dismissing Pelzer’s petition and remand for 

the PCRA court to hold an evidentiary hearing on the petition.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/8/2022