J-S42024-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDWARD JAROL MARTINEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 239 MDA 2018

Appeal from the PCRA Order January 22, 2018

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

No(s): CP-38-CR-0000292-2016

BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 30, 2018

Edward Jarol Martinez appeals from the January 22, 2018 order denying 

his petition filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-

46. Martinez claims his counsel was ineffective for failing to file an appeal. We 

affirm.

On September 15, 2016, a jury found Martinez guilty of aggravated 

assault and simple assault, and the trial court found Martinez guilty of the 

summary offense of harassment.

1 The trial court sentenced Martinez to 7 to 

15 years’ imprisonment on the aggravated assault conviction, and found the 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), and 2709(a)(1), respectively.
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other convictions merged for sentencing purposes. Martinez filed a pro se

post-sentence motion, which the trial court denied on February 1, 2017.2

On August 28, 2017, Martinez filed a pro se PCRA petition alleging he 

had asked his counsel to file an appeal, but his counsel failed to do so. The 

PCRA court appointed counsel, who filed an amended PCRA petition, alleging 

counsel was ineffective for failing to file an appeal. The PCRA court held an

evidentiary hearing at which Martinez and trial counsel both testified. 

Martinez testified that he had a conversation with his trial counsel after 

his conviction about an appeal and wrote his counsel a letter requesting that 

counsel file an appeal. N.T., 1/18/18, at 7-10. He also stated that after the 

sentencing hearing he sent a letter requesting that counsel file an appeal. Id.

at 11. Martinez testified that he no longer had copies of the letters. Id. at 9, 

11. On cross-examination, he agreed that he signed a post-sentence colloquy, 

and that he understood he had to file an appeal within 30 days. Id. at 15-16.

Trial counsel testified that if a defendant asks him to file an appeal, he 

does so. Id. at 20. He stated Martinez did not orally communicate his desire 

to file an appeal. Id. Further, he stated he reviewed the letters sent by 

Martinez after sentencing, and found no request for an appeal. Id. at 21. 

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2 Because Martinez was represented by counsel, the trial court should not have 

entertained this pro se motion. Commonwealth v. Jette, 23 A.3d 1032, 

1044 (“proper response to any pro se pleading is to refer the pleading to 

counsel, and to take no further action on the pro se pleading unless counsel 

forwards a motion”); Commonwealth v. Nischan, 928 A.2d 349, 355 

(Pa.Super. 2007) (noting that, where defendant was represented by counsel 

“pro se post-sentence motion was a nullity, having no legal effect”).
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The PCRA court denied relief. The PCRA court credited the testimony of 

trial counsel, who stated that he had no recollection that Martinez verbally 

requested an appeal and that he reviewed all documents sent to him after the 

sentencing, none of which mentions an appeal. Order of Court, filed Jan. 22, 

2018, at ¶ D. In addition, the PCRA court reviewed the letters Martinez sent

to counsel prior to sentencing, and found no request for an appeal. Id. The 

PCRA court further noted that Martinez was informed of his appellate rights at 

sentencing, and knew he had to file an appeal within 30 days of the judgment 

of sentence. Id. at ¶ E. The court concluded that Martinez did not request that 

his trial counsel file an appeal and, therefore, found his ineffectiveness claim 

lacked merit. Id. at ¶ G.

Martinez filed a timely notice of appeal. On appeal, Martinez raises the 

following issue: “Whether [Martinez] was denied his constitutionally 

guaranteed right to effective representation when [Martinez] avers that prior 

counsel failed to file an appeal to the Superior Court of Pennsylvania on 

[Martinez’s] behalf?” Martinez’s Br. at 4.

Martinez argues that trial counsel knew he wanted to file an appeal, but 

failed to file one. Id. at 12. He alleges that trial counsel abandoned him 

through the appeal process; if counsel had informed him that he was not going 

to file an appeal, Martinez would have filed one pro se or through new counsel;

and counsel’s failure to file an appeal prejudiced him. Id. at 13-14.

When reviewing the dismissal of a PCRA petition, we examine the PCRA 

court’s “findings of fact to determine whether they are supported by the 
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record, and . . . its conclusions of law to determine whether they are free from 

legal error.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting 

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)).

To establish a claim that counsel was ineffective for failing to file a 

requested appeal, a petitioner must establish that the petitioner “requested 

an appeal and that counsel disregarded this request.” Commonwealth v. 

Harmon, 738 A.2d 1023, 1024 (Pa.Super. 1999). Failure to file an appeal 

when requested to do so is per se prejudicial for PCRA purposes. 

Commonwealth v. Lanzy, 736 A.2d 564, 572 (Pa. 1999).3

Here, the PCRA court found that Martinez did not ask trial counsel to file 

an appeal and, therefore, found that his ineffectiveness claim lacked merit. 

This finding is supported by the record, as trial counsel testified that Martinez 

did not verbally request an appeal and that the post-sentence written 

communications from Martinez did not request an appeal. Further, the court 

reviewed the pre-sentence written communications from Martinez to counsel, 

and found no request to file an appeal. Because Martinez did not ask his 

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3 Martinez does not allege that counsel was ineffective for failing to consult 

with him about an appeal. See Commonwealth v. Markowitz, 32 A.3d 706, 

714 (Pa.Super. 2011) (counsel will be found ineffective for failing to consult 

with defendant about appeal “where a duty to consult arises either because 

there were issues of merit to raise on direct appeal or the defendant, in some 

manner, displayed signs of desiring an appeal” (citing Roe v. Flores–Ortega,

528 U.S. 470 (2000))). A claim that counsel was ineffective for failing to 

consult with a defendant is different from a claim that counsel is ineffective 

for failing to file a requested appeal. See Commonwealth v. Touw, 781 A.2d 

1250, 1253 (Pa.Super. 2001) (claim that counsel failed to consult with 

defendant about appeal “does not fit within the rule articulated by” Lantzy).
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counsel to file an appeal, his counsel ineffectiveness claim for failing to file an 

appeal lacks merit. See Markowitz, 32 A.3d at 716 (concluding counsel could 

not be per se ineffective because appellant did not ask counsel to file appeal).

The PCRA court did not err in denying the petition.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/30/2018