J-S65018-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AVERY AUVIAN KIRKSEY,

Appellant No. 1996 WDA 2015

Appeal from the PCRA Order of December 4, 2015

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000187-2014

BEFORE: LAZARUS, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 28, 2016

Appellant, Avery Auvian Kirksey, appeals from an order entered on 

December 4, 2015 that dismissed his petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We vacate the 

order of December 4, 2015 and remand with instructions directing the PCRA 

court to reinstate Appellant’s direct appeal rights.

At the conclusion of trial on July 22, 2014, a jury found Appellant 

guilty of recklessly endangering another person, possession of an instrument 

of crime, firearms not to be carried without a license, possession of a firearm 

prohibited, and simple assault.1 Thereafter, on September 18, 2014, the 

trial court sentenced Appellant to an aggregate term of 84 to 180 months’ 

____________________________________________

1 18 Pa.C.S.A. §§ 2705, 907(a), 6106(a)(1), 6105(a)(1), and 2701(a)(3).
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incarceration. Attorney Thomas Brasco, Jr. represented Appellant at trial, 

but did not file post-sentence motions or a direct appeal.

On July 6, 2015, Appellant, acting pro se, filed a PCRA petition 

requesting reinstatement of his appellate rights. The petition alleged, 

among other things, that trial counsel refused to file post-sentence motions 

or a notice of appeal, despite Appellant’s requests. The PCRA court 

appointed counsel who filed an amended petition. The PCRA court convened 

a hearing on December 3, 2015.

Appellant’s PCRA hearing established that he spoke with trial counsel 

about filing a direct appeal immediately after the trial court imposed its 

sentence and again raised the issue in a letter sent to counsel on September 

26, 2014. The following relevant exchanges occurred at the hearing.

DIRECT EXAMINATION (of trial counsel)

Commonwealth: In regard to your representation, after 

[Appellant] was sentenced, did he ever ask you to file an appeal 

of his judgment of sentence?

Trial Counsel: He did. I received a letter from him.

* * *

CROSS EXAMINATION (of trial counsel)

PCRA Counsel: And in [the conversation between you and 

Appellant immediately following sentence] isn’t it true 

[Appellant] asked you to file [] an appeal for him?

Trial Counsel: He asked me if I was going to come see him so 

we could discuss something regarding an appeal.

* * *
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PCRA Counsel: So between your conversation with [Appellant] 

and the letter that he sent you subsequently asking for you to 

file an appeal, you would agree that his attention [sic] was to 

want to appeal his sentence, or the merits of his case?

Trial Counsel: I believe he thought that he may want to file an 

appeal but he did not give me any sort of terms under which he 

believed an appeal could be filed.

* * *

PCRA Counsel: So isn’t it possible that in line with your client’s 

wishes for you to file an appeal, you could have therefore filed 

an [Anders2] [b]rief and let the Superior Court decide whether 

or not any meritorious issues existed?

Trial Counsel: I could have but I was under no obligation to do 

so.

* * *

DIRECT EXAMINATION (of Appellant)

PCRA Counsel: So, right directly after your sentence, you said 

to your attorney that you would like to appeal your sentence?

Appellant: Yeah. I had a few words before the sheriffs took me 

out.

* * *

PCRA Counsel: Is that a copy of the letter that you wrote 

Attorney Brasco?

Appellant: Yes.

PCRA Counsel: And if you just look at the first line, the first 

sentence, right here, what did you ask him to do?

Appellant: Put in a motion for a re – re-preliminary hearing and 

for a re-trial.

PCRA Counsel: And what else did you ask for?

____________________________________________

2 Anders v. California, 386 U.S. 738 (1967).
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Appellant: And I would like to put in a motion for appeal.

PCRA Counsel: [Appellant], do you have any legal training?

Appellant: No.

PCRA Counsel: Are you a lawyer?

Appellant: No.

PCRA Counsel: So you wouldn’t really know specifically the 

word, the legal term that we would use for an appeal, right?

Appellant: Yes.

PCRA Counsel: So what was your intention when you wrote that 

letter?

Appellant: Asking him – asking [Attorney Brasco] for a direct 

appeal.

N.T. PCRA Hearing, 12/3/15, at 4, 7-8, 13, 18-19, and 20.

Following the hearing, the PCRA court concluded that Appellant did not 

ask trial counsel to file an appeal, but merely inquired into the possibility 

and feasibility of such efforts. Accordingly, the PCRA court held that trial 

counsel was not ineffective and dismissed Appellant’s petition. This appeal 

followed in which both the PCRA court and Appellant have complied with 

Pa.R.A.P. 1925.

Appellant raises the following issue for our consideration.

Whether the PCRA court erred in denying [Appellant] 

post-conviction relief [by refusing to reinstate his direct appeal 

rights]?

Appellant’s Brief at 3.
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On appeal, Appellant challenges the PCRA court’s denial of 

post-conviction relief. Our standard of review is well settled.

[We review an order] denying PCRA relief [to ascertain] whether 

the record supports the PCRA court's determination and whether 

the PCRA court's decision 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. Ruiz, 131 A.3d 54, 57 (Pa. Super. 2015), quoting

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal 

citations omitted).

In Pennsylvania,

an accused has an absolute right to appeal, P[ennsylvania] 

Constitution, Article V, § 9, and counsel can be faulted for 

allowing that right to be waived unless the accused himself 

effectively waives the right, i.e. for not protecting the accused's 

right in the absence of an effective waiver. This requirement 

that counsel protect the appellate right of an accused extends 

even to circumstances where the appeal is “totally without 

merit.” Commonwealth v. Perry, 346 A.2d 554, 555 (Pa. 

1975). This is not to say counsel must advance baseless claims 

in an appeal; rather, under such circumstances, he must protect 

the accused's right through the procedure enunciated in 

[Anders. See also Perry, supra; Commonwealth v. Baker, 

239 A.2d 201 (Pa. 1968)]. Quite simply, the Anders procedure 

would serve no purpose were we to accept the [Post Conviction 

Hearing Act] court's position [that counsel cannot be deemed 

ineffective for failing to file an appeal where the petition does not 

disclose issues of arguable merit].

Commonwealth v. Wilkerson, 416 A.2d 477, 479 (Pa. 1980) (parallel 

citations omitted); see also Commonwealth v. Reaves, 923 A.2d 119 (Pa. 

2007) (counsel is considered ineffective per se when he fails to file a 

requested direct appeal); Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 
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1999) (defendant entitled to automatic reinstatement of direct appeal rights 

where counsel fails to initiate a requested direct appeal).

In this case, the PCRA court did not apply the foregoing principles of 

law. Instead, the court found that Appellant never requested an appeal, but 

merely inquired as to the “feasibility and viability” of such a filing. See

PCRA Court Opinion, 12/4/15, at 1. Our task here is to determine whether 

the record supports the PCRA court’s finding.

After careful review of the testimony introduced at the PCRA hearing, 

we conclude that the certified record does not support the PCRA court’s 

factual assessment. The record demonstrates that Appellant communicated 

his desire to appeal his judgment of sentence on two occasions. Although 

Appellant’s wishes may have been inarticulately worded and/or poorly 

punctuated, they were sufficient to convey Appellant’s interest in challenging 

his sentence on appeal. Moreover, the record shows that counsel 

acknowledged his awareness of Appellant’s desire to litigate a direct appeal.

Counsel felt free, however, to disregard Appellant’s requests based 

upon his own misapprehension of Pennsylvania law and his apparent lack of 

experience in litigating appeals. See N.T. PCRA Hearing, 12/3/15, at 12 

(counsel admitting that he has never filed a notice of appeal). Counsel 

believed he was under no obligation to file an appeal if there were no 

meritorious issues to raise. Id. at 13. This understanding stands squarely 

at odds with prevailing Pennsylvania law. If counsel believed that an appeal 
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was frivolous, he was duty bound to follow the procedure set forth in 

Anders and its Pennsylvania progeny. Wilkerson, supra. Under this 

procedure, counsel could have filed a statement of intent to file an Anders

brief in lieu of filing a court-ordered concise statement. See Pa.R.A.P. 

1925(c)(4). This procedure has been adopted to preserve appellate review 

of arguably meritorious claims. Id. Counsel’s failure to follow proper 

procedure and the PCRA court’s ruling in this case defeats this goal. In 

short, the record here leads us to conclude that counsel’s misunderstanding 

of applicable law led him to disregard Appellant’s valid request to file a direct 

appeal. For these reasons, we vacate the order denying collateral relief and 

remand this matter with instructions that the PCRA court reinstate 

Appellant’s direct appeal rights. Wilkerson, supra; Reaves, supra;

Lantzy, supra.

Order vacated. Case remanded with instructions. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/28/2016