J-S34022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DANIEL JOSHUA GONZALEZ

Appellant No. 1629 MDA 2015

Appeal from the Order Entered August 24, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No: CP-36-CR-0005599-2013

BEFORE: PANELLA, STABILE, and JENKINS, JJ. 

MEMORANDUM BY STABILE, J.: FILED JUNE 22, 2016

Appellant Daniel Joshua Gonzalez appeals from the August 24, 2015 

order of the Court of Common Pleas of Lancaster County (“PCRA court”), 

denying his petition for collateral relief under the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

The facts and procedural history underlying this case are uncontested. 

As recounted by the PCRA court:

On December 23, 2013, the Commonwealth filed a 

[c]riminal [i]nformation charging Appellant with one count of 

[a]ggravated [a]ssault [(18 Pa.C.S.A. § 2702(a)(1)] and one 

count of [c]riminal [c]onspiracy to commit [a]ggravated 

[a]ssault [(18 Pa.C.S.A. § 903(a))], both felonies of the first 

degree. Those charges arose out of an incident which occurred 

on October 22, 2013, where Appellant and several other 

individuals allegedly punched and kicked Tyron Sheppard 

(“victim”) in the head, rendering him unconscious. Appellant 

then proceeded to bend over and slash the victim’s face and 

neck area with an unknown edged weapon, causing a deep cut 
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to the neck. On June 17, 2014, a jury found Appellant guilty on 

both counts after a two-day trial.

On June 18, 2014, an order was entered directing that a 

[p]re-[s]entence [i]nvestigation (“PSI”) [r]eport be completed. 

On August 25, 2014, a [s]entencing hearing was held before 

th[e trial c]ourt, at which time Appellant was sentenced on 

[c]ount 1 to a period of incarceration of not less than 10 years 

nor more than 20 years. On [c]ount 2, Appellant was sentenced 

to a period of incarceration of not less than 10 years nor more 

than 20 years, to be served consecutively to the sentence 

imposed on [c]ount 1.[FN1] The result was an aggregate 

sentence of not less than 20 years nor more than 40 years’ 

imprisonment in the state correctional institution. 

FN1. These sentences were in accord with the statutory 

maximum sentence of 20 years’ imprisonment for each 

count. See 18 Pa.C.S.A. § 1103.

On August 29, 2014, Appellant’s trial counsel, Christopher 

P. Lyden, Esquire, filed a [p]ost-[s]entence [m]otion, which 

included an assertion that the deadly weapon enhancement 

contained in the sentencing guidelines was unconstitutional 

because it permits a judge and not a jury to determine whether 

a defendant used a deadly weapon during the commission of a 

crime. Trial counsel asserted that Appellant should be resentenced without application of the deadly weapon 

enhancement. On September 16, 2014, the trial court entered 

an order denying Appellant’s [p]ost-[s]entence [m]otion.

On September 30, 2014, Appellant’s trial counsel filed a 

[n]otice of [a]ppeal from the order denying his [p]ost-[s]entence 

[m]otion. On October 6, 2014, trial counsel filed a [s]tatement 

of [m]atters [c]omplained of on [a]ppeal (“Statement”), alleging 

that the trial court erred in failing to find the deadly weapon 

enhancement in the sentencing guidelines unconstitutional 

pursuant to Alleyne v. United States, 133 S. Ct. 2151 (2013) 

and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 

2014), where the jury did not find beyond a reasonable doubt 

the enhancement applied. Counsel asserted Appellant was 

entitled to a new sentencing hearing based on this alleged error.

On October 29, 2014, during the pendency of his direct 

appeal, Appellant filed a pro se PCRA Motion, alleging, inter alia, 

that trial counsel provided ineffective assistance of counsel. 
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Thus, trial counsel sent Appellant a letter dated November 5, 

2014, advising Appellant that he would have to discontinue his 

direct appeal if he wished to pursue a PCRA claim of ineffective 

assistance of counsel at the present time. Appellant thereafter 

signed a [p]raecipe for [d]iscontinuance[1]and mailed it back to 

trial counsel. As a result, trial counsel filed a [p]raecipe with the 

Superior Court of Pennsylvania seeking to withdraw and 

discontinue Appellant’s direct appeal, which was granted on 

November 25, 2014.

On December 3, 2014, the trial court entered an order 

dismissing without prejudice Appellant’s PCRA [m]otion, noting 

that the court lacked jurisdiction over the PCRA [m]otion 

because it was filed during the pendency of a direct appeal. On 

January 15, 2015, Appellant refiled his pro se PCRA [petition], at 

which time R. Russel Pugh, Esquire, was appointed as 

Appellant’s PCRA counsel. On March 17, 2015, PCRA counsel 

filed an [a]mended PCRA [p]etition, alleging Appellant was 

denied his right to a direct appeal from judgment of sentence by 

the ineffective assistance of his trial counsel, who failed to 

explain the legal consequences of the withdrawal and 

discontinuance of his direct appeal. As relief, PCRA counsel was 

requesting reinstatement of Appellant’s direct appeal, nunc pro 

tunc. 

On June 17, 2015, the [PCRA c]ourt conducted an 

evidentiary hearing to address Appellant’s Amended PCRA 

[p]etition.[2] Following the hearing, the record was transcribed 

and the issues were briefed by counsel for both parties. In 

accordance with Pennsylvania Rule of Criminal Procedure 908, 

[the PCRA court] then conducted an independent review of the 

record. On August 24, 2015, the [PCRA c]ourt issued an opinion 

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1 Our review of the record reveals that Appellant did not sign a praecipe but 

rather a motion to discontinue the appeal.

2 At the PCRA hearing, Appellant’s appointed counsel confirmed that 

Appellant would pursue the same claim in a nunc pro tunc direct appeal that 

he raised in his discontinued direct appeal. N.T., PCRA Hearing, 6/17/15 

at 24. That claim was, as noted earlier, whether the trial court erred under 

Alleyne in applying the deadly weapon enhancement pursuant to 204 Pa. 

Code § 303.9. 
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and order dismissing Appellant’s [a]mended PCRA [p]etition, 

finding Appellant failed to meet his burden of proving that trial 

counsel was ineffective or there was any resulting prejudice from 

trial counsel’s withdrawal of Appellant’s direct appeal.

On September 22, 2015, Appellant filed a [n]otice of 

[a]ppeal to the Superior Court of Pennsylvania. A [Rule 1925(b) 

statement] was submitted on October 8, 2015, asserting that 

trial counsel provided ineffective assistance of counsel and the 

lower court erred in denying post-conviction relief where the 

discontinuance by trial counsel of Appellant’s direct appeal 

denied Appellant his right to appeal from judgment of sentence. 

In the alternative, Appellant alleges the Commonwealth did not 

meet its burden of proving a valid waiver by Appellant of his 

right to a direct appeal from judgment of sentence.

PCRA Court Opinion, 10/19/15, at 1-4 (internal record citations and some 

footnotes omitted).

On appeal,3 Appellant repeats the same two arguments. For ease of 

disposition, we combine Appellant’s issues and restate them as follows. 

Whether the PCRA court erred in denying his PCRA petition when his trial 

counsel rendered ineffective assistance by discontinuing Appellant’s direct 

appeal without properly colloquying him on the record to ensure that he 

knowingly and intelligently waived his appeal rights. See Appellant’s Brief 

at 1. 

____________________________________________

3

“In PCRA proceedings, an appellate court’s scope of review is limited by the 

PCRA’s parameters; since most PCRA appeals involve mixed questions of 

fact and law, the standard of review is whether the PCRA court’s findings are 

supported by the record and free of legal error.” Commonwealth v. Pitts, 

981 A.2d 875, 878 (Pa. 2009) (citation omitted).
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A PCRA petitioner is entitled to relief if he pleads and proves that prior 

counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A. 

§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner 

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

underlying legal claim has arguable merit; (2) counsel had no reasonable 

basis for acting or failing to act; and (3) the petitioner suffered resulting 

prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. 

Super. 2015) (en banc). “A petitioner must prove all three factors of the 

‘Pierce[4]test,’ or the claim fails.”5 Id. 

It is settled that

[i]t is beyond cavil that a defendant has an absolute right to 

appeal, Pa. CONST. Art. V, Sec. 9, and the ultimate decision of 

whether to do so must be made by the defendant and not 

counsel. At the same time, it is well settled that a defendant 

may waive the right to appeal, provided such waiver is a 

“knowing and intelligent” act on the part of a defendant. 

Commonwealth v. Dosch, 501 A.2d 667, 670 (Pa. Super. 1985).

____________________________________________

4 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).

5

Prejudice is presumed, however, in situations where counsel is ineffective 

per se. Commonwealth v. Haun, 32 A.23d 697, 700 (Pa. 2011) (quoting 

Commonwealth v. Lantzy, 736 A.2d 564, 570-71 (Pa. 1999)). Generally, 

counsel is ineffective per se if he or she fails to file a requested appeal. 

See Haun, supra; see Commonwealth v. Johnson, 889 A.2d 620, 622 

(Pa. Super. 2005) (noting that a defendant “who is deprived entirely of his 

right of direct appeal . . . is per se without effective assistance of counsel, 

and is entitled to reinstatement of his direct appeal rights.”). The case 

before us does not involve a situation implicating ineffectiveness per se. 
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Because we consider the third Pierce prong, i.e., prejudice, to be 

dispositive of this appeal, we need not determine the first two prongs.6 As 

stated, after Appellant filed a pro se PCRA petition during the pendency of 

his direct appeal, trial counsel sent him a letter advising him to discontinue 

the direct appeal if Appellant wished to pursue the PCRA claims. Eventually, 

Appellant signed a motion to discontinue the appeal, resulting in the 

termination of the appeal. Appellant now asserts that trial counsel was 

ineffective and seeks to have his direct appeal rights restored nunc pro tunc. 

Appellant’s ineffectiveness claim is premised on the argument that trial 

counsel failed to apprise him of the consequences of relinquishing his direct 

appeal rights. To prevail on an effectiveness claim, Appellant must 

demonstrate, inter alia, that he was prejudiced. It is settled that a petitioner 

establishes prejudice by demonstrating that there is a reasonable probability 

that the outcome of the proceedings would have been different but for 

counsel’s action or inaction. Commonwealth v. Hutchinson, 25 A.3d 277, 

285 (Pa. 2011) (citation omitted). Thus, to establish prejudice here, 

Appellant must demonstrate that the issue on direct appeal was meritorious 

and that he would have prevailed but for trial counsel’s ineffective advice 

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6 Although we do not rule on whether Appellant’s ineffectiveness claim has 

arguable merit, we note that the record is bereft of any indication that trial 

counsel advised Appellant of the consequences of terminating his direct 

appeal rights prior to discontinuing the appeal. See Trial Counsel’s Letter, 

11/5/14. 
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regarding termination of direct appeal. To reiterate, the sole issue raised on 

the discontinued direct appeal was whether the trial court had erred under 

Alleyne and related cases in applying the deadly weapon enhancement 

pursuant to 204 Pa. Code § 303.9. We agree with the PCRA court’s 

conclusion that the application of the deadly weapon enhancement does not 

run afoul of the Alleyne line of cases concerning the application of 

mandatory minimum sentences. See Commonwealth v. Buterbaugh, 91 

A.3d 1247, 1270 n.10 (Pa. Super. 2014) (en banc) (noting that Alleyne is 

inapplicable to the use of the deadly weapon enhancement when 

determining a defendant’s sentencing range). As we recently explained in 

Commonwealth v. Ali, 112 A.3d at 1210 (Pa. Super. 2015), appeal 

granted on other grounds, 127 A.3d 1286 (Pa. 2015):

Alleyne has no application to the sentencing 

enhancements at issue in this case. The parameters of Alleyne

are limited to the imposition of mandatory minimum sentences, 

i.e., where a legislature has prescribed a mandatory baseline 

sentence that a trial court must apply if certain conditions are 

met. The sentencing enhancements at issue impose no such 

floor. Rather, the enhancements only direct a sentencing court 

to consider a different range of potential minimum sentences, 

while preserving a trial court’s discretion to fashion an individual 

sentence. By their very character, sentencing enhancements do 

not share the attributes of a mandatory minimum sentence that 

the Supreme Court held to be elements of the offense that must 

be submitted to a jury. The enhancements do not bind a trial 

court to any particular sentencing floor, nor do they compel a 

trial court in any given case to impose a sentence higher than 

the court believes is warranted. They require only that a court 

consider a higher range of possible minimum sentences. Even 

then, the trial court need not sentence within that range; the 

court only must consider it. Thus, even though the triggering 

facts must be found by the judge and not the jury—which is one 
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of the elements of an Apprendi[7]or Alleyne analysis—the 

enhancements that the trial court applied in this case are not 

unconstitutional under Alleyne. 

. . . The enhancements do not bind the trial court to 

impose any particular sentence, nor do they compel the court to 

sentence within the specified range. Indeed, it is well-settled 

that the sentencing guidelines ultimately are only advisory. 

Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002). 

Thus, Alleyne has no application to the enhancements.

Ali, A.3d at 1226. Because Appellant would not have obtained relief on the 

Alleyne issue raised in the discontinued direct appeal, he does not satisfy 

the third Pierce prong—prejudice. In other words, we cannot conclude that 

the discontinuation of Appellant’s direct appeal produced a different result 

than a proper disposition of the direct appeal itself would have produced. 

Accordingly, we conclude that the PCRA court did not err in denying 

Appellant’s PCRA petition seeking reinstatement of his direct appeal rights 

nunc pro tunc. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/22/2016

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7 Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).