Commonwealth v. Faiola

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order Entered February 8, 2021 In the Court of Common Pleas of Schuylkill County Criminal Division at No: CP-54-CR-0000261-2019

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E. ^[*]

MEMORANDUM

MURRAY, J.

Anthony Faiola (Appellant) appeals from the order denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we vacate and remand so that Appellant shall have an opportunity to appeal nunc pro tunc.

On June 14, 2019, a jury convicted Appellant of corruption of minors, indecent assault, and endangering the welfare of a child.^[1] On July 31, 2019, the trial court sentenced Appellant to an aggregate 2½ to 10 years in prison. On August 29, 2019, the Commonwealth filed a motion to amend the sentencing order due to a clerical error in the original order. The

Commonwealth averred that Appellant's sentence should have been entered

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as an aggregate 2½ to 5 years in prison, as stated on the record during sentencing. Motion to Amend Sentencing Order, 8/29/19, at ¶¶3-4; see also N.T., 7/31/19, at 26 ("So it's 2 and a half to 5 years."). The trial court granted the Commonwealth's motion, and issued an amended sentencing order on September 3, 2019.

Appellant did not file post-sentence motions, but filed a notice of appeal docketed at No. 1502 MDA 2019 on September 16, 2019. The trial court issued a Pa.R.A.P. 1925(b) order on September 17, 2019. However, prior to Appellant filing his Pa.R.A.P. 1925(b) statement, on October 8, 2019, this Court issued a rule to show cause "why the above-captioned appeal should not be quashed as untimely . . . ." Order, 10/8/19. Appellant filed a timely response stating that although he filed his notice of appeal more than 30 days after the original sentencing order, the trial court's "acceptance of Appellant's Notice of Appeal and the issuance of an Order requesting a Concise Statement provided undersigned counsel with the ongoing belief that proceeding with the appeal was sanctioned by the lower court[.]" Response to Order, 10/10/19. This Court, apparently unaware of the amended judgment of sentence, concluded Appellant's response "did not present legal argument to justify this Court's jurisdiction," and in a per curiam order, quashed Appellant's appeal as untimely. See Order, 10/22/19.

On August 20, 2020, Appellant, through counsel, filed the underlying PCRA petition. The PCRA court held a hearing on November 5, 2020, and

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issued an order denying Appellant's petition on February 8, 2021. Appellant timely appealed. He presents a single issue for review:

Whether the trial court erred in denying Appellant Faiola's Post-Conviction Relief Act Petition for a claim of ineffective assistance of counsel for trial counsel's failure to object to the presence of the jury during the competency hearing of the minor witness/victim

Appellant's Brief at 5.^[2]

Before we address Appellant's substantive claim, we consider the quashal of Appellant's direct appeal. Although the parties do not address the timeliness of the appeal in their briefs, we may consider the...