Commonwealth v. Wilkerson (1980)

See Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980) ("[The] requirement that counsel protect the appellate right of an accused extends even to circumstances where the appeal is `totally without merit.'").

In the absence of a valid, i.e., knowing and voluntary, waiver of that right, counsel is required to protect the client's right to a direct appeal even "where the appeal is *293 `totally without merit.'" [1] Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980), quoting Commonwealth v. Perry, 464 Pa. 272, 275 , 346 A.2d 554, 555 (1975).

Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980).

V, § 9; Commonwealth v. Wilkerson, 490 Pa. 296 , 416 A.2d 477, 479 (1980) (“[A]n accused has an absolute right to appeal ... and counsel can be faulted for allowing that right to be waived”).

While acknowledging that “counsel is not required to advance frivolous arguments in an appeal,” Appellant adds that “counsel may still protect his client[’]s appella[te] rights via the procedure outlined in Anders v. California, 386 U.S. 738 , 87 S.CT. 1396, 18 L.Ed. 2d 493 (1961) by advising the court and requesting permission ____________________________________________ 7 The PCRA court entered its opinion on August 20, 2019. -5- J-S12040-20 to withdraw.” Id. (citing Commo…

V, § 9; Commonwealth v. Wilkerson, 490 Pa. 296 , 416 A.2d 477, 479 (1980) (“[A]n accused has an absolute right to appeal '... and counsel can be faulted for allowing that right to be waived”).

Lantzy, 736 A.2d at 572 ; Wilkerson, 416 A.2d at 479 ("[The] requirement that counsel protect the appellate right of an accused extends even to circumstances where the appeal is totally without merit."). [4] Under our rules of statutory construction, we presume that the General Assembly does not intend to enact a law that violates the constitutions of the United States or Pennsylvania.

Additionally, as President Judge McEwen [in his dissent in Lantzy II ] reasoned, since Article V, Section 9 of the Pennsylvania Constitution guarantees a direct appeal as of right, see Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980), a failure to file or perfect such an appeal results in a denial so fundamental as to constitute prejudice per se.

See Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980)(“an accused has an absolute right to appeal, Pa. Constitution, Article V, § 9, and counsel can be faulted for allowing that right to be waived.... ”); Commonwealth v. Hoyman, 385 Pa.Super. 439, 443 , 561 A.2d 756, 758 (1989)(“Once the court has concluded that appellant was denied his right of direct appeal[,] the proper course of conduct would have been to grant appellant leave to file a direct appeal…

Commonwealth v. Wilkerson, 490 Pa. 296, 298 , 416 A.2d 477, 479 (1980).

On appeal, this Court found it was error to deny a defendant's right to appeal from the judgment of sentence. "[A]n accused has an absolute right to appeal, Pa. 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." Id., 385 Pa.Superior Ct. at 444, 561 A.2d at 759 , quoting Commonwealth v. Wilkerso…

Citing to the Constitutional provision cited above the supreme court has stated: [A]n accused has an absolute right to appeal, Pa. Constitution, Article V, Section 9, and counsel can be faulted for allowing that right to be waived unless the accused himself effectively waived the right____ This requirement that counsel protect the appellate right of an accused extends even to circumstances where the appeal is ‘totally without merit.’ Commonwealth v. Wilkerson, 490 Pa. 296 , …

Appellant alleges that trial counsel was ineffective for failing to inform him of his right to appeal his 1964 sentence for robbery and conspiracy. "[A]n accused has an absolute right to appeal, Pa. 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." Commonwealth v. Wilkerson, 490 Pa. 296, 299 …

Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980).

Abstract assertions will not suffice . . . petitioner must be able to demonstrate a specific factual predicate for prejudice caused by alleged errors. . . .") Section 9545(b)(1) of the PCHA even provides: "The petition must state . . . all facts in support of the alleged error on which the petition is based. . . ." Furthermore, we note that: "The burden of establishing the ground upon which post-conviction relief is requested rests upon the person seeking that relief" Common…

See, e.g., Bronson v. Board of Probation and Parole, 421 A.2d 1021, 1024 (Pa. 1980), cert. denied, 450 U.S. 1050 (1981); Commonwealth v. Wilkerson, 416 A.2d 477, 479 (Pa. 1980).

Commonwealth v. Wilkerson, 416 A.2d 477, 479 (Pa. 1980); Commonwealth v. Bronaugh, 670 A.2d 147, 149 (Pa. Super. 1995).

Commonwealth v. Wilkerson, 490 Pa. 296, 298 , 416 A.2d 477, 479 (1980).

Commonwealth v. Wilkerson, 416 A.2d 477, 479 (Pa. 1980); Commonwealth v. Bronaugh, 670 A.2d 147, 149 (Pa. Super. 1995).

Commonwealth v. Wilkerson, 490 Pa. 296, 298 , 416 A.2d 477, 479 (1980).

Commonwealth v. Wilkerson, 416 A.2d 477, 479 (Pa. 1980); see also Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007) (counsel is considered ineffective per se when counsel fails to file a requested direct appeal); Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999) (defendant -4- J.

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. -5- J-S65018-16 1999) (defendant entitled to automatic reinstatement of direct appeal rights where counsel fails to initiate a requested direct appeal).

Under Article V, Section 9 of the Pennsylvania Constitution, “an accused has an absolute right to appeal.” Commonwealth v. Franklin, 823 A.2d 906, 908 (Pa. Super. 2003) (quoting Commonwealth v. Wilkerson, 416 A.2d 477, 479 (Pa. 1980)).

Under Article V, Section 9 of the Pennsylvania Constitution, “an accused has an absolute right to appeal.” Commonwealth v. Franklin, 823 A.2d 906, 908 (Pa.Super.2003) (quoting Commonwealth v. Wilkerson, 490 Pa. 296 , 416 A.2d 477, 479 (1980)).

Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980).

Additionally, as President Judge McEwen reasoned, since Article V, Section 9 of the Pennsylvania Constitution guarantees a direct appeal as of right, see Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980), a failure to file or perfect such an appeal results in a denial so fundamental as to constitute prejudice per se.

Thus, “[w]hen a defendant establishes that counsel’s ineffective assistance denied him entirely his right to a direct appeal, he is entitled to a direct appeal nunc pro tunc without regard to his ability to establish the merit of the issues which he seeks to raise on direct appeal.” Id. at 461 , 555 A.2d at 931 (emphasis in original). *63 In Commonwealth v. Hoyman, 385 Pa.Super. 439, 444 , 561 A.2d 756, 759 (1989), quoting Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.…

Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980).

“An accused has an absolute right to appeal, Pa. Constitution, Article Y, Section 9, and counsel can be faulted for allowing that right to be waived.” Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980).

Commonwealth v. Hertzog, 492 Pa. [632, 639] 425 A.2d 329 [, 333] (1981) (collects cases); Commonwealth v. [Wilkerson], 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980).

Abstract assertions will not suffice ... petitioner must be able to demonstrate a specific factual predicate for prejudice caused by alleged errors....”) Section 9545(b)(1) of the PCHA even provides: “The petition must state ... all facts in support of the alleged error on which the petition is based____” Furthermore, we note that: “The burden of establishing the ground upon which post-conviction relief is requested rests upon the person seeking that relief” Commonwealth v. …

See: Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980); Commonwealth v. Smith, 478 Pa. 76, 80 , 385 A.2d 1320, 1322-1323 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 277-278 , 372 A.2d 687, 695-696 (1977); Commonwealth v. Vasquez, 268 Pa. Super. 295, 297 , 408 A.2d 154, 155 (1979).

Commonwealth v. Hertzog, 492 Pa. 630 -32, *537 425 A.2d 329 -33 (1981) (collects cases); Commonwealth v. Wilkinson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980). 3 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. 4 Commonwealth v. Mika, 277 Pa.Super. 339 , 419 A.2d 1172, 1173 (1980).

See also Commonwealth v. Wilkerson, 490 Pa. 296, 303 , 416 A.2d 477, 481 (1980) (Larsen, J., dissenting) (finding Anders inapplicable to PCHA appeal).

See Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980) (ruling that counsel will be considered ineffective for failing to raise an issue in a post-verdict motion or on appeal "only if the issue is of arguable merit"); Commonwealth v. Walley, 396 A.2d 1280 , 1283 n.6 (holding that "[c]ounsel's stewardship cannot be deemed ineffective for failure to file futile motions") Jameson is not entitled to a different sentence than the one imposed because it was not…

See also, Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980).

See also, Commonwealth v. Wilkerson, 490 Pa. 296, 299 , 416 A.2d 477, 479 (1980).

See Commonwealth v. Wilkerson, 416 A.2d 477, 499 (Pa. 1980) (holding an accused has an absolute right to appeal and counsel can be faulted for allowing that right to be waived). -6- J-S47024-24 In Rosado, our Supreme Court addressed the situation of whether appellate counsel’s decision to abandon three of the claims preserved for appeal and instead raise an unpreserved sufficiency challenge constituted ineffectiveness per se.

See Commonwealth v. Wilkerson, 416 A.2d 477, 479 (Pa. 1980); see also, Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super.