remand for an evidentiary hearing in Pennsylvania

2024However, if “the opposing party does not challenge the timeliness of the appeal and the prisoner’s assertion of timeliness is -3- plausible, we may find the appeal timely without remand.” Cooper, 710 A.2d at 79 .

2024“Where, however, the opposing party does not challenge the timeliness of the appeal and the prisoner’s assertion of timeliness is plausible, we may find the appeal timely without remand.” Commonwealth v. Cooper, 710 A.2d 76, 79 (Pa. Super. 1998) (citation omitted).

2022Thus, only where the record clearly establishes that the action or omission of [counsel] was without a reasonable basis should the court resolve the reasonable basis prong absent a remand for an evidentiary hearing as to the strategy of counsel[.] Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003).

2018See Commonwealth v. McGill , 574 Pa. 574 , 832 A.2d 1014 , 1022 (2003) (holding that when the record clearly establishes that the act or omission of trial counsel was without a reasonable basis, this Court may resolve the reasonable basis prong absent a remand for an evidentiary hearing as to counsel's strategy); accord Turner , supra at 849, (holding that no evidentiary hearing is necessary "[w]here the record on appeal clearly shows that there could have been no reasonable basis for a damaging decision or omission by trial counsel").

2005See, e.g., Commonwealth v. Musi, 486 Pa. 102 , 108 n. 4, 404 A.2d 378 , 380 n. 4 (1979) (“Where one seeks to raise a claim of ineffective assistance on direct appeal and an enhanced record is required to support the claim, the proper procedure is to request a remand for an evidentiary hearing.” (citing, inter alia, Hubbard, 472 Pa. at 278 , 372 A.2d at 696 )). 2 With regard to the ambiguity concerning the range of sentences that would qualify for treatment under the exception, see Majority Opinion, op. at 19-20, 880 A.2d at 602, I believe that is preferable to permit the intermediate appellate

2005See, e.g., Commonwealth v. Musi, 486 Pa. 102 , 108 n. 4, 404 A.2d 378 , 380 n. 4 (1979) (“Where one seeks to raise a claim of ineffective assistance on direct appeal and an enhanced record is required to support the claim, the proper procedure is to request a remand for an evidentiary hearing.” (citing, inter alia, Hubbard, 472 Pa. at 278 , 372 A.2d at 696 )). 2 With regard to the ambiguity concerning the range of sentences that would qualify for treatment under the exception, see Majority Opinion, op. at 19-20, 880 A.2d at 602, I believe that is preferable to permit the intermediate appellate

2026See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (noting that, where facts concerning timeliness are in dispute when the defendant invokes the prisoner mailbox rule, a remand for an evidentiary hearing may be warranted).

2022“Where . . . the facts concerning [the] timeliness [of the filing] are in dispute, a remand for an evidentiary hearing may be warranted.” Commonwealth v. Jones, 700 A.2d 423 , 426 n.3 (Pa. 1997).

2018See Commonwealth v. Schultz , 335 Pa.Super. 306 , 484 A.2d 146 , 148 n.4 (1984) (granting new trial rather than evidentiary hearing, where this Court found counsel's actions were unsubstantiated, and a remand for an evidentiary hearing would be a waste of precious judicial time).

2018See Commonwealth v. Schultz , 335 Pa.Super. 306 , 484 A.2d 146 , 148 n.4 (1984) (granting new trial rather than evidentiary hearing, where this Court found counsel's actions were unsubstantiated, and a remand for an evidentiary hearing would be a waste of precious judicial time).

1979Commonwealth v. Wade, 480 Pa. 160 , 389 A.2d 560 (1978); Commonwealth v. Hubbard, 472 Pa. 259 , 372 A.2d 687 (1977); Commonwealth v. Moore, 466 Pa. 510 , 353 A.2d 808 (1976); Commonwealth v. Twiggs, 460 Pa. 105 , 331 A.2d 440 (1975); Commonwealth v. Jackson, 457 Pa. 237 , 324 A.2d 350 (1974). .

1979Commonwealth v. Wade, 480 Pa. 160 , 389 A.2d 560 (1978); Commonwealth v. Hubbard, 472 Pa. 259 , 372 A.2d 687 (1977); Commonwealth v. Moore, 466 Pa. 510 , 353 A.2d 808 (1976); Commonwealth v. Twiggs, 460 Pa. 105 , 331 A.2d 440 (1975); Commonwealth v. Jackson, 457 Pa. 237 , 324 A.2d 350 (1974). .

2020See Jones, 700 A.2d at 426 n.3 (stating that “where ... the facts concerning the timeliness [of the filing] are in dispute, a remand for an evidentiary hearing may be warranted.”); Commonwealth v. Little, 716 A.2d 1287, 1289 (Pa. Super. 1998) (remanding to PCRA court to consider documentary evidence submitted by petitioner to establish timeliness of petition).

2001See Jones, supra at 426 n. 3 (stating that “[w]here ... the facts concerning the timeliness [of the filing] are in dispute, a remand for an evidentiary hearing may be warranted.”); Little, supra at 1289 (remanding to PCRA court to consider documentary evidence submitted by petitioner to establish timeliness of petition).

2019"Where, however, the opposing party does not challenge the timeliness of the appeal and the prisoner's assertion of timeliness is plausible, we may find the appeal timely without remand." Cooper, 710 A.2d at 79 (citation omitted); see also Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super. 2007) (deeming appeal timely based on the date on the notice of appeal and date of receipt three days after the thirty -day period expired).

2019“Where, however, the opposing party does not challenge the timeliness of the appeal and the prisoner’s assertion of timeliness is plausible, we may find the appeal timely without remand.” Cooper, 710 A.2d at 79 (citation omitted); see also Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super. 2007) (deeming appeal timely based on the date on the notice of appeal and date of receipt three days after the thirty-day period expired).

2005See, e.g., Commonwealth v. Musi, 486 Pa. 102 , 108 n. 4, 404 A.2d 378 , 380 n. 4 (1979) (“Where one seeks to raise a claim of ineffective assistance on direct appeal and an enhanced record is required to support the claim, the proper procedure is to request a remand for an evidentiary hearing.” (citing, inter alia, Hubbard, 472 Pa. at 278 , 372 A.2d at 696 )). 2 With regard to the ambiguity concerning the range of sentences that would qualify for treatment under the exception, see Majority Opinion, op. at 19-20, 880 A.2d at 602, I believe that is preferable to permit the intermediate appellate

2005See, e.g., Commonwealth v. Musi, 486 Pa. 102 , 108 n. 4, 404 A.2d 378 , 380 n. 4 (1979) (“Where one seeks to raise a claim of ineffective assistance on direct appeal and an enhanced record is required to support the claim, the proper procedure is to request a remand for an evidentiary hearing.” (citing, inter alia, Hubbard, 472 Pa. at 278 , 372 A.2d at 696 )). 2 With regard to the ambiguity concerning the range of sentences that would qualify for treatment under the exception, see Majority Opinion, op. at 19-20, 880 A.2d at 602, I believe that is preferable to permit the intermediate appellate

2026The petitioner “has the burden to persuade this Court that -9- the PCRA court erred and that such error requires relief.” Commonwealth v. Wholaver, 177 A.3d 136, 144-45 (Pa. 2018).

2024The petitioner “has the burden to persuade this Court that the PCRA court erred and that such error requires relief.” Commonwealth v. Wholaver, 177 A.3d 136 , 144-45 (Pa. 2018).

2005Six of these claims sound only in the ineffective assistance of trial counsel, and a seventh, procedural claim requests a remand for an evidentiary hearing on the issue of ineffective assistance. 6 These claims presumably are subject to deferral for review under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541, et seq., consistently with this Court’s decisions in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 (2002) (claims challenging effective assistance of counsel generally should not be raised on direct appeal, but rather, are to be deferred for collateral review under PCRA

2005Six of these claims sound only in the ineffective assistance of trial counsel, and a seventh, procedural claim requests a remand for an evidentiary hearing on the issue of ineffective assistance. 6 These claims presumably are subject to deferral for review under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541, et seq., consistently with this Court’s decisions in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 (2002) (claims challenging effective assistance of counsel generally should not be raised on direct appeal, but rather, are to be deferred for collateral review under PCRA

2026Our Supreme Court has stated that “[w]here a claimant has failed to prove prejudice as the result of any individual errors, he cannot prevail on a cumulative effect claim unless he demonstrates how the particular cumulation requires a different analysis.” Commonwealth v. Hutchinson, 25 A.3d 277, 318-19 (Pa. 2011) (citation omitted).

2024See 316 A.3d at 97-100 (addressing Subchapter H’s irrebuttable presumption and finding it constitutional); 103-110 (analyzing the Mendoza-Martinez factors to conclude Subchapter H is non-punitive).

2024“Where, however, the facts concerning the timeliness are in dispute, a remand for an evidentiary hearing may be warranted.” Id. n3; see also Smith, 683 A.2d at 282 (“we believe that the most appropriate course of action is a remand . . . [where] an opportunity should be afforded appellant -4- to meet his burden of proof and come forward with evidence . . . as to the date that he deposited his notice of appeal with the prison authorities”).

2024See id.

2023“Our law presumes that a defendant who enters a guilty plea was aware of what he was doing,” and “[h]e bears the burden of proving otherwise.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (citations omitted). -8- The longstanding rule of Pennsylvania law is that a defendant may not challenge his guilty plea by asserting that he lied while under oath, even if he avers that counsel induced the lies.

2022See Digital Commc’ns Warehouse, Inc. v. Allen Invs., LLC, 223 A.3d 278, 287 (Pa. Super. 2019). 4 In their Statement of Questions Involved, the Appellants only raise a claim regarding personal service of Murray and do not include similar claims concerning M Squared or Home Solutions.

2022Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa.Super. 1996).12 ____________________________________________ 12 On April 14, 2022, Appellant filed an application for a remand for an evidentiary hearing based on the discovery of “new evidence.” Specifically, Appellant contends that, after he filed the instant notice of appeal, he sent a letter to prison officials on October 11, 2021, to determine whether he received any legal mail from October 30, 2019, to December 16, 2019.

2021Appellant’s Brief at 1 (suggested answer omitted). -6- In reviewing an appeal from the denial of PCRA relief, “this Court is limited to ascertaining whether the evidence supports the determination of the PCRA court and whether the ruling is free of legal error.” Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).

2018See Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003) (holding that when the record clearly establishes that the act or -2- J-A09037-18 omission of trial counsel was without a reasonable basis, this Court may resolve the reasonable basis prong absent a remand for an evidentiary hearing as to counsel’s strategy); accord Turner, supra at 849 (holding that no evidentiary hearing is necessary “[w]here the record on appeal clearly shows that there could have been no reasonable basis for a damaging decision or omission by trial counsel”).

2018See Commonwealth v. Keaton , 615 Pa. 675 , 45 A.3d 1050 , 1071 (2012) (holding that remand was unnecessary "for further development of [a] record-based claim" where the reasons for the PCRA court's decision were already supported by the existing record).

2018See Commonwealth v. Keaton , 615 Pa. 675 , 45 A.3d 1050 , 1071 (2012) (holding that remand was unnecessary "for further development of [a] record-based claim" where the reasons for the PCRA court's decision were already supported by the existing record).

2017Our Supreme Court has held that “no number of failed [ ] claims may collectively - 29 - J-S29040-17 warrant relief if they fail to do so individually.” Commonwealth v. Spotz, 610 Pa. 17, 146 , 18 A.3d 244, 321 (2011).

2017Our Supreme Court has held that “no number of failed [ ] claims may collectively - 29 - J-S29040-17 warrant relief if they fail to do so individually.” Commonwealth v. Spotz, 610 Pa. 17, 146 , 18 A.3d 244, 321 (2011).