Commonwealth v. Chester, 2017 PA Super 154 (5/19/17)
After Mr. Chester was placed on probation, he was violated for a new conviction. Dissatisfied with his sentence for the violation, he asked counsel to file a motion for reconsideration and if that failed, an appeal, but counsel filed an untimely motion to reconsider sentence. The judge denied the motion, but the denial was not reflected on the docket. A direct appeal was filed. Two years later he filed a PCRA petition, appointed counsel filed an amended petition, and it was dismissed pursuant to Pa.RCrim.Pro. 907, allowing dismissal without a hearing. Mr. Chester filed a direct appeal. His attorney did not file a 1925(b) statement. In his brief he raised (1) was it error to dismiss the petition without a hearing, and (2) did the court err in not finding violation counsel ineffective.
The Superior Court excused the failure to file a 1925(b) statement because the docket failed to reflect it had been served. (What is it with the Philadelphia Clerk of Courts?) On the issue of not granting a hearing, Mr. Chester had invoked the newly-discovered fact exception set forth at 42 Pa.C.S. § 9545(b)(1)(ii), and contended that his counsel abandoned him by failing to file a timely direct appeal. Mr. Chester had correspondence from counsel proving that counsel knew of the request for an appeal and had mishandled it, and that he had filed his PCRA petition within 60 days of getting an idea his counsel had messed up. Under these circumstances, he was entitled to a hearing to show that he could not discover the mistake his counsel made within the one year limit for filing PCRA petitions.