COMMONWEALTH OF PENNSYLVANIA v. CLAYTON LEROY LISTON
No. 1159 WDA 2006 2008 PA Super 12 Atlantic: n/a Filed: 1/8/2008
Appeal from the Judgment of Sentence, August 19, 2005, in the Court of Common Pleas of Fayette County Criminal Division at Nos. 1213 and 1231 of 2004
Before: FORD ELLIOTT, P.J., MUSMANNO, ORIE MELVIN, LALLY-GREEN, TODD,* BOWES, GANTMAN, McCAFFERY,* AND DANIELS,* JJ.
Opinion by: FORD ELLIOT, P.J.
We determined this case should be considered by the court sitting en banc to decide what procedure the trial court should follow when faced with a PCRA petition requesting restoration of the petitioner’s appellate rights nunc pro tunc, and also making “other” claims of trial counsel ineffectiveness. We hold that where, as in the case sub judice, the court, on collateral review, grants the petitioner the right to appeal nunc pro tunc, it shall additionally grant the filing of post-sentence motions nunc pro tunc. This will enable the court to establish a record upon which this court may dispose of any ineffectiveness claims on the direct appeal. Such a rule best promotes judicial economy and obviates the need for the petitioner to file a subsequent PCRA petition re-raising the identical claims, frequently resulting in the filing of a second appeal to this court.