J-S71045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 HENRY L. BAYNARD,                       :
                                         :
                   Appellant             :   No. 3166 EDA 2017

              Appeal from the PCRA Order September 19, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0002607-2013,
            CP-51-CR-0002609-2013, CP-51-CR-0002612-2013,
            CP-51-CR-0002615-2013, CP-51-CR-0002811-2013,
            CP-51-CR-0002813-2013, CP-51-CR-0002817-2013,
            CP-51-CR-0002818-2013, CP-51-CR-0002821-2013,
            CP-51-CR-0002822-2013, CP-51-CR-0002846-2013,
            CP-51-CR-0002848-2013, CP-51-CR-0002849-2013,
            CP-51-CR-0002851-2013, CP-51-CR-0002854-2013,
            CP-51-CR-0002856-2013, CP-51-CR-0002860-2013,
            CP-51-CR-0002865-2013, CP-51-CR-0002867-2013,
            CP-51-CR-0002869-2013, CP-51-CR-0002872-2013,
            CP-51-CR-0002875-2013, CP-51-CR-0002886-2013,
                          CP-51-CR-0002889-2013


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                           FILED APRIL 16, 2019

      Appellant Henry L. Baynard appeals from the order denying his first

timely petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. Appellant argues that the PCRA court erred in denying relief

on his ineffective assistance of counsel claim. We affirm.

      The PCRA court summarized the relevant procedural history of this case

as follows:
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     On October 27, 2013, Appellant entered open guilty pleas to
     twenty-four counts of robbery that were graded as felonies in the
     first degree (18 Pa.C.S. § 3701), twenty-four counts of conspiracy
     that were graded as felonies in the first degree (18 Pa.C.S. § 903),
     twenty-four counts of carrying a firearm without a license that
     were graded as felonies in the third degree (18 Pa.C.S. § 6106),
     twenty-four counts of carrying a firearm on the public streets of
     Philadelphia that were graded as misdemeanors in the third
     degree (18 Pa.C.S. § 6108), twenty-four counts of possessing an
     instrument of crime that were graded as misdemeanors in the first
     degree (18 Pa.C.S. § 907), and eight counts of aggravated assault
     that were graded as felonies in the first degree (18 Pa.C.S. §
     2702). Appellant’s charges stemmed from a veritable crime spree
     lasting between August 21 and October 1, 2012.

                                    ***

     After Appellant entered his pleas, [the trial court] sentenced him
     [on October 27, 2014,] to an aggregate term of sixteen (16) to
     thirty-two (32) years’ incarceration.           Immediately after
     sentencing, Mr. [Perry] de Marco [(trial counsel)] asked Appellant
     on the record whether he intended to file post-sentence motions
     and/or a direct appeal. . .

        [Trial counsel]: [Appellant], judgment of sentence has been
        entered by the [c]ourt. The aggregate term is 16 to 32
        years, credit for time served. Do you understand?

        [Appellant]: Yes.

        [Trial counsel]: As we discussed previously, you have ten
        days from today’s date in writing to ask [the trial court] to
        reconsider the imposed sentence. Motion must be done in
        writing. If you can’t afford counsel, counsel will be provided
        to you. Do you understand? There is nothing for [the trial
        court] to reconsider, however. You could ask [the trial
        court] to lower the sentence but in light of prior discussions,
        I don’t think that’s very likely. You can direct an appeal to
        the Superior Court. Those are limited grounds we also
        discussed in the booth downstairs, and [the trial court] gave
        in the colloquy. Do you understand?

        [Appellant]: Yes.



                                     -2-
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        [Trial counsel]: As you stand before [the trial court], do you
        have any intention to file those post sentence motions or an
        appeal?

        [Appellant]: No.

     Consistent with his on-the-record statements, Appellant filed
     neither a post-sentence motion nor a direct appeal. However, on
     October 21, 2015, Appellant filed a timely pro se petition under
     the PCRA. Appellant subsequently was appointed counsel, who
     filed an amended petition on July 8, 2016, alleging that Appellant’s
     [trial] counsel failed to file a requested direct appeal and a
     requested post-sentence motion. Appellant alleged:

        [Appellant’s] trial counsel was ineffective because he failed
        to file a post sentence motion, and appeal from the
        judgment of sentence in the above matter when requested
        to do so by the defendant after being sentenced. As a result
        of this[, Appellant] lost his state constitutional right to
        appeal the judgment of sentence in the above matter.
        [Appellant] has not waived this issue because it is the first
        opportunity he has to raise it and his post-sentence rights
        from the judgment of this court should be reinstated nunc
        pro tunc.

     On September 1, 2016, the Commonwealth filed a motion to
     dismiss Appellant’s petition. On September 19, 2017, after
     several continuances, [the PCRA court] conducted an evidentiary
     hearing on Appellant’s claims. Appellant testified at the hearing
     that he did not request his plea counsel to file a direct appeal, but
     requested counsel to file only a motion to reconsider his
     sentence[.]

                                    ***

     Appellant further testified that he requested [trial counsel] to file
     a post-sentence motion while they were still in the courtroom
     sitting at the defense table.

     [Trial counsel] as well testified at the evidentiary hearing.
     Consistent with the notes of testimony from the plea hearing, [trial
     counsel] testified that Appellant never asked him to file a direct
     appeal or a post-sentence motion[.]




                                     -3-
J-S71045-18



                                          ***

       At the conclusion of the hearing, [the PCRA court] determined that
       [trial counsel] credibly testified that Appellant never requested
       him to file a post-sentence motion or a direct appeal, and
       therefore dismissed Appellant’s PCRA petition.

PCRA Ct. Op., 5/8/18, at 3-4.

       Appellant timely filed a notice of appeal1 and a court-ordered Pa.R.A.P.

1925(b) statement.2 The PCRA court filed a responsive Rule 1925(a) opinion

concluding that Appellant was not entitled to relief.
____________________________________________


1  Appellant filed one notice of appeal that listed all twenty-four docket
numbers. On October 5, 2017, this Court issued a rule to show cause as to
why the appeal should not be quashed. See Commonwealth v. C.M.K., 932
A.2d 111 (Pa. Super. 2007) (holding that quashal is appropriate where a single
notice of appeal is taken from two judgments of sentence imposed on co-
defendants who were convicted and sentenced individually on different
charges); see also Pa.R.A.P. 341, Note (stating that where one order resolves
issues arising on more than one docket, separate notices of appeal must be
filed.) Appellant filed a timely response indicating that he was not appealing
jointly with his co-defendant, and that he filed one notice of appeal because
his sole appellate issue was identical across all twenty-four docket numbers.
Thereafter, the matter was referred to this panel for consideration. On June
1, 2018, the Pennsylvania Supreme Court, in Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018), held that “separate notices of appeal must be filed
when a single order resolves issues arising on more than one lower court
docket,” and “the failure to do so will result in quashal of the appeal.” See
id. at 977 (footnote omitted). However, the Court announced its holding was
prospective only, and therefore, we need not quash the present appeal, as it
was pending at the time Walker was filed. See id. at 971.

2 Appellant’s Rule 1925(b) statement included the following issues: (1) trial
counsel was ineffective for failing to file a motion to withdraw Appellant’s guilty
pleas when requested by Appellant; (2) trial counsel was ineffective for failing
to file a motion for reconsideration when requested to do so by Appellant; (3)
Appellant’s guilty pleas were not knowing, intelligent, and voluntary; (4) the
trial court erred in denying Appellant’s request to file a motion to withdraw his



                                           -4-
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       Appellant raises one question on appeal: “Did the [PCRA] court err in

not reinstating Appellant’s post-sentence rights due to ineffectiveness of trial

defense counsel who failed to discuss Appellant’s post-sentence rights with

the Appellant after his sentence?” Appellant’s Brief at 2.

       At the outset, we note that Appellant, in his PCRA petition, claimed that

trial counsel was ineffective for disregarding his request to have post-

sentence motions and a direct appeal filed. On appeal, however, Appellant

does not argue that trial counsel disregarded his request.3 Instead, Appellant

claims that trial counsel was ineffective for failing to consult with him as to

whether he wished to file a post-sentence motion or direct appeal.4

Appellant’s Brief at 6.

       Specifically, in his brief to this Court, Appellant now contends that prior

to entering an open guilty plea, he informed trial counsel that he was looking


____________________________________________


guilty pleas nunc pro tunc; and (5) the trial court erred in denying Appellant’s
request to file a motion for reconsideration nunc pro tunc. See Appellant’s
Rule 1925(b) Statement, 12/28/17, at 1-2.
3 Had Appellant raised this claim on appeal, we would find it meritless. At the

PCRA hearing, both Appellant and trial counsel testified regarding Appellant’s
alleged request for a direct appeal. However, the PCRA court found trial
counsel’s testimony credible, and concluded that Appellant did not request
that counsel file a post-sentence motion or a direct appeal. Therefore,
Appellant would be unentitled to relief on his claim.

Therefore, we are bound by the PCRA court’s credibility determinations, which
are supported by the record. See Commonwealth v. Mitchell, 105 A.3d
1257, 1265 (Pa. 2014) (citation omitted).

4 We add that the Commonwealth argued that Appellant waived this issue by
failing to raise it in his PCRA petition. Commonwealth’s Brief at 8.

                                           -5-
J-S71045-18



for a sentence of ten to twenty years’ incarceration. Id. Appellant argues

that when the trial court imposed a greater sentence of sixteen to thirty-two

years’ incarceration, counsel was already “on notice” that Appellant was

dissatisfied with the court’s sentence. Id. According to Appellant, counsel,

therefore, should have advised him about the pros and cons of proceeding

with post-sentence motions or a direct appeal to challenge the discretionary

aspects of the sentence. Id. at 6-7.

      However, a claim that counsel was ineffective for failing to file an appeal

when requested by the defendant is distinct from a claim that counsel was

ineffective for failing to consult with a defendant. Compare Commonwealth

v. Lantzy, 736 A.2d 564, 571 (Pa. 1999) (discussing claims that counsel

abandoned a defendant by failing to file a requested direct appeal);

Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa. Super. 2011) (same);

Commonwealth v. Maynard, 900 A.2d 395, 398 (Pa. Super. 2006) (same)

with Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000) (discussing claims

that counsel failed to consult with a defendant); Markowitz, 32 A.3d at 714

(same); Commonwealth v. Touw, 781 A.2d 1250, 1254 (Pa. Super. 2001)

(same).    Therefore, because Appellant failed to raise his claim that trial

counsel was ineffective for failing to consult in his PCRA petition, that claim is

waived on appeal. See Pa.R.A.P. 302(a); Pa.R.Crim.P. 902(B) (stating that

the “[f]ailure to state such a ground [for relief] in the [PCRA] petition shall

preclude the defendant from raising that ground in any proceeding for post-

conviction collateral relief”).

                                       -6-
J-S71045-18



      Even if Appellant properly preserved his claim, he would not be entitled

to relief. Our standard of review from the denial of a PCRA petition “is limited

to examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA

court’s credibility determinations, when supported by the record, are binding

on this Court; however, we apply a de novo standard of review to the PCRA

court’s legal conclusions.” Mitchell, 105 A.3d at 1265 (citation omitted).

      “A criminal defendant has the right to effective counsel during a plea

process as well as during trial.” Commonwealth v. Rathfon, 899 A.2d 365,

369 (Pa. Super. 2006) (citations omitted). To establish a claim of ineffective

assistance of counsel, a defendant “must show, by a preponderance of the

evidence, ineffective assistance of counsel which, in the circumstances of the

particular case, so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.” Commonwealth

v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). Counsel

is presumed to be effective, and the burden is on the defendant to prove all

three of the following prongs: “(1) the underlying claim is of arguable merit;

(2) that counsel had no reasonable strategic basis for his or her action or

inaction; and (3) but for the errors and omissions of counsel, there is a

reasonable probability that the outcome of the proceedings would have been

different.” Id. (citation omitted); see Commonwealth v. Daniels, 963 A.2d

409, 419 (Pa. 2009).

                                     -7-
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      When a defendant does not explicitly instruct counsel to file a direct

appeal, counsel may still be found ineffective if counsel does not consult with

the defendant about his appellate rights. Flores-Ortega, 528 U.S. at 480

(2000); Markowitz, 32 A.3d at 714. However, counsel has a constitutionally

imposed duty to consult only when “there is reason to think either (1) that a

rational defendant would want to appeal, or (2) that this particular defendant

reasonably demonstrated to counsel that he was interested in appealing. In

making this determination, courts must take into account all the information

counsel knew or should have known.”         Flores-Ortega, 528 U.S. at 480

(citation omitted).

      “Where a petitioner can prove either factor, he establishes that his claim

has arguable merit.” Markowitz, 32 A.3d at 716. However, “[a] deficient

failure on the part of counsel to consult with the defendant does not

automatically entitle the defendant to reinstatement of his or her appellate

rights; the defendant must show prejudice.”        Touw, 781 A.2d at 1254

(holding that a claim that counsel failed to consult with a defendant about an

appeal “does not fit within the [per se ineffectiveness] rule articulated” in

Lantzy).   “[T]o show prejudice in these circumstances, a defendant must

demonstrate that there is a reasonable probability that, but for counsel’s

deficient failure to consult with him about an appeal, he would have timely

appealed.” Id. (quoting Flores-Ortega, 528 U.S. at 484).

      Here, Appellant did not establish, as he must, that “had [he] received

reasonable advice from counsel about the appeal, he would have instructed

                                     -8-
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his counsel to file an appeal.” See Flores-Ortega, 528 U.S. at 487; see also

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995) (stating that

where an appellant fails to meet the prejudice prong of the ineffectiveness

standard, we may dismiss the claim on that basis alone). Moreover, to the

extent that Appellant may have intended to raise this issue at the PCRA level,

he did not develop the claim when provided with an opportunity to do so at

the evidentiary hearing.       Indeed, Appellant’s trial counsel’s testimony was

limited to resolving whether Appellant specifically requested that he file a

direct appeal.5 See N.T. PCRA Hr’g, 9/19/17, at 13. Therefore, Appellant

cannot establish trial counsel’s ineffectiveness based on counsel’s alleged

failure to consult with Appellant regarding a post-sentence motion or a direct

appeal.6 See Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016)

(stating that counsel is presumed effective, and a petitioner “must advance

sufficient evidence to overcome [that] presumption” in order to succeed on an

ineffectiveness claim).

       Order affirmed.




____________________________________________


5The PCRA court determined that trial counsel testified credibly that Appellant
did not request either a post-sentence motion or a direct appeal.

6 As indicated previously, Appellant’s argument at the PCRA hearing was that
he requested a direct appeal and counsel failed to file it. Accordingly,
Appellant only sought to elicit testimony from counsel regarding that specific
claim. Appellant did not question counsel regarding his alleged failure to
consult with him about filing a direct appeal.

                                           -9-
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/19




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