J-A12045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    MITCHELL E. MONAGHAN                          :
                                                  :
                       Appellant                  :   No. 161 WDA 2020


             Appeal from the PCRA Order Entered January 8, 2020,
              in the Court of Common Pleas of Jefferson County,
             Criminal Division at No(s): CP-33-CR-0000419-2009.


BEFORE:      KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                                    FILED JULY 07, 2020

        Mitchell E. Monaghan appeals from the order denying his first petition

filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546.

We affirm.

        The pertinent facts and procedural history may be summarized as

follows. On May 5, 2010, Monaghan entered a guilty plea to the possession

with intent to deliver cocaine and heroin.            That same day, the trial court

imposed a sentence of 2½ to 5 years of imprisonment and a consecutive

three-year     probationary     term.          Monaghan   was    paroled   from   state



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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incarceration in April of 2011.1 Monaghan committed new crimes in 2012,

which resulted in the revocation of his parole, and he was recommitted for

twenty-four months.

        Monaghan was reparoled in August of 2014. His maximum sentence of

incarceration expired in November 2016, and he began serving his three years

of probation. On January 23, 2017, the county adult probation department

filed a notice of a Gagnon I hearing,2 based on an incident of domestic

violence that occurred approximately two weeks earlier. Although the charges

originally filed as a result of this incident were withdrawn, the trial court found

probable cause to revoke based upon technical violations, and scheduled a

Gagnon II hearing. Although Monaghan held been represented by a county

public defender to this point, the public defender’s office withdrew. Monaghan

appeared with privately-retained counsel (“revocation counsel”) at the hearing

held on February 15, 2017. At the hearing, Monaghan admitted the violations,

but the trial court still heard testimony from Monaghan’s state parole agent,

as well as Monaghan’s girlfriend and her sister.

        After hearing this testimony, the trial court found that Monaghan

violated his probation.       The trial court requested an updated presentence


____________________________________________


1 The facts regarding Monaghan’s state parole history are taken from his
parole agent’s testimony at a hearing held on February 15, 2017. See N.T.,
2/15/17, at 7-8.

2   Gagnon v. Scarpelli, 411 U.S. 778 (1973).


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report and continued the hearing to another date. On March 1, 2017, the

hearing reconvened and the trial court heard argument from revocation

counsel and Monaghan made a statement to the court.             Although adult

probation recommended a minimum sentence of 7½ years, the trial court

imposed a new sentence of 4 to 15 years of imprisonment.

       Although he never entered his appearance, Attorney David Shrager, who

was hired by Monaghan’s family, filed a timely post-sentence motion for

reconsideration, which the trial court denied by order entered March 13, 2017.

Monaghan did not file a direct appeal.

       On December 18, 2017, Monaghan filed a pro se PCRA petition in which

he asserted, inter alia, that revocation counsel “rendered ineffective

assistance of counsel for failing to advise, consult or make a reasonable effort

to discuss with [him] his right to appeal.” PCRA Petition, 12/18/17, at 3. The

PCRA court appointed counsel. Monaghan was reparoled in May 2018.3

       On August 19, 2019, PCRA counsel filed a motion for an evidentiary

hearing.4 On October 11, 2019, the PCRA court held an evidentiary hearing

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3See N.T., 10/11/19, at 12 (Monaghan testifies he served eighteen months
before being reparoled).

4Although it appears that PCRA counsel successfully sought an order from the
court requiring revocation counsel to return Monaghan’s file, there is no other
explanation for the almost two-year delay between Monaghan’s filing of his
pro se PCRA petition, and PCRA counsel’s request for an evidentiary hearing.
Our Supreme Court has made clear that “[t]he PCRA court [has] the ability
and responsibility to manage its docket and caseload and thus has an essential



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at which both Monaghan and revocation counsel testified. By order entered

January 8, 2020, the PCRA court denied Monaghan’s PCRA petition.                 This

timely appeal followed. Both Monaghan and the PCRA court have complied

with Pa.R.A.P. 1925.

       Monaghan now raises the following issue:

          1. Did the [PCRA] court err in denying [Monaghan’s] PCRA
             petition when the court failed to find that [revocation
             counsel] was ineffective for failing to consult with [him]
             in a meaningful way subsequent to [the] imposition of
             [the] revocation sentence . . . as to the advantages and
             disadvantages of taking a direct appeal[?]

Monaghan’s Brief at 4.

       Under the applicable standard of review, we determine whether the

ruling of the PCRA court is supported by the record and is free of legal error.

The PCRA court’s factual findings will not be disturbed unless there is no

support for the findings in the certified record. Commonwealth v. Barndt,

74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted). We apply a de

novo    standard     of   review     to   the    PCRA   court’s   legal   conclusions.

Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014).

       Our scope and standard of review is well settled:

          In PCRA appeals, our scope of review is limited to the
          findings of the PCRA court and the evidence on the record
          of the PCRA court's hearing, viewed in the light most
          favorable to the prevailing party. Because most PCRA

____________________________________________


role in ensuring the timely resolution of PCRA matters.” Commonwealth v.
Renchenski, 52 A.3d 251, 260 (Pa. 2012) (citation omitted).


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           appeals involve questions of fact and law, we employ a
           mixed standard of review. We defer to the PCRA court's
           factual findings and credibility determinations supported by
           the record. In contrast, we review the PCRA court's legal
           conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

         Monaghan’s claim alleges the ineffective assistance of revocation

counsel. To obtain relief under the PCRA premised on a claim that counsel

was ineffective, a petitioner must establish by a preponderance of the

evidence that counsel’s ineffectiveness so undermined the truth determining

process that no reliable adjudication of guilt or innocence could have taken

place.     Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).

“Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Id. This requires the petitioner to demonstrate

that:     (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) petitioner

was prejudiced by counsel's act or omission.            Id. at 533.      A finding of

"prejudice" requires the petitioner to show "that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different." Id. A failure to satisfy any prong of

the     test   for   ineffectiveness   will   require   rejection   of   the   claim.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).




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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.    Commonwealth v. Touw, 781

A.2d 1250 (Pa. Super. 2001). In Touw, this Court recognized that in Roe v.

Flores-Ortega, 528 U.S. 470 (2000), “the United States Supreme Court

defined “consult” as “advising the defendant about the advantages and

disadvantages of taking an appeal, and making a reasonable effort to discover

the defendant’s wishes.” Touw, 781 A.2d at 1254 (citing Flores-Ortega,

528 U.S. at 478)). We then cited the following from Flores-Ortega:

         [C]ounsel has a constitutionally-imposed duty to consult
         with the defendant about an appeal 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.

Touw, 781 A.2d at 1254 (citing Flores-Ortega, 528 U.S. at 480)).

      “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.” Touw, 781 A.2d at 1254. As we noted, the High Court in

Flores-Ortega held that, in order “to 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.” Touw, 781 A.2d at 1254 (citing Flores-Ortega, 528

U.S. at 484)).

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     Here, the PCRA court summarized its factual findings given the

testimony from the evidentiary hearing as follows:

           In his discussions with Monaghan prior to sentencing,
        [revocation counsel], explained that the [trial court] had
        broad sentencing discretion. The result, he advised, could
        be anywhere between a time-served sentence and one
        ending with a 15-year maximum.              Monaghan was
        nonetheless unprepared for the latter and was stunned
        when the [trial court] ordered him to prison for 4-15 years.
        His only comment to [revocation counsel] before leaving the
        courtroom, though, was that the sentence was harsh.
        [Revocation counsel] agreed but indicated that there was
        nothing he could do about it.

           [Revocation counsel] and Monaghan spoke again that
        afternoon, but the subject of an appeal was not broached.
        [Revocation counsel, Monaghan] said, was only concerned
        with getting paid and walked away upon learning that
        [Monaghan] did not have the money to compensate him for
        his appearance that day. [Revocation counsel], meanwhile,
        could not recall the substance of their post-hearing
        conversation but knew Monaghan’s rendition did not
        comport with his general practice. Monaghan, in any event,
        knew he could appeal the sentence but did not indicate that
        he wanted to so, and [revocation counsel], who well
        understood the deference afforded to sentencing judges and
        had conveyed as much to [Monaghan], had no intention of
        pursuing post-sentence motions or an appeal.

           His own intentions notwithstanding, [revocation counsel]
        knew within days that [Attorney David Shrager] was in the
        process     of   preparing    post-sentence    motions     on
        [Monaghan’s] behalf. He even supplied documentation to
        assist his colleague in that endeavor but, as was his habit,
        did not withdraw his own appearance. Meanwhile, although
        [Attorney] Shrager filed post-sentence motions for
        [Monaghan] on March 10, 2019, he did not make himself
        attorney of record and did not file a direct appeal after the
        post-sentence motion proved unsuccessful.

           Monaghan was far from ignorant of the procedural path
        his case was taking. He had spoken with members of his


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        family and knew they had retained [Attorney Shrager] “for
        the appeal.”    [Monaghan] did not communicate with
        [Attorney] Shrager directly at any point, though, and when
        he received a copy of the [trial court’s] order denying his
        post-sentence motions, he did not reach out to either
        [Attorney] Shrager or [revocation counsel] about a direct
        appeal.

PCRA Court Opinion, 18/20, at 1-2.

     Monaghan asserts that “under the above circumstances there would be

reason to believe that [revocation counsel] was aware [he] would want to file

a motion to modify sentence, and that [he] would, assuming that motion were

denied, want to file a direct appeal from the revocation sentence imposed by

the court attacking the discretionary aspects of that revocation sentence.”

Monaghan’s Brief at 10.

     The PCRA court found no merit to this claim. Given its factual findings,

the PCRA court concluded that Monaghan did not prove prejudice because the

“duty” required of revocation counsel by Touw and Flores-Ortega, “never

attached.” Id. at 3. The court explained:

            This was not a case where a defendant stood before the
        court with little understanding of what might happen next.
        Rather, Monaghan knew from discussions with [revocation
        counsel] that sentencing was entirely at the [trial court’s]
        discretion and that it had the authority to exercise its
        discretion anywhere within the pendulum of no sanction to
        a maximum term of imprisonment. He also knew he had
        the right to appeal any sentence the [trial court] imposed.
        As far as the record reflects, however, he did not indicate
        ahead of time that he wanted to take an appeal if it was the
        latter, while there is no question that he did not request an
        appeal afterward.

           Under the circumstances, moreover, [revocation
        counsel] had little reason to think he needed to initiate a

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        post-sentence, appeal-specific conversation. Though he
        knew ahead of time what could happen, Monaghan did not
        say, “I want to appeal if I get more than . . .,” and when
        [revocation counsel] said there was nothing he could do
        about what [Monaghan] characterized as a “harsh”
        sentence, Monaghan again said nothing about wanting to
        appeal. What both knew, though, was that the minimum
        could have been 7½ years and that Monaghan would be
        eligible for parole in less than a year. That being the case,
        it would be disingenuous to say that [Monaghan’s] silence
        should have given [revocation counsel] notice that he
        wanted to appeal.

           Even assuming there was a level of unreasonableness in
        [revocation counsel’s] failure to consult with Monaghan, his
        duty under Touw was fully discharged after he learned first-
        hand that [Attorney] Shrager was going to further pursue
        the matter. [Revocation counsel] surely realized at that
        point that [Monaghan] did in fact want to explore his post-
        sentencing options.       In light of [Attorney] Shrager’s
        involvement, and having not heard from Monaghan since
        the date of sentencing, however, there was no cause for
        [revocation counsel] to conclude that he needed to go back
        and ascertain whether [Monaghan] wanted to file a direct
        appeal. Whereas Monaghan understood from what his
        family told him that [Attorney] Shrager was engaged for
        “the appeal,” moreover the [the PCRA court] can reasonably
        conclude that [Monaghan] did not even expect [revocation
        counsel] to file one for him.

           Though the [PCRA court] does not question the veracity
        of Monaghan’s assertion that he wanted to file a direct
        appeal, therefore, his own silence after sentencing, coupled
        with his consent to [Attorney] Shrager’s involvement,
        defeats his claim that [revocation counsel] was ineffective
        for failing to consult with him regarding the advantages and
        disadvantages of going that route.

PCRA Court Opinion, 1/8/20, at 3-4.

     Our review supports the PCRA court’s conclusion. In short, the PCRA

court found that Monaghan was aware of his right to appeal, along with its



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advantages and disadvantages prior to the imposition of his revocation

sentence.     We    cannot   disturb    this    credibility   determination.   See

Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999)

(explaining that when a PCRA court’s determination of credibility is supported

by the record, it cannot be disturbed on appeal).

      In arguing to the contrary, Monaghan assails the PCRA court’s placing

“great weight” on the fact that Attorney Shrager filed a post-sentence motion

on his behalf, since revocation counsel remained his attorney of record.

Monaghan’s Brief at 14.      Although revocation counsel never withdrew his

appearance as attorney of record, and Attorney Shrager did not enter his

appearance before filing the post-sentence motion—in which Monaghan

challenged his sentence as excessive—given the unique facts of this case, we

agree with the PCRA court that Monaghan could not establish prejudice under

the Touw and Flores-Ortega standard. We therefore affirm the PCRA court’s

order denying him post-conviction relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2020


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