J-S42002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

ANTHONY SMITH

                         Appellant                      No. 856 WDA 2013


                 Appeal from the PCRA Order May 16, 2013
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0007617-2009


BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 16, 2014

      Appellant, Anthony Smith, appeals from the order entered by the

Honorable Joseph K. Williams, III, Court of Common Pleas of Allegheny

County, that dismissed Smith’s petition pursuant to the Post Conviction

Relief Act (“PCRA”). After careful review, we affirm.

      After a non-jury trial, Smith was convicted of aggravated assault of a

police officer, retail theft, disarming a police officer, recklessly endangering

another person, and resisting arrest. On September 14, 2010, the trial court

sentenced Smith to an aggregate term of imprisonment of six to twelve

years, to be followed by 16 years of probation.         Smith did not file post-

sentence motions or a direct appeal.

      On March 1, 2011, Smith filed a pro se petition for PCRA relief. The

PCRA court appointed counsel, and on September 6, 2011, counsel filed an
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amended PCRA petition.        The PCRA court dismissed Smith’s amended

petition via order dated September 21, 2011, which this Court vacated in

part due to the failure of the PCRA court to issue a Rule 907 Notice of Intent

to Dismiss.

      Upon remand, the PCRA court issued a Rule 907 notice, and, on

September 19, 2012, the PCRA court again dismissed Smith’s amended

PCRA petition.   Smith appealed, and this Court reversed the PCRA court’s

order and remanded for a hearing on Smith’s claims of ineffectiveness of

counsel. The hearing was held on May 15, 2013, and on the next day, the

PCRA court dismissed Smith’s amended petition for the third time.        This

timely appeal followed.

      On appeal, Smith raises a single issue for our review:        “Whether

[Smith] is entitled to reinstatement of his right to file a post-sentence

motion and appeal [from his judgment of sentence,] as he was deprived of

his right to effective assistance of counsel … when [trial counsel] failed to

consult with [Smith] about exercising … [Smith’s] post-sentence and appeal

rights?” Appellant’s Brief, at 3.

      Our standard of review of a PCRA court’s denial of a petition for post-

conviction relief is well-settled.   We must examine whether the record

supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. See Commonwealth v. Hall, 867 A.2d

619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed


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unless there is no support for the findings in the certified record.           See

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). A PCRA

court’s factual findings are binding upon us if the record supports them.

See Commonwealth v. Dennis, 17 A.3d 297 (Pa. 2011).                   Our scope of

review is limited by the parameters of the PCRA. See Commonwealth v.

Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).

     To be eligible for relief under the PCRA, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted   from   one   of   the   errors   listed   in   42   PA.CONS.STAT.ANN.   §

9543(a)(2)(i)-(viii). See Commonwealth v. Albrecht, 554 Pa. 31, 41, 720

A.2d 693, 698 (1998). Section 9543(a)(2) requires,

           (2) That the conviction or sentence resulted from one or
           more of the following:

           (i) A violation of the Constitution of this Commonwealth
           or the Constitution or laws of the United States 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.

           (ii) 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.

           (iii) A plea of guilty unlawfully induced where the
           circumstances make it likely that the inducement caused
           the petitioner to plead guilty and the petitioner is
           innocent.

           (iv) The improper obstruction by government officials of
           the petitioner's right of appeal where a meritorious
           appealable issue existed and was properly preserved in
           the trial court.

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           (v) Deleted.

           (vi) The unavailability at the time of trial of exculpatory
           evidence that has subsequently become available and
           would have changed the outcome of the trial if it had
           been introduced.

           (vii) The imposition of a sentence greater than the lawful
           maximum.

           (viii) A proceeding in a tribunal without jurisdiction.

42 PA.CONS.STAT.ANN. § 9543(a)(2)(i)-(viii).

       Smith argues that the PCRA court erred in not finding trial counsel

ineffective for failing to consult with Smith about post-sentence motions and

a direct appeal.1     In addressing Smith’s claim of counsel’s ineffectiveness,

we turn to the following principles of law:

       In order for Appellant to prevail on a claim of ineffective
       assistance of counsel, he 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 … Appellant must
       demonstrate: (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.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(citation omitted). Moreover, “[w]e presume counsel is effective and place

upon Appellant the burden of proving otherwise.”             Commonwealth v.
____________________________________________


1
   Smith’s argument does not distinguish the right to file post-sentence
motions from the right to file a direct appeal. The entirety of his argument
is addressed to the reinstatement of his direct appeal rights.



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Springer, 961 A.2d 1262, 1266-1267 (Pa. Super. 2008).           This Court will

grant relief only if Appellant satisfies each of the three prongs necessary to

prove counsel ineffective.   Commonwealth v. Natividad, 938 A.2d 310,

321 (Pa. 2007).     Thus, we may deny any ineffectiveness claim if “the

evidence fails to meet a single one of these prongs.” Id., 595 Pa. at 207-

208, 938 A.2d at 321 (citation omitted).

      An ineffectiveness of counsel claim based upon a failure to file a direct

appeal can be established in one of two ways.        First, the petitioner may

establish that he requested that counsel file a direct appeal and counsel did

not. See Commonwealth v. Donaghy, 33 A.2d 12, 15 (Pa. Super. 2010).

Alternatively, the petitioner may establish that counsel had a duty to consult

with the petitioner on the option of a direct appeal if there is reason to think

a rational defendant would want to appeal.    See id.

      In the instant matter, Smith attempted to establish both types of

claim. First, Smith testified at the PCRA hearing that he asked trial counsel

to file an appeal from his judgment of sentence. See N.T., 5/15/13, at 11-

12. However, Smith also testified that he had never discussed his appellate

rights with trial counsel. See id., at 7. In contrast, trial counsel testified

that he had no direct recollection of any discussions he had with Smith

regarding an appeal, but that if Smith had requested an appeal, he would

have filed one.   See id., at 23-24.     The PCRA court found trial counsel

credible and Smith not, and concluded that Smith had not requested that


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trial counsel file an appeal.   See Opinion, 3/7/2014, at 2.    This finding is

within the PCRA court’s discretion and is well supported by the record.

      In the alternative, Smith argues that trial counsel should have been

aware that Smith would have wanted to pursue an appeal.           Specifically,

Smith contends that counsel should have consulted about an appeal over the

issue of credit for time served, and during that consultation, Smith could

have raised the issue of the sufficiency of the evidence supporting his

convictions.

      At first blush, this argument has some merit.      The Commonwealth

concedes that Smith was ultimately given relief on the issue of credit for

time served. Furthermore, trial counsel could not recall what issues he had

discussed with Smith post-sentencing. Thus, there were arguably grounds

to conclude that trial counsel should have consulted with Smith on his post-

sentence and direct appeal rights, and there is no evidence that he consulted

with Smith on these issues. However, Smith’s claim ultimately fails for lack

of prejudice.

      Smith cannot argue that he was prejudiced by the failure to raise his

issue about credit on direct appeal; this issue was ultimately remedied.

Recognizing this, Smith contends that he would have raised an issue with

the sufficiency of the evidence supporting his convictions.      However, as

noted above, the PCRA court did not find Smith credible.       Thus, the PCRA




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court did not credit Smith’s contention that he would have requested a

challenge to the sufficiency of the evidence.

      As we have already concluded that the PCRA court’s credibility

determination is binding upon us, we can find no prejudice arising from trial

counsel’s alleged failure to consult with Smith about a direct appeal. Smith

has therefore failed to establish the third prong of an ineffectiveness claim,

and his issue on appeal merits no relief.

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2014




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