J.S13042/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
JOSHUA YINGLING,                            :
                                            :
                          Appellant         :     No. 1484 WDA 2015

                Appeal from the PCRA Order September 14, 2015
       in the Court of Common Pleas of Allegheny County Criminal Division
                        at No(s): CP-02-CR-0002047-2013

BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 11, 2016

        Appellant, Joshua Yingling, appeals from the order entered in the

Allegheny County Court of Common Pleas denying his first Post Conviction

Relief Act1 (“PCRA”) Petition, following an evidentiary hearing. We affirm.

        The facts are unnecessary for our disposition.         The trial court

summarized the procedural posture of this case as follows:

           After a jury trial, [Appellant] was convicted of conspiracy
           to commit robbery, four counts of recklessly endangering
           another person, and fleeing and eluding. He was also
           convicted of six summary offenses. He was sentenced to a
           term of imprisonment of not less than 36 months nor more
           than 72 months relative to the conspiracy conviction. He
           was also sentenced to a consecutive term of imprisonment
           of not less than six months nor more than 12 months
           relative to the fleeing and eluding conviction. Relative to


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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         the four recklessly endangering counts, he was sentenced
         to four consecutive terms of imprisonment of not less than
         one month nor more than six months. No appeal was
         filed. [Appellant] filed a pro se petition for relief under the
         [PCRA]. Counsel was appointed and on February 25,
         2015, . . . filed an amended petition pursuant to the
         [PCRA] claiming that [Appellant’s] prior counsel rendered
         ineffective assistance of counsel for failing to file a post-
         sentencing motion or a direct appeal challenging the
         sentence imposed in this case.

PCRA Ct. Op., 11/5/15, at 1.     The PCRA court found that counsel did not

render ineffective assistance and denied the petition.       This timely appeal

followed. Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained

of on appeal and the PCRA court filed a responsive opinion.

      Appellant raises the following issue for our review:

            Did the trial court err in denying Appellant’s PCRA
         petition and in failing to reinstate Appellant’s post sentence
         rights since trial/sentencing counsel [Anne Marie] Mancuso
         was ineffective for failing to discuss or file post sentencing
         motions (“PSM”)/an appeal, and for misinforming Appellant
         regarding the length of the instant aggregate sentence,
         when Appellant desired that PSM and an appeal be filed
         regarding the sentence imposed, and attempted to have
         counsel file PSM?

Appellant’s Brief at 3.

      Appellant avers that counsel’s failure to file a direct appeal is the

functional equivalent of not having counsel and therefore his appellate rights

should be reinstated nunc pro tunc.     Id. at 11. Appellant claims that “he

believed that he was only sentenced to 3-6 years’ imprisonment, and didn’t




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understand that he had received consecutive sentences.”2             Id. at 12.

Appellant contends that he “wanted post sentencing motions filed so that he

could challenge the instant sentence, and he even had his mother call Trial

Counsel 3-5 times in the coming week (within the 10 day period within

which to file post sentencing motions after imposition of sentence) so that

post sentencing motions could be timely filed for [him].”            Id. at 13.

Appellant states that trial counsel’s contention that she spoke with him in

the hallway following sentencing is impossible because he was not taken out

into the hallway after sentencing. Id. He avers that he was taken directly

through a rear door in the courtroom to the bullpen. 3 Id. Appellant argues



2
  We note that at sentencing, the court explained the sentences were
consecutive “because I think it needs to be acknowledged the extent of your
harmful and dangerous conduct while on probation, violent conduct.” N.T.
Sentencing Hr’g, 5/13/14, at 16.     The court informed Appellant that his
sentence was 46 months minimum, with all credit for time served, to 108
months. Id. at 17. The court advised Appellant that he had the right to file
a post sentence motion within ten days. Id. at 18. The court further stated:

              If you wish to assert your post-sentencing rights, you
           speak to Ms. Mancuso. She knows what to do. If Ms.
           Mancuso’s unavailable─10 days to file the motion or a
           direct appeal in 30 days.

              If Ms. Mancuso is unavailable and you wish to assert
           your rights but cannot afford another lawyer, you let the
           [c]ourt know and I’ll see to it that a lawyer’s appointed for
           you on your behalf.

Id.
3
    We note at the PCRA hearing, the court stated:


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that he “lost his post sentencing rights because of Trial Counsel’s

ineffectiveness and, therefore, the Trial Court erred in not reinstating [his]

post sentencing rights.” Id. at 13-14.

      Our review is governed by the following principles:

            Our scope of review when examining a PCRA court’s
            denial of relief is limited to whether the court’s
            findings are supported by the record and the order is
            otherwise free of legal error. We will not disturb
            findings that are supported by the record.

         Furthermore, as Appellant’s issue is stated in terms of
         ineffectiveness of counsel, Appellant must show that: (1)
         his claim has arguable merit; (2) counsel’s performance
         had no reasonable basis; and (3) counsel’s action or
         inaction worked to Appellant’s prejudice.       The PCRA
         standard regarding a claim of ineffective assistance of
         counsel is the same as the standard on direct appeal.

                                 *    *    *

         However, the case of a petitioner who was denied a
         requested direct appeal by the ineffectiveness of his trial
         or plea counsel presents a special problem of constitutional
         dimension. In Commonwealth v. Lantzy, [ ] 736 A.2d
         564 ([Pa.] 1999), our Supreme Court resolved this
         problem as follows:

            [W]here there is an unjustified failure to file a
            requested direct appeal, the conduct of counsel
            falls beneath the range of competence demanded of


         This courtroom is right next to the area which is the
         entrance to what we call the bull pen. In this courtroom,
         unlike any other I think, the Defendant can be taken from
         this room through that back door through the entrance to
         the bull pen without going out into the hallway . . . .

N.T. PCRA Hr’g, 9/14/15, at 12. Ms. Mancuso testified that she talked to
Appellant in the hallway outside of the courtroom. Id. at 13.

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              attorneys in criminal cases, [denying] the accused
              the assistance of counsel guaranteed by the Sixth
              Amendment to the United States Constitution and
              Article I, Section 9 of the Pennsylvania Constitution,
              and constitutes prejudice. . . . Therefore, in such
              circumstances,      and    where     the   remaining
              requirements of the PCRA are satisfied, the petitioner
              is not required to establish his innocence or
              demonstrate the merits of the issue or issues which
              would have been raised on appeal.

         Id. . . . 736 A.2d at 572 (footnotes and citations omitted).
         Counsel’s unjustified failure to file a direct appeal will
         constitute prejudice per se under Lantzy, if the
         petitioner can establish that he did ask counsel to
         file an appeal.

Commonwealth v. Qualls, 785 A.2d 1007, 1009-10 (Pa. Super. 2001)

(some citations omitted and emphases added).

      However, “counsel's failure to file post-sentence motions does not fall

within the narrow ambit of ineffectiveness claims requiring no finding of

prejudice.”   Commonwealth v. Fransen, 986 A.2d 154, 158 (Pa. Super.

2009). “The PCRA court’s credibility determinations, when supported by the

record, are binding on this Court.” Commonwealth v. Spotz, 18 A.3d 244,

259 (Pa. 2011).

      Instantly, the PCRA court opined:

             Counsel did not render ineffective assistance of counsel
         in this case. The [c]ourt finds the testimony of trial
         counsel to be credible.          This [c]ourt believes that
         [Appellant] believed his sentence was reasonable and he
         conveyed that fact to trial counsel.         [Appellant] was
         advised of his right to challenge his sentence by this
         [c]ourt immediately after sentence was imposed and he
         discussed his specific sentence and his ability to challenge
         it with trial counsel after sentencing was concluded.

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PCRA Ct. Op. at 3-4.

      Appellant testified at the PCRA hearing that he wanted to challenge his

sentence. N.T. at 5. He testified, inter alia, as follows:

         [Appellant’s counsel]: Did you talk to Ms. Mancuso, did you
         talk to anybody at that point immediately after you were
         sentenced or afterwards?

         A: No. On the way leaving the courtroom I asked her what
         my sentence was because I really didn’t understand. She
         was grabbing her jacket and she had told me that it was
         three to six years and I thought that that was what I was
         getting.

            Then I asked her what was going on and she was kind
         of rushing and I got rushed out of the courtroom and I
         never spoke with her after that.

         Q: Did she─before she left or any time thereafter did she
         explain your post-sentencing rights or your appellate
         rights?

         A: No.

         Q: So you didn’t know that you had ten days to file post-
         sentencing motions?

         A: No.

         Q: Thirty days to file an appeal?

         A: No.

         Q: Did you want post-sentencing motions filed?

         A: Yes, I did.

         Q: If she had spoken to you, would you have expressed to
         her that you wanted post-sentencing motions?

         A: For sentencing reasons, yes.

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         Q: Did you attempt to get in touch with her in the ten-day
         period after you were sentenced?

         A: My mother did, yes.

         Q: And what happened as far as you know?

         A: She called her I think─she said between three to five
         times within the first week after I got sentenced because
         when I got back to the county that night my sentence was
         entered into the computer, and I do believe that it said 46
         to 108 months, and I was under the impression that it was
         going to be 36 to 108 months so─

         Q: Do you know─did your mom leave messages, did your
         mom─

         A: She contacted twice and she got through once and I
         guess that there was someone that said that she wasn’t in
         the office. The other two times she could not get ahold of
         her and I wrote two letters but─

         Q: Did you know what your mom said in those messages?

         A: I don’t know exactly what my mother said in those
         messages, but I do know that she had told them that it
         was─the only one time message that she had told them
         that I need to speak with her immediately about my
         sentence.

         Q: But you definitely wanted post-sentencing motions or
         an appeal filed?

         A: Yes.

Id. at 5-7.

      Ms. Mancuso testified at the PCRA hearing, inter alia, as follows:

         [Appellant’s counsel]: Did you get a chance to talk to
         [Appellant] after sentencing about post-sentencing
         motions or an appeal?


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       A: I spoke with him immediately following his sentence.
       We spoke about the fact that we both thought that it was
       fair and he said that to me in the hallway. We talked
       about what his options were, exactly what he said, in the
       hallway and immediately following sentencing.

       Q: So you walked out─he was in handcuffs?

       A: He was taken into custody at that time.

       Q: You walked to the bull pen, towards the bull pen with
       him.

       Q: Yes.

       Q: That’s where this conversation took place?

       A: Yes, right in the hallway.

       Q: And did you explain to him that he had ten days to file
       post-sentencing motions?

       A: I can’t recall what exactly was said in that conversation,
       but I remember us discussing what his sentence was and
       whether or not he wanted to challenge the sentence and
       us agreeing that it was fair and I never heard from him
       again after that.

       Q: Did you tell him he had a right to challenge that
       sentence?

       A: Yes, absolutely.

       Q: And did you tell him the length of the sentence?

       A: Yes. We talked about that as well.

                                *      *   *

       Q: Did you receive any telephone messages from his
       mother or anyone else?

       A: I believe that I spoke to his mother actually and I
       believe that she just had questions about what the next

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           step was as far as where he was going to be transferred
           and the length of his sentence and I believe we went over
           that, but at no time did anyone ask me to file any
           sort of post-sentence motion. Otherwise I would
           have.

Id.   at     9-10   (emphasis   added).      On    cross-examination       by   the

Commonwealth, she testified as follows:

           [The Commonwealth]: . . . Do you have a specific
           recollection in talking to [Appellant] about his appellate
           rights?

           A: Yes, because it was immediately following the sentence.

           Q: And if [Appellant] had asked you to file an appeal for
           motion to modify sentence what would you have done?

           A: I would have absolutely a hundred percent pursued his
           desire to do that.

Id. at 11.

      At the conclusion of the hearing, the PCRA court opined:

           I hear [Appellant’s] testimony, my mother did this, my
           mother did that, but his mother never came to testify as to
           what she did or didn’t do.

             The only person that was a party to the conversation
           was Ms. Mancuso who did testify that she spoke about
           what happened next and so forth and nobody said to her
           what about post-sentencing, let’s appeal, let’s file a motion
           ....

              So the only person that was participating in that
           conversation in this courtroom was Ms. Mancuso. Mom
           has not come here.

              There is a reason why hearsay is inadmissible. . . .
           Mom did not come in to say that she had that conversation
           with Ms. Mancuso and put her on notice on behalf of her


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          son. Ms. Mancuso, who was in the conversation, said that
          that is not what happened.

                                  *     *      *

             Under these circumstances of course [Appellant] would
          have expected his mom did everything that he wanted her
          to do, but there is no evidence that she did and there is
          evidence that she did not from Ms. Mancuso.

                                  *     *      *

          Ms. Mancuso was here and said, here is what
          happened, and I find her testimony to be credible . .
          ..

Id. at 18-20 (emphasis added).

        In the case sub judice, Appellant avers that he “wanted post

sentencing motions filed and [he] lost his post sentencing rights because of

Trial Counsel’s ineffectiveness and, therefore, the Trial Court erred in not

reinstating [his] post sentencing rights.”         Appellant’s Brief at 13-14. This

claim is unavailing.    See Fransen, 986 A.2d at 158; Qualls, 785 A.2d at

1010.

        The PCRA court found trial counsel’s testimony to be credible and

concluded she did not render ineffective assistance of counsel. We find the

record supports the PCRA court’s credibility determination. See Spotz, 18

A.3d at 259. Appellant has also not established that he asked counsel to file

a direct appeal. See Qualls, 785 A.2d at 1010. We find the PCRA court’s

order was supported by the record and free of legal error. See id. at 1009.

Therefore, we affirm.


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/11/2016




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