J-S63010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MEREDITH DESHAWN PENN,

                            Appellant                 No. 720 MDA 2014


                   Appeal from the PCRA Order April 15, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003847-2010


BEFORE: BOWES, PANELLA, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 07, 2014

       Meredith Deshawn Penn appeals from the order entered April 15,

2014, denying his first counseled PCRA petition. We affirm.

       A jury found Appellant guilty of burglary, criminal conspiracy, theft by

unlawful taking, criminal mischief, and carrying a firearm without a license.

                                                                      -in at a

residence in Salisbury Township, Lancaster, Pennsylvania.        Appellant was

observed by Michael Moffet fleeing from the residence. The witness initially

heard a noise from the home and walked over to investigate.           He saw a

smashed window and chased Appellant before Appellant entered a Nissan

vehicle with a Pennsylvania license plate EXB-5075.        Police learned that a

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S63010-14



handgun, video games, and money were taken from the home.              Further

investigation revealed fingerprints belonging to Appellant and Matthew

Robles Evans, the owner of the aforementioned car, at the point of entry into

the home.

      Following the verdict, the court granted a motion for judgment of

acquittal on the firearms violation. The court initially sentenced Appellant to

four and one-half to fifteen years incarceration.     Specifically, it imposed

consecutive one-and-one-half-to-five-year sentences on each count of

burglary, conspiracy, and theft by unlawful taking. Appellant timely filed a

motion to modify his sentence on May 14, 2012.        The court granted that

motion in part, and direc

concurrent with the burglary charge on July 17, 2012.             Accordingly,



      Counsel for Appellant informed his client of the modified sentence by

letter on July 31, 2012. Appellant responded on August 6, 2012, thanking

counsel for his representation.    Appellant did not ask counsel to file an

appeal.   Thereafter, on December 28, 2012, Appellant filed a motion to

modify and reduce his sentence nunc pro tunc, and alleged ineffective

assistance of counsel.   The court properly treated the motion as a timely

PCRA petition, and appointed counsel on January 8, 2013.        PCRA counsel



rights, and the court conducted a hearing on January 2, 2014.




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      At the evidentiary hearing, trial counsel testified that Appellant did not

ask him to file an appeal, and if Appellant had requested such an appeal,

counsel would have filed it.     Counsel indicated that he provided Appellant

with his appellate rights before the initial sentencing and informed him of the



Appellant informing him of his new sentence, counsel set forth that Appellant

had

with you that such an appeal was of little benefit and that if we could reduce



                                  noted, Appellant responded to this letter by

thanking counsel. In addition, Appellant requested that counsel provide him

with copies of his motions and orders related to the case. Appellant did not

ask counsel to file an appeal.

      The PCRA court directed the parties to submit briefs and ultimately



timely appeal ensued. The PCRA court directed Appellant to file and serve a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant complied, and the court indicated that its reasons for the denial

could be found in its April 15, 2014 opinion. The matter is now ready for




when counsel was ineffective by failing to protect and preserve the




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J-S63010-14



       Appellate review of a PCRA matter is guided by well-ensconced legal



t                                             Commonwealth v. Henkel, 90

A.3d 16, 20 (Pa.Super. 2014) (en banc).        In performing this review, we

examine the evidence of record and the factual findings of the PCRA court.

Id

PCRA court and will not disturb those findings unless they have no support in

                Commonwealth v. Pander, 2014 PA Super 201, *3 (en

banc

standard of review is de novo                                         Henkel,

supra at 20.

       Appellant asserts that trial counsel was ineffective in failing to

adequately consult with him about his appellate rights and file a direct

                                        Roe v. Flores-Ortega, 528 U.S. 470

(2000); Commonwealth v. Touw, 781 A.2d 1250 (Pa.Super. 2001)).              In

this scenario, this Court in Commonwealth v. Markowitz, 32 A.3d 706

(Pa.Super. 2011), outlined the relevant law as follows.

              Where counsel has not advised his client about the client's
       appellate rights, the question becomes whether that failure
       caused actual prejudice to the petitioner, i.e.,                's
       deficient failure to consult with him about an appeal, he would
                                   Flores Ortega, supra at 484, 120
       S.Ct. 1029.      In analyzing whether there is a constitutional
       mandate to consult with a defendant about his appellate rights,
       the Supr
       rational defendant would want to appeal (for example, because
       there are nonfrivolous grounds for appeal), or (2) that this


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J-S63010-14


      particular defendant reasonably demonstrated to counsel that he
      was interested in                Id. at 480, 120 S.Ct. 1029.
      Where a petitioner can prove either factor, he establishes that
      his claim has arguable merit.

            In deciding whether the petitioner suffered actual
      prejudice, the High Court listed several relevant factors. For
      example, did the petitioner plead guilty, thereby decreasing the
      number of appealable issues? Id. Pertinent considerations also
      include any instructions given by the court with respect to the
      defendant's right to appeal as well as evidence of nonfrivolous
      grounds for appeal.

Id. at 716.

      Instantly, counsel did inform Appellant of his appellate rights. He did

so when Appellant was initially sentenced and again when he instructed him

that he had thirty days to appeal from the modified sentence. Appellant did

not demonstrate any interest in appealing; instead, writing to counsel to

thank him for his representation.

      While Appellant argues that the fact that he wished counsel to file a

motion to modify his sentence indicates he wanted to appeal if his motion

was not granted in full, we disagree. Counsel expressly set forth in his letter

to Appellant that both parties agreed that an appeal wa

his minimum sentence was reduced to three years.                Appellant neither

refuted that suggestion nor hinted that he desired an appeal. Here, counsel

was neither per se ineffective for failing to file a requested direct appeal, cf.

Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1998), nor ineffective under

the traditional ineffectiveness test for not adequately consulting with his

client since he did instruct his client as to his appellate rights.

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J-S63010-14


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




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