J-S15018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

ANDRE BASSETT,

                           Appellant                 No. 810 EDA 2015


               Appeal from the PCRA Order of March 10, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0007313-2010


BEFORE: BENDER, P.J.E., OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                            FILED MARCH 11, 2016

      Appellant, Andre Bassett, appeals from the order entered on March 10,

2015, denying his first petition filed under the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. § 9541-9546.       After careful consideration, we are

constrained to reverse.

      The factual background and procedural history of this case are as

follows.   On April 10, 2010, three individuals staked out the residence of

Sheyeta Brown (“Brown”).          One of those individuals entered Brown’s

residence and let Appellant and a third individual into the residence. After

threatening Brown with a handgun, the three individuals fled on foot with

Brown’s television.        Police soon located the television and witnessed

Appellant and another individual attempt to load it into a van.         Police

detained Appellant and a search of the van uncovered a handgun next to

*Retired Senior Judge assigned to the Superior Court
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where Appellant had been seated.               Brown and her neighbor identified

Appellant as one of the three individuals who burglarized her residence.

        On June 17, 2010, Appellant was charged via criminal information with

robbery,1 conspiracy to commit robbery,2 burglary,3 criminal trespassing,4

carrying a firearm without a license,5 theft by unlawful taking,6 receiving

stolen property,7 possession of a firearm by a prohibited person,8 carrying a

firearm on the streets on Philadelphia,9 possessing an instrument of crime,10

simple assault,11 and recklessly endangering another person.12 On October

3, 2011, a jury found Appellant guilty of carrying a firearm without a license,

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1
    18 Pa.C.S.A. § 3701(a)(1)(ii).
2
    18 Pa.C.S.A. §§ 903, 3701.
3
    18 Pa.C.S.A. § 3502(a).
4
    18 Pa.C.S.A. § 3503(a)(1)(ii).
5
    18 Pa.C.S.A. § 6106(a)(1).
6
    18 Pa.C.S.A. § 3921(a).
7
    18 Pa.C.S.A. § 3925(a).
8
    18 Pa.C.S.A. § 6105(a)(1).
9
    18 Pa.C.S.A. § 6108.
10
     18 Pa.C.S.A. § 907(a).
11
     18 Pa.C.S.A. § 2701(a).
12
     18 Pa.C.S.A. § 2705.



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receiving stolen property, possession of a firearm by a prohibited person,

and carrying a firearm on the streets on Philadelphia.      On November 22,

2011, Appellant was sentenced to an aggregate term of 12⅔ to 26 years’

imprisonment.        Appellant did not file a direct appeal or post-sentence

motion.

      On February 21, 2012, Appellant filed the instant PCRA petition,

alleging counsel failed to file a direct appeal as he requested. The PCRA

court appointed counsel, who filed an amended petition. On June 13, 2013,

the PCRA court held an evidentiary hearing at which Appellant and trial

counsel testified.    Appellant testified that immediately following sentencing

he instructed trial counsel to file a direct appeal. Appellant further claimed

that he followed up that oral direction with a written letter. Trial counsel, on

the other hand, testified that Appellant did not request a direct appeal,

either orally or in writing.

      Appellant also testified that trial counsel advised him against filing a

direct appeal because he may receive a longer prison sentence if he

prevailed on appeal. Apart from the colloquy setting forth Appellant’s direct

appellate rights, trial counsel did not remember speaking with Appellant

after the court pronounced sentence.        The PCRA court denied Appellant’s

petition at the conclusion of the evidentiary hearing. On appeal, this Court

vacated the PCRA court’s order and remanded for entry of findings of fact




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and conclusions of law related to Appellant’s claims. See Commonwealth

v. Bassett, 105 A.3d 38 (Pa. Super. 2014) (unpublished memorandum).13

       Following remand, the parties agreed that an additional evidentiary

hearing was unnecessary.          On February 9, 2015, the PCRA court issued

notice of its intent to dismiss the petition. See Pa.R.A.P. 907. Appellant did

not file a response. On March 10, 2015, the PCRA court dismissed

Appellant’s petition. This timely appeal followed.14

       Appellant presents one issue for our review:

       Whether trial counsel was ineffective in failing to file a direct
       appeal[?]

Appellant’s Brief at 7.

       Although only one issue is set forth in the statement of questions

involved, Appellant makes two arguments in support of this issue; first that

trial counsel was ineffective for failing to file a direct appeal as requested,

and; second, that trial counsel was ineffective for failing to consult with




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13
    One of the panel members dissented, concluding that Appellant waived
his failure to consult claim by failing to pursue it in the PCRA court. See
Pa.R.A.P. 302(a).
14
   On March 16, 2015, Appellant filed a concise statement of errors
complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On
May 11, 2015, the trial court issued its Rule 1925(a) opinion.



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Appellant regarding the advantages and disadvantages of an appeal. Id. at

14-17.15

       It is well-settled that:

       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 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) (internal citations and quotations omitted).

       As a preliminary matter, the Commonwealth argues that Appellant

waived all issues on appeal for failure to include a transcript of the status

conference held after remand. Pursuant to Pennsylvania Rules of Appellate

Procedure 1911, 1921, 1922, and 2101, this Court may find an issue waived

if the appellant fails to request that notes of testimony necessary for our

disposition of an appeal be transcribed.         These rules, however, do not

require that all notes of testimony be transcribed. Instead, only those notes

of testimony that are necessary for our review must be transcribed. See

Commonwealth v. Peifer, 730 A.2d 489, 493 (Pa. Super. 1999), appeal
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15
   We note that Appellant’s concise statement raises both issues that “trial
counsel was ineffective for not filing a direct appeal” and “trial counsel was
ineffective in that he did not adequately consult with [Appellant] regarding
the advantages and disadvantages of taking an appeal.”              Appellant’s
Statement of Matters Complained of on Appeal.



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denied, 743 A.2d 918 (Pa. 1999). The notes of testimony from the status

conference are unnecessary for our disposition of this appeal. Accordingly,

we decline to find waiver on this basis.

      Turning to the merits of this appeal, Appellant first claims that trial

counsel was ineffective for failing to file a direct appeal as requested by

Appellant. Failure by counsel to file a direct appeal, when requested by a

client constitutes per se ineffectiveness and entitles the petitioner to

reinstatement of his direct appellate rights nunc pro tunc. Commonwealth

v. Hernandez, 755 A.2d 1, 6 (Pa. Super. 2000), aff’d in part, 817 A.2d 479

(Pa. 2003).

      In this case, the PCRA court found that trial counsel testified credibly

when he stated that Appellant did not request he file a notice of appeal,

either orally or in writing.   The PCRA court further found that Appellant

lacked credibility when he testified that he asked trial counsel to file a direct

appeal.   We cannot disturb this determination.       See Commonwealth v.

Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility

determinations are solely within the province of the PCRA court).        Hence,

this aspect of Appellant’s ineffectiveness claim fails. See Commonwealth

v. McDermitt, 66 A.3d 810, 814 (Pa. Super. 2013).




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       Appellant next claims that his trial counsel failed to consult with him

regarding the filing of an appeal.16 The Supreme Court of the United States

explained that

       counsel 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 (for example,
       because there are nonfrivolous grounds for appeal), or (2) that
       this particular defendant reasonably demonstrated to counsel
       that he was interested in appealing.

Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). Consult means “advising

the defendant about the advantages and disadvantages of taking an appeal,

and making a reasonable effort to discover the defendant's wishes.”

Commonwealth v. Donaghy, 33 A.3d 12, 15 (Pa. Super. 2011), appeal

denied, 40 A.3d 120 (Pa. 2012) (citation omitted). Furthermore:

       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
       . . . 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.

Commonwealth v. Carter, 21 A.3d 680, 683 (Pa. Super. 2011) (internal

quotation marks and citation omitted).
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16
   We are skeptical, based upon our review of the record, that Appellant
properly preserved his failure to consult claim within the context of the initial
appeal. Nevertheless, a majority of the first panel found that the issue was
preserved and, as we are bound by the law of the case doctrine, we likewise
find that Appellant properly preserved the issue in the PCRA court.
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (“[u]pon a
second appeal, an appellate court may not alter the resolution of a legal
question previously decided by the same appellate court”).



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     In its Rule 1925(a) opinion, the PCRA court stated that “[trial counsel]

consulted with [Appellant] following the sentencing and advised him . . . .

regarding    potential   advantages   and   disadvantages   of   appealing   the

sentence.”    PCRA Court Opinion, 5/11/15, at 4.       We conclude that this

finding is unsupported by the record.       At the June 13, 2013 evidentiary

hearing, the PCRA court stated:

     I find [Appellant] to be not a credible witness. And I especially
     find the assertion that [trial counsel] told him that he should not
     appeal [not credible]. It would not be a good idea to appeal.
     I’m paraphrasing.     Because he could get more time when,
     number one, that’s bad law to keep the same judge. Something
     called a presumption of vindictiveness, which I’m sure we’[re] all
     familiar with.

     A judge cannot give a defendant more time if he files a motion
     for reconsideration or an appeal because without additional
     information it comes to the judge’s attention that is presumed to
     be vindictive.

     Second point, which really makes this absurd, is that because
     the guidelines allowed me to give him maximum sentences for
     three of the crimes, and the last sentence which was not a
     maximum sentence was only, what, ten months short of the
     maximum sentence. . . . I don’t believe that conversation ever
     took place between [Appellant and trial counsel.]

N.T., 6/13/13, at 34-35.

     The only support in the record for the contention that consultation

occurred was Appellant’s testimony that trial counsel told him that appealing

could result in a harsher sentence.    See id. at 8.   The PCRA court found

Appellant’s testimony in this regard unworthy of belief.         Moreover, trial

counsel testified that he did not recall consulting with Appellant other than


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giving the recitation of direct appeal rights.    See id. at 23.   As the PCRA

court found Appellant’s testimony to not be credible and trial counsel

testified that he did not recall consulting with Appellant, there is no support

in the record for the court’s finding that consultation occurred. Thus, we are

constrained to conclude that Appellant pled and proved that there was no

consultation.

       The PCRA court also stated in his Rule 1925(a) opinion that, even if no

consultation occurred, Appellant suffered no prejudice. PCRA Court Opinion,

5/11/15, at 3. This goes directly against the PCRA court’s statements made

during the evidentiary hearing on June 13, 2013. As the PCRA court aptly

pointed out at the evidentiary hearing, there was almost no downside to

filing a direct appeal as Appellant received close to the maximum sentence

possible. If Appellant prevailed on appeal, theoretically, he could receive ten

more months when resentenced; however, that would likely be seen as a

vindictive sentence.      On the other hand, there existed the possibility that

Appellant could prevail on direct appeal.17      Accordingly, we conclude that

Appellant has pled and proven that he suffered prejudice as a result of

counsel’s failure to consult. i.e., “that there is a reasonable probability that,
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17
   This also explains why counsel had an obligation to consult, i.e., “a
rational defendant would want to appeal[.]” Flores-Ortega, 528 U.S. at
480. The Commonwealth argues that any direct appeal would lack merit.
This may be true, however, we may not consider whether Appellant is likely
to prevail on direct appeal when considering whether he should have his
appellate rights reinstated.



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but for counsel’s deficient failure to consult with him about an appeal, he

would have timely appealed.”      Carter, 21 A.3d at 683.   Accordingly, we

reverse the PCRA court’s order and remand for reinstatement of Appellant’s

direct appellate rights nunc pro tunc.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2016




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