J-S11017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KALIN PRATT

                            Appellant                 No. 565 EDA 2015


                  Appeal from the PCRA Order January 21, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004280-2010


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                           FILED FEBRUARY 18, 2016

        Kalin Pratt appeals, pro se, from the order entered January 21, 2015,

in the Philadelphia County Court of Common Pleas dismissing his first

petition for collateral relief filed pursuant to the Post Conviction Relief Act,

42 Pa.C.S. §§ 9541-9546. Pratt seeks relief from the judgment of sentence

of an aggregate 20 to 40 years’ imprisonment, imposed following his guilty

plea to charges of third degree murder, robbery, criminal conspiracy,

aggravated assault, and carrying a firearm without a license.1      On appeal,

Pratt contends plea counsel was ineffective for failing to file a direct appeal.

For the reasons that follow, we affirm.


____________________________________________


1
    18 Pa.C.S. §§ 2502(c), 903, 2701(a)(1), 2702, and 6106, respectively.
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       The facts underlying Pratt’s arrest, including an inculpatory statement

he made to police, were detailed by the Commonwealth during Pratt’s guilty

plea hearing. See N.T., 5/2/2011, at 33-52. For purposes of this appeal,

we need not recite them herein. In summary, Pratt and a group of friends

were involved in a gunpoint robbery of two people that ended in the death of

one of the victims. On May 2, 2011, Pratt entered a negotiated guilty plea

to the charges set forth above, in exchange for which the Commonwealth

agreed to a recommended sentence of not more than 20 to 40 years’

imprisonment.2      Thereafter, on May 6, 2011, the trial court imposed the

negotiated sentence.3 No direct appeal was filed.

       On May 7, 2012, Pratt filed a timely pro se PCRA petition asserting

plea counsel’s ineffectiveness for coercing him into entering a guilty plea.

PCRA    counsel     was    appointed,     and    on   November   3,   2014,   filed   a

Turner/Finley4 “no merit” letter and request to withdraw.              On December

15, 2014, the PCRA court notified Pratt of its intent to dismiss the petition,

____________________________________________


2
  We note that, according to the PCRA court, the purported shooter in the
group, co-defendant James “Jazz” Alston, was acquitted by a jury of all
charges on May 5, 2011. See PCRA Court Opinion, 7/20/2015, at n.1.
3
  Specifcally, Pratt was sentenced to a term of 20 to 40 years’ imprisonment
for third degree murder, and concurrent terms of 10 to 20 years’
imprisonment for the charges of robbery and criminal conspiracy. No further
penalty was imposed on the remaining charges.
4
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)



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pursuant to Pa.R.Crim.P. 907, without first conducting an evidentiary

hearing.     Thereafter, the court entered an order on January 14, 2015,

dismissing Pratt’s petition, and granting counsel’s motion to withdraw. That

same day, Pratt’s pro se response to the court’s Rule 907 notice was

docketed.     In his response, Pratt asserted counsel was ineffective for failing

to file a direct appeal.     On January 21, 2015, the PCRA court entered a

revised order, reflecting that Pratt had 30 days to file an appeal. This timely

pro se appeal followed.

      On appeal, Pratt asserts the PCRA court erred when it denied “his

constitutional rights to file an appeal.” Pratt’s Brief at 6.

      When reviewing an order dismissing a PCRA petition, we must

determine whether the PCRA court’s findings of fact are supported by the

record,     and   whether    its   legal    conclusions    are   free   from     error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference

is granted to the findings of the PCRA court, and these findings will not be

disturbed    unless   they    have    no    support   in   the   certified     record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted).     Furthermore, a PCRA court “has the discretion to dismiss a

petition without a hearing when the court is satisfied ‘that there are no

genuine issues concerning any material fact, the defendant is not entitled to

post-conviction collateral relief, and no legitimate purpose would be served

by further proceedings.’”      Commonwealth v. Roney, 79 A.3d 595, 604

(Pa. 2013) (citation omitted), cert. denied, 135 S.Ct. 56 (U.S. 2014).

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      Pratt’s   claim,   though   poorly    drafted,    asserts   plea   counsel’s

ineffectiveness for failing to file a direct appeal.        “[T]o prove counsel

ineffective, the petitioner must show that: (1) his underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his action or

inaction; and (3) the petitioner suffered actual prejudice as a result.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).                The Supreme

Court has held “[w]here a defendant clearly asks for an appeal and counsel

fails to file one, a presumption of prejudice arises regardless of the merits of

the underlying issues.” Commonwealth v. Donaghy, 33 A.3d 12, 15 (Pa.

Super. 2011) (citation omitted), appeal denied, 40 A.3d 120 (Pa. 2012).

      We find no relief is warranted. First, Pratt did not include this claim in

his pro se PCRA petition, but raised it for the first time in his response to the

court’s Rule 907 notice. Furthermore, he did not seek permission to amend

his petition.   For that reason, we could consider the issue waived.          See

Commonwealth v. Rykard, 55 A.3d 1177, 1192 (Pa. Super. 2012) (claims

raised for the first time in response to the court’s notice of dismissal are not

preserved for review unless petitioner seeks, and the PCRA court grants,

permission to file amended petition), appeal denied, 64 A.3d 631 (Pa. 2013).

      We note, however, that PCRA counsel addressed this claim in his “no

merit” letter. Presumably, therefore, Pratt alerted counsel to the issue. See

No Merit Letter, 11/3/2014, at 4 (“The Petitoner’s final contention is that his

attorney was ineffective for not filing an appeal.”).




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        Nevertheless, Pratt failed to assert before the PCRA court that he

requested counsel to file an appeal, and counsel ignored that request.

Indeed, counsel, in his “no merit” letter, cites this fact as that basis for his

conclusion that the claim is meritless. Counsel explains:

        [Pratt] has offered no proof that he asked for an appeal. In his
        correspondence he does not indicate where, when or how he
        requested an appeal. He provides no letter to his attorney
        requesting an appeal. … Because I see no evidence that he
        asked his attorney to file a petition to withdraw or to file a notice
        of appeal, it is my opinion that this claim is without merit[.]

Id. at 4-5.

        It is the responsibility of the petitioner to plead and prove his eligibility

for relief,5 as well as demonstrate to the PCRA court the need for an

evidentiary hearing.      Pratt has failed to do so in the present case and, is,

therefore, entitled to no relief.6
____________________________________________


5
    See 42 Pa.C.S. § 9543(a).
6
  We note our review reveals no basis to conclude plea counsel had any
reason to suspect Pratt wanted to appeal his sentence, so as to invoke his
duty to consult further with Pratt under Commonwealth v. Touw, 781
A.2d 1250, 1254 (Pa. Super. 2001) (holding counsel has constitutional duty
to consult with a 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.”). The record reveals Pratt voluntarily entered a
negotiated guilty plea, and was sentenced in accordance with the plea
agreement. See Commonwealth v. McDermitt, 66 A.3d 810, 815 (Pa.
Super. 2013) (finding PCRA court was not required to conduct evidentiary
hearing to examine the nature of counsel’s consultation regarding appeal
with defendant; because defendant entered no contest plea, he could only
challenge the “jurisdiction of the trial court, the validity of the plea, and the
(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2016




                       _______________________
(Footnote Continued)

legality of the sentence” and there was “nothing of record that would
indicate to counsel that appellant might want to appeal because appellant
was the recipient of a generous plea bargain.”).




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