J-S74037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DERICK CARY                                :
                                               :
                       Appellant               :   No. 2852 EDA 2017

                  Appeal from the PCRA Order August 28, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0004898-2012


BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED APRIL 09, 2019

        Derick Cary appeals from the order dismissing his petition filed under

the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). We

conclude the PCRA court did not err in finding Cary failed to establish that he

asked his counsel to file a direct appeal. We affirm.

        On December 10, 2012, the trial court found Cary guilty of burglary,

attempted theft by unlawful taking, receiving stolen property, possessing an

instrument of crime, and conspiracy.1 On February 5, 2013, the trial court

sentenced Cary to an aggregate sentence of six to 12 years’ incarceration. At

the time of sentencing, Cary’s counsel twice informed him of his right to file

an appeal, and he stated he understood that right. N.T., 2/5/13, at 9-10.




____________________________________________


1   18 Pa.C.S.A. §§ 3502, 3921, 3925, 907, and 903, respectively.
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       Cary did not file post-sentence motions or a notice of appeal. On April

2, 2013, Cary filed a timely PCRA petition. The PCRA court appointed counsel,

who filed an amended petition on May 7, 2015, seeking reinstatement of

Cary’s rights to file post-sentence motions and a direct appeal nunc pro tunc.

Cary filed another amended petition on June 8, 2016.2 The Commonwealth

filed a motion to dismiss the petition to reinstate Cary’s right to file post-

sentence motions nunc pro tunc, and agreed an evidentiary hearing was

required as to the request to reinstate his direct appeal rights nunc pro tunc.

The PCRA court held an evidentiary hearing.

       At the hearing, Cary testified that he was aware he needed to contact

his attorney if he wanted to file an appeal. N.T., 8/28/17, at 11. He said he

tried to notify her at the sentencing hearing and make a request on the record,

but “was escorted out of the court so [he] didn’t have . . . contact with her for

a while.” Id. He stated he left a message for his attorney and also asked his

family to speak with counsel and request that she file an appeal. Id. at 12. He

further stated he thought counsel received the message because she sent him

a letter in which counsel “thanked [him] kindly for contacting her and she

[thought] that [he] should be able to win . . . on appeal.” Id.

       The following letter from counsel to Cary dated February 5, 2013, was

read into the record:



____________________________________________


2Prior to the filing of the second amended petition, the trial court permitted
PCRA counsel to withdraw and appointed new counsel.

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         As you know, you were sentenced today in your case to a
         total of six to twelve years[’] incarceration consecutive to
         any sentence you are currently serving. As your sentencing
         guidelines call for a sentence of 35 to 45 months plus or
         minus six months[, t]his is an exceedingly harsh sentence
         and unduly aggravated one. Therefore, it is my advice that
         you consider filing a motion to reconsider sentence with the
         Court. Although the Judge was interrupting you during your
         allocution, calling him a racist was not the best idea in light
         of what was happening. Of course the Judge did violate your
         rights by announcing your specific medical diagnosis twice
         on the record in open court and if you choose you may
         consider recourse for this action.

         If I can assist you further in the future, please do not
         hesitate to contact me. Should you not have funds to retain
         me for a motion to reconsider sentence and/or appeal
         please contact the court in writing so that an attorney can
         be appointed to your case free of charge. Due to the ten day
         deadline for a motion to reconsider sentence this should be
         done as soon as possible to preserve your rights. I wish you
         all the best in the future.

Id. at 16. Cary denied that this was the letter he referenced in his testimony.

Id. at 17. Cary claimed he and counsel discussed “numerous times” his desire

to file an appeal and counsel “said she was going to contact [Cary’s] father as

she did prior to this or my sisters to try to set up some type of payment or

whatever.” Id. at 19.

      Cary’s sister, Folani Irvine, testified that Cary told his father that it was

important that they speak with his attorney within ten days to file an appeal.

Id. at 21. She stated Cary “was very adamant about it.” Id. Folani testified

she called counsel’s office and left messages on several occasions. Id. She

claimed “one lady said that she would not be able to do it because of finances,

that you would need more money.” Id.



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      The parties entered into a stipulation that if Cary’s trial counsel was

called to testify, she would testify that:

         [A]fter sentencing I do not have any record of Mr. Cary
         writing to me to request an appeal. Of course it is
         reasonable to think that he wanted an appeal but since I
         was privately retained I assumed that he had hired someone
         else to do it. He would want to appeal based on an
         aggravated sentence for which the court did not provide
         reasoning for the aggravation. I obviously do not know
         whether he sent me a letter. I can only testify that I never
         got one.

Id. at 22-23. Further, she would have testified that if Ms. Irvine called, counsel

“never received the message. There were several receptionists and I suppose

it is possible that she spoke with someone who answered my line but did not

pass the message.” Id. at 23.

      On August 28, 2017, the PCRA court dismissed the petition. The PCRA

court found the record did not support Cary’s allegations of ineffectiveness.

Trial Court Opinion, filed Jan. 10, 2018, at 7 (“1925(a) Op.”). It found Cary’s

testimony was not credible and found that the letter sent by counsel to Cary

did not support his claim that he requested an appeal. Id. Rather, the letter

discussed Cary’s “litigation options going forward, should he choose to retain

her for an appeal.” Id. The court further noted that the sentencing transcript

did not support Cary’s claim he attempted to communicate with counsel at the

sentencing hearing or that he was removed from the courtroom. Id. at 2. The

court found Cary failed to prove he requested that counsel file a direct appeal.

Id. at 7. It therefore dismissed his petition.

      Cary filed a timely notice of appeal. He raises the following issues:

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         1. Was the Lower Court’s decision to deny reinstatement of
         [Cary’s] appellate rights supported by the evidence?

         2. Was [Cary’s] claim that the verdict was against the
         weight of the evidence and that the discretionary aspects of
         the sentence should be reviewed substantial enough to
         merit reinstating his right to file post sentence motions?

Cary’s Br. at 9 (suggested answers omitted).

      When reviewing the dismissal of a PCRA petition, we examine the PCRA

court’s “findings of fact to determine whether they are supported by the

record, and . . . its conclusions of law to determine whether they are free from

legal error.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)).

      “[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.” Id. However, “the unjustified failure to file a requested direct appeal

is ineffective assistance of counsel per se and . . . an appellant need not show

that he likely would have succeeded on appeal in order to meet the prejudice

prong of the test for ineffectiveness.” Commonwealth v. Bath, 907 A.2d

619, 622 (Pa.Super. 2006); see Commonwealth v. Lantzy, 736 A.2d 564,

571 (Pa. 1999).

      To determine whether counsel is ineffective for failing to file a direct

appeal, the court must determine whether the defendant established that he

requested an appeal and that counsel disregarded that request. Bath, 907




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A.2d at 622 (quoting Commonwealth v. Knighten, 742 A.2d 679, 682

(Pa.Super. 1999)).

      The PCRA court did not credit Cary’s evidence that he asked trial counsel

to file a direct appeal. The PCRA court found Cary’s testimony, that is, that he

wanted to inform counsel at the sentencing but was removed, that he left a

message for counsel, and that he asked his family to inform counsel, not

credible. 1925(a) Op. at 7. It further found the letter from counsel to Cary

stated Cary’s options and informed Cary to contact her if he wished to retain

her for an appeal. Id. The record supports the courts findings, and it did not

err as a matter of law in dismissing the PCRA petition.

      As Cary did not request an appeal, we need not reach his second issue,

regarding the merits of his weight of the evidence and discretionary aspects

of sentencing claims.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/19




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