J-S53038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JUSTIN RAY MILLER,

                            Appellant                 No. 615 WDA 2014


                  Appeal from the PCRA Order March 21, 2014
                in the Court of Common Pleas of Fayette County
               Criminal Division at No.: CP-26-CR-0000928-2011


BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 29, 2014

        Appellant, Justin Ray Miller, appeals from the order of March 21, 2014,

which denied his amended counseled petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We vacate and

remand.

        On November 8, 2012, a jury found Appellant guilty of burglary,

criminal trespass, and theft by unlawful taking.1    On November 20, 2012,

Appellant filed a pro se motion to dismiss counsel for ineffectiveness.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(ii), and 3921(a), respectively.
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       On December 6, 2012, the court sentenced Appellant to a term of not

less than eighteen nor more than thirty-six months’ imprisonment.           The

Public Defender’s Office represented Appellant at trial and sentencing.2

       Appellant, although still represented by the Public Defender’s Office,

filed an otherwise timely pro se direct appeal on December 14, 2012 in

violation of the prohibition of hybrid representation. See Commonwealth

v. Jette, 23 A.3d 1032, 1035-44 (Pa. 2011); Commonwealth v. Ellis, 626

A.2d 1137, 1039-41 (Pa. 1993).                 On February 25, 2013, this Court

dismissed Appellant’s appeal for failing to file a docketing statement

pursuant to Pa.R.A.P. 3517.          Appellant did not petition the Pennsylvania

Supreme Court for allowance of appeal.

       On November 14, 2013, Appellant timely filed a pro se PCRA petition.

The PCRA court appointed Attorney James V. Natale to represent Appellant,

and counsel filed an amended PCRA petition on January 3, 2014. The court

scheduled a hearing for March 18, 2014.             (PCRA Court Order, 1/09/14).

However, the PCRA court then ordered that “at the time set for hearing, the

Superior Court having denied the [Appellant’s] [a]ppeal on February 25,

2013, the request of the [Appellant] to appeal the case nunc pro tunc is

DENIED.” (PCRA Court Order, Dated 3/18/14 and Filed 3/21/14). There is


____________________________________________


2
  The record indicates that Attorney Jeffrey W. Whiteko represented
Appellant through the trial and Attorney Benjamin F. Goodwin represented
him at the sentencing hearing.



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no indication in the record that the March 18, 2014 hearing occurred. On

April 16, 2014, Appellant again filed a prohibited pro se but otherwise timely

appeal.      See Jette, supra at 1035-44; Ellis, supra at 1039-41.

Nevertheless, since counsel filed a statement of errors and a brief, we will

review counsel’s statement of errors and brief. Pursuant to the PCRA court’s

order, Appellant filed a counseled Rule 1925(b) statement on May 6, 2014.

The court entered its Rule 1925(a) statement in lieu of an opinion dated May

23, 2014 and filed on May 27, 2014.3

       Appellant, through counsel, raises the following issue for our review:

             Whether the [PCRA] court erred in dismissing Appellant’s
       PCRA petition without [a] hearing when Appellant’s legal
       counsel, Benjamin F. Goodwin, Esq. in his capacity as a public
       defender, was ineffective for failing to file an appeal of
       Appellant’s judgment of sentence despite Appellant instructing
       him to file such an appeal[?]

(Appellant’s Brief, at 3).

       Our standard of review is well-settled:

             When reviewing the propriety of an order granting or
       denying PCRA relief, this Court is limited to determining whether
       the evidence of record supports the determination of the PCRA
       court and whether the ruling is free of legal error. Great
       deference is granted to the findings of the PCRA court, and these
____________________________________________


3
  That statement reads in the pertinent portion, “[f]inding that we have
previously addressed all issues, we will rely on our Order entered on March
21, 2014, denying the relief sought.” The Order entered on March 21, 2014,
denied Appellant’s request to file an appeal from the judgment of sentence
nunc pro tunc on the basis that we had dismissed Appellant’s pro se appeal
for failure to file a docketing statement.



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     findings will not be disturbed unless they have no support in the
     certified record.

Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012), appeal

denied, 67 A.3d 796 (Pa. 2013) (citations omitted).

     It is well-settled that matters that are not of record cannot be

considered on appeal.   “[A]ny document which is not part of the officially

certified record is deemed non-existent . . . [and] [t]his Court cannot

meaningfully review claims raised on appeal unless we are provided with a

full and complete certified record.” Commonwealth v. Preston, 904 A.2d

1, 6-7 (Pa. Super. 2006) (citations omitted), appeal denied, 916 A.2d 632

(Pa. 2007).

     A PCRA petitioner is not entitled to a hearing unless the petition

presents genuine issues of material fact and an order denying a petition

without a hearing will not be reversed absent a finding of an abuse of

discretion. See Commonwealth v. McLaurin, 45 A.3d 1131, 1135-36 (Pa.

Super. 2012), appeal denied, 65 A.3d 412 (Pa. 2013). Pennsylvania Rule of

Criminal Procedure 907 provides:

     (1) The judge shall promptly review the petition, any answer
     by the attorney for the Commonwealth, and other matters of
     record relating to the defendant’s claim(s). If the judge is
     satisfied from this review that there are no genuine issues
     concerning any material fact and that the defendant is not
     entitled to post-conviction collateral relief, and no purpose would
     be served by any further proceedings, the judge shall give notice
     to the parties of the intention to dismiss the petition and shall
     state in the notice the reasons for the dismissal. The defendant
     may respond to the proposed dismissal within 20 days of the
     date of the notice. The judge thereafter shall order the petition



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      dismissed, grant leave to file an amended petition, or direct that
      the proceedings continue.

                                 *   *     *

      (4) When the petition is dismissed without a hearing, the
      judge promptly shall issue an order to that effect and shall
      advise the defendant by certified mail, return receipt requested,
      of the right to appeal from the final order disposing of the
      petition and of the time limits within which the appeal must be
      filed. The order shall be filed and served as provided in Rule
      114.


Pa.R.Crim.P. 907.

      Here, Appellant claims that he received ineffective assistance of

counsel from counsel’s failure to file an appeal of his judgment of sentence.

(See Appellant’s Brief, at 6).   Before we may review Appellant’s claim of

ineffectiveness of counsel, we must determine whether he was entitled to a

hearing. See McLaurin, supra at 1135-36.

      The record is devoid of any indication that the court issued a Rule 907

notice.   However, Appellant has not challenged that action on appeal and

“[t]he failure to challenge the absence of a Rule 907 notice constitutes

waiver.” Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013)

(citations omitted).

      Counsel is presumed effective, and an appellant bears the burden to

prove otherwise.    See Commonwealth v. Bennett, 57 A.3d 1185, 1195

(Pa. 2012). An appellant must demonstrate that: (1) his underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his

action or inaction; and (3) the appellant suffered actual prejudice as a


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result.   See Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).

However, where as here the claim is counsel’s failure to file a direct appeal,

Pennsylvania utilizes a per se ineffectiveness test rather than the Pierce

test. See Commonwealth v. Lantzy, 736 A.2d 564, 571 (Pa. 1999).

      To avoid a finding of waiver, an appellant must establish that he

“requested [counsel to file] an appeal and that counsel disregarded the

request.”     Commonwealth v. Hudson, 485 A.2d 487, 489 (Pa. Super.

1984).      A PCRA court must hold a hearing to determine “whether [an]

[a]ppellant requested that counsel so appeal.      If it is determined that this

request was made and counsel failed to comply, [an] [a]ppellant’s rights

must be reinstated.” See Commonwealth v. Daniels, 737 A.2d 303, 305

(Pa. Super. 1999). However, “[a] PCRA court may decline to hold a hearing

if the petitioner’s claim is patently frivolous and is without a trace of support

in either the record or from other evidence.”        See Commonwealth v.

Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001).

      In his brief, Appellant admits that he “initially signed a form stating

that he did not wish to appeal his conviction and judgment of sentence[.]”

(Appellant’s   Brief, at 9).     Nevertheless, he further claims        that he

subsequently wrote to the Public Defender’s Office requesting that they file

an appeal on his behalf. (See id.). He provides no details or support.

      A “[m]ere allegation will not suffice; the burden is on [an] [a]ppellant

to plead and prove that his request for an appeal was ignored or rejected by

trial counsel.”   Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa.

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Super. 1999), appeal denied, 753 A.2d 815 (Pa. 2000) (citations omitted).

An appellant “must present the facts supporting each issue asserted . . . and

if they do not appear on the record . . . must identify affidavits, documents

or other evidence proving the alleged facts.” Commonwealth v. Collins,

687 A.2d 1112, 1115 (Pa. 1996) (citation omitted).

      However, “the PCRA court did not make -- in fact, could not make --

any factual findings . . . because it [denied] Appellant’s PCRA petition

without first holding an evidentiary hearing[.]” Commonwealth v. Carter,

21 A.3d 680, 684 (Pa. Super. 2013), appeal after remand, 64 A.3d 273 (Pa.

Super. 2013), appeal denied, 72 A.3d 600 (Pa. 2013).            Therefore, “the

record is insufficient to permit appellate review of Appellant’s claim that trial

counsel failed to” file his requested direct appeal. Id.

      The PCRA court erred in denying Appellant’s PCRA petition without a

hearing.   See id.    Accordingly, we vacate the order denying Appellant’s

PCRA petition and remand for a hearing consistent with this decision.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2014




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