J-S57004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                         Appellee

                    v.

HAROLD ROBERT TITTLE

                         Appellant                   No. 363 EDA 2017


                 Appeal from the PCRA Order April 26, 2016
              In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0000560-2012
                                        CP-45-CR-0000605-2013
                                        CP-45-CR-0001117-2013
                                        CP-45-CR-0001833-2012
                                        CP-45-CR-0003003-2011


BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 19, 2017

      Appellant, Harold Robert Tittle, appeals from the order entered in the

Monroe County Court of Common Pleas, denying his petition pursuant to the

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

      The relevant facts and procedural history of this case are as follows. On

May 21, 2013, Appellant pled guilty to five counts of driving under the

influence (“DUI”). Appellant was then sentenced on October 28, 2013, to two

years of state intermediate punishment. Appellant did not file a direct appeal;

instead, Appellant filed a PCRA petition claiming ineffective assistance of

counsel, which he later withdrew.

      In 2015, Appellant absconded from the program and was charged in
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Lehigh County with escape. On April 13, 2015, he was sentenced to 7 to 23

months’ incarceration by a Lehigh County court. Because the state

intermediate punishment was originally imposed on the DUI charges from

Monroe County, Appellant was also resentenced on those charges. The Monroe

County court imposed a new sentence of an aggregate 45 to 114 months’

incarceration, with 624 days of credit time. The Department of Corrections

subsequently requested clarification on whether the sentence was to run

consecutively or concurrently to the sentence imposed in Lehigh County. The

Monroe County court then issued an amended order on June 26, 2015,

specifying that its sentence was to run consecutively to the Lehigh County

sentence.

      Appellant did not file a post-sentence motion or notice of appeal within

thirty days of his resentencing. Thereafter, Appellant filed a motion for

reconsideration of his sentence nunc pro tunc, limited to a request for

additional time credit. The court granted Appellant’s motion, and set a hearing

date. Before the hearing, Appellant filed a pro se PCRA petition. Since

Appellant’s post-sentence motion for reconsideration of his sentence was still

pending, the court denied Appellant’s PCRA petition. At the reconsideration

hearing on May 28, 2015, the court granted Appellant’s motion for

reconsideration of sentence, and granted him an additional 127 credit days

against his sentence for time previously served.

      Appellant then filed the instant, timely PCRA petition. The court

appointed counsel. PCRA counsel filed an amended petition alleging ineffective

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assistance of sentencing counsel, based on sentencing counsel’s failure to file

a post-sentence motion or direct appeal. Following a hearing, the court denied

Appellant’s PCRA petition on April 26, 2016. Appellant did not file an appeal.

On October 21, 2016, Appellant filed another pro se PCRA, alleging that PCRA

counsel failed to file an appeal to the Superior Court. The PCRA court

ultimately granted Appellant’s subsequent petition and permitted him to file

an appeal nunc pro tunc from the previously denied PCRA petition. Appellant’s

appeal is now properly before us.

      Appellant alleges that sentencing counsel failed to file a post-sentence

motion or direct appeal, despite Appellant’s request to do so. Appellant argues

that he is entitled to have his direct appellate rights reinstated nunc pro tunc.

We disagree.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “[Our] scope of

review is limited to the findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the prevailing party at the PCRA court

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted). “We defer to the PCRA court’s factual findings and credibility

determinations supported by the record.” Commonwealth v. Reyes-

Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015) (en banc) (citation

omitted).

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      Counsel is presumed effective; thus, an appellant has the burden of

proving otherwise. See Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.

Super. 2004). “In order for [an a]ppellant to prevail on a claim of ineffective

assistance of counsel, he must show, by a preponderance of the evidence,

ineffective assistance of counsel which … so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(citation omitted). Further:

      [An a]ppellant must plead and prove by a preponderance of the
      evidence that: (1) the underlying legal claim has arguable merit;
      (2) counsel had no reasonable basis for his action or inaction; and
      (3) Appellant suffered prejudice because of counsel’s action or
      inaction. With regard to the … reasonable basis prong, we will
      conclude that counsel’s chosen strategy lacked a reasonable basis
      only if Appellant proves that an alternative not chosen offered a
      potential for success substantially greater than the course actually
      pursued. To establish the … prejudice prong, [an a]ppellant must
      show that there is a reasonable probability that the outcome of
      the proceedings would have been different but for counsel’s action
      or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations and

quotation marks omitted). A failure to satisfy any prong of the test will require

rejection of the claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.

2014).

      “Generally, if counsel ignores a defendant’s request to file a direct

appeal, the defendant is entitled to have his appellate rights restored.”

Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006) (citing

Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999)). This is because

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“where there is an unjustified failure to file a requested direct appeal, the

conduct of counsel falls beneath the range of competence demanded of

attorneys in criminal cases” and such failing constitutes prejudice per se.

Lantzy, 736 A.2d at 572 (footnote omitted). However, “relief is only

appropriate where the petitioner pleads and proves that a timely appeal was

in fact requested and that counsel ignored that request.” Spencer, 892 A.2d

at 842 (citation omitted).

      With respect to post-sentence motions, counsel is not ineffective per se

when she fails to file post-sentence motions. Rather, to obtain relief based

upon counsel’s failure to file post-sentence motions, a defendant must meet

the traditional three-pronged test for establishing ineffective assistance of

counsel. See Commonwealth v. Reeves, 923 A.2d 119, 1127-1132 (Pa.

2007). See also Commonwealth v. Liston, 977 A.2d 1089, 1093-1094 (Pa.

2009).

      Instantly, the PCRA court heard testimony from Appellant’s sentencing

counsel. Sentencing counsel testified that Appellant did not ask her to file a

post-sentence motion or direct appeal within the time limits. See N.T., PCRA

Hearing, 4/4/16, at 10. Counsel stated that Appellant contacted her over 30

days after his May 28, 2015 resentencing, and asked counsel about additional

time credits. See id., at 11. Counsel testified that she filed a motion for

reconsideration of sentence limited to the time credit issue. See id. Counsel

said that after the motion for reconsideration was granted and Appellant was


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given the additional time credit, Appellant did not ask her to file anything else.

See id., at 14. Curiously, Appellant did not testify at the PCRA hearing.

      The PCRA court found credible counsel’s testimony that Appellant did

not ask her to file a post-sentence motion or direct appeal challenging his

sentence. See PCRA Court Opinion, filed 4/26/16, at 6. The PCRA court also

noted that Appellant was informed at his sentencing of his right to file a post-

sentence motion or a direct appeal. See id. There is record support for the

PCRA court’s credibility determinations, and we defer to these. See Reyes-

Rodriguez, 111 A.3d at 779. Thus, we affirm the PCRA’s order denying

Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2017




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