J-S07044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KELCEY LEE HANN

                            Appellant                No. 898 MDA 2014


                  Appeal from the PCRA Order April 28, 2014
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0001262-2010


BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                               FILED APRIL 17, 2015

        Kelcey Lee Hann appeals from the order entered April 28, 2014, in the

Court of Common Pleas of Franklin County, denying, after a hearing, his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §

9541 et seq. Hann seeks relief from the December 14, 2011, judgment of

sentence of five to ten years’ imprisonment, imposed after a jury found him

guilty of one count of aggravated assault.1 In this appeal, Hann’s sole claim

is that trial counsel was ineffective for failing to perfect a direct appeal to

this Court, as requested.2 For the reasons set forth below, we affirm.

____________________________________________


1
    18 Pa.C.S. § 2702(a)(1).
2
  Hann preserved this issue by timely complying with the order of the PCRA
court to file a statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b).
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      The PCRA court concisely set forth the background of this case, which

we incorporate by reference. See PCRA Court Opinion, 4/28/2014, at 1–2.

      The principles that guide our review are as follows:

      On appeal from the denial of PCRA relief, our standard of review
      requires us to determine whether the ruling of the PCRA court is
      supported by the record and free of legal error. Commonwealth
      v. Washington, 592 Pa. 698, 927 A.2d 586, 593-94 (Pa. 2007).
      To be eligible for relief based on a claim of ineffective assistance
      of counsel, a PCRA petitioner must demonstrate by a
      preponderance of the evidence that (1) the underlying claim is of
      arguable merit; (2) no reasonable basis existed for counsel's
      action or omission; and (3) there is a reasonable probability that
      the result of the proceeding would have been different absent
      such error. Commonwealth v. Steele, 599 Pa. 341, 961 A.2d
      786, 796 (Pa. 2008).

Commonwealth v. Widgins, 29 A.3d 816, 819 (Pa. Super. 2011).

      It is well settled that the unjustified failure to file a requested direct

appeal is ineffective assistance of counsel per se and that 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), appeal denied, 918 A.2d 741 (Pa.

2007).    However, “[b]efore a court will find ineffectiveness of counsel for

failing to file a direct appeal, the defendant must prove that he requested an

appeal and that counsel disregarded that request.” Id. (citation omitted).

      At the December 27, 2013, PCRA hearing, trial counsel, Karl Rominger,

Esquire, who was retained by Hann’s mother, testified regarding his

discussion of a direct appeal with Hann’s family. He stated, “[W]hen we got

the denial [of the post sentence motion] … they [Hann’s parent’s] were


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going to decide whether they wanted to pay for the appeal or whether he

was going to serve his time, and I indicated to them that they needed to let

me know what he wanted to do, and I would act accordingly, and I never

heard back from them.” N.T., 12/27/2014, at 22. Hann, in his testimony,

stated that after sentencing, trial counsel “said that he was going to file

motions, and see what happened with that, then he was going to file my

appeal.” Id. at 45. Hann further testified that after the trial court granted

his post-sentence motion for bail, trial counsel told him “to go home and

spend time with your family and if we get the appeal granted, which means

… a new trial, then we’ll be talking about the payments ….” Id. at 48.

      The PCRA court found Hann’s testimony lacking in credibility, found

trial counsel’s testimony to be credible, and concluded no relief was due on

Hann’s claim of ineffectiveness for failure to file a direct appeal.   The   PCRA

Court, in support of its determination, opined:

      In considering [Hann’s] credibility we assessed his demeanor, his
      apparent uncertainty in what he wanted to say, and the overall
      shaky delivery of his testimony. In the Court’s experience it
      would seem exceptionally unlikely that an attorney that is
      privately retained for a fee would offer to go through an entire
      appeal process without requiring any payment or even
      discussing payment with the client until after an appeal is
      granted as [Hann]       suggests was the case with Attorney
      Rominger. As such, we do not believe [Hann’s] testimony in
      regards to his conversations with trial counsel.

            At the PCRA hearing trial counsel testified that he had
      spoken with [Hann’s] family members immediately after
      [Hann’s] sentencing hearing about the filing of a direct appeal.
      Attorney Rominger testified that “the family was trying to decide
      whether they wanted to pay for an appeal or not or whether he

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     wanted to start serving his time and be done with his sentence.”
     He further testified that he met with [Hann’s] family members
     instead of [Hann] directly because he did not know [Hann] had
     been released on bail. Attorney Rominger met with [Hann’s]
     family members on a couple of occasions where “[he] indicated
     to them that they needed to let [him] know what [Hann]
     wanted to do, and [he] would act accordingly, and [he] never
     heard back from them.” Moreover, Attorney Rominger testified
     that [Hann’s] fee agreement did not include the cost of an
     appeal, as is the regular practice at his firm. He testified, “[w]e
     make that very clear that you are hiring us for either a resolution
     short of jury trial or a jury trial, and either one would include
     sentencing.” Attorney Rominger uses a separate fee agreement
     for post-trial matters including appeals. He indicated that he told
     [Hann’s] family that he would charge about $2000 to file an
     appeal and such fee was never paid, as admitted to in [Hann’s]
     own testimony.

            Upon review of the record and consideration of the
     testimony taken at the PCRA hearing we make the following
     findings of fact. [Hann] retained Attorney Rominger throughout
     his trial as a private attorney meaning his representation as
     counsel was based on fee agreements. This is not the case
     where trial counsel was appointed and it is expected that
     appointed counsel continue representation after sentencing. The
     original fee agreement was for representation throughout trial
     and did not include representation on appeal, as is the regular
     practice of Attorney Rominger’s firm. Furthermore, from the
     outset of his representation[,] Attorney Rominger had
     communicated with [Hann’s] family in regards to Attorney
     Rominger’s representation of [Hann]. [Hann] even testified that
     his mother was the one who hired Attorney Rominger. Attorney
     Rominger met with [Hann’s] family on multiple occasions,
     advised them that the cost of an appeal would be about $2000
     and that they needed to inform him as to whether they wanted
     to proceed with an appeal. [Hann’s] family indicated to trial
     counsel that they were not sure if they wanted to pay for an
     appeal or whether [Hann] would just serve his sentence. [Hann]
     and his family never paid a fee to Attorney Rominger for the
     filing of an appeal, as made clear by [Hann’s] own testimony.

          [Hann] bears the burden of demonstrating that he
     requested an appeal. [Hann’s] failure and his family’s failure to
     pay any money towards an appeal is strong circumstantial

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        evidence against a showing of an affirmative request for appeal.
        The initial fee agreement and the fact that [Hann’s] family was
        informed of the cost of appeal put [Hann] on notice that
        representation by trial counsel did not automatically carry over
        to an appeal, as a new fee agreement was required for
        representation on appeal. While trial counsel informed the Court
        during the sentencing hearing that he was intending on filing an
        appeal, it was clearly subject to a request by [Hann] or [Hann’s]
        family pursuant to his discussion with [Hann’s] family directly
        after the sentencing hearing where trial counsel told [Hann’s]
        family they needed to let him know if they wanted to file an
        appeal. [Hann] and his family never made such a request.

              As discussed earlier, we find [Hann’s] testimony relating to
        his conversations with Attorney Rominger relating to the filing of
        an appeal to be incredible. Even if we were to believe [Hann’s]
        testimony, his interaction with Attorney Rominger after the bail
        and restitution hearing did not amount to a request to file an
        appeal. While it may suggest the mere possibility of filing an
        appeal, the testimony does not indicate that [Hann] actually
        requested Attorney Rominger to proceed with the filing of an
        appeal.

        It is [Hann’s] burden to establish that he actually requested trial
        counsel to file an appeal. In light of the evidence before the
        Court, including testimony taken at the PCRA hearing, [Hann]
        has failed to meet his burden. Attorney Rominger’s decision not
        to file an appeal to the Superior Court was justified as he was
        not requested to do so. Therefore, [Hann’s] ineffective
        assistance of counsel claim based on trial counsel’s failure to file
        an appeal must fail.

PCRA Court Opinion, 4/28/2014, at 4–7.

        In light of the conflicting testimony presented at the PCRA hearing, we

apply    the   following   legal   maxim.      “The   PCRA    court’s   credibility

determinations are binding on this Court, where the record supports those

determinations.” Widgins, supra, 29 A.3d at 820 (citation omitted). See

also Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011) (appellate



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courts are required to give great deference to a PCRA court’s credibility

determinations, and if supported by the record, the determinations are

binding on a reviewing court).   Our review confirms that the PCRA court’s

findings and determinations are supported by the record and, therefore, we

must accept them. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2015




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