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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
DWAYNE HILL,                             :         No. 2113 EDA 2016
                                         :
                         Appellant       :


                   Appeal from the PCRA Order, June 27, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0005022-2007


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED SEPTEMBER 11, 2017

        Dwayne Hill appeals from the denial of his PCRA1 petition seeking

restoration of his direct appeal rights nunc pro tunc in this violation of

probation (“VOP”) case. We affirm.

        This history of this case has been aptly summarized by the PCRA court

as follows:

                    On January 11, 2008, following a jury waiver
              trial before the Honorable John M. Younge,
              [appellant] was found guilty of Possession with
              Intent to Deliver (“PWID”) (35 P.S. § 780-113
              §§ A30), Criminal Conspiracy (18 Pa. C.S. § 903
              §§ A1), Simple Possession (35 P.S. § 780-113
              §§ A16), and Possession of Drug Paraphernalia
              (35 P.S. § 780-113 §§ A32). On April 17, 2008,
              [appellant] was sentenced to four (4) years of
              probation for both [the] PWID and Conspiracy
              charges, with no further penalty for the remaining

1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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           charges.     [Appellant]’s case was subsequently
           transferred to the Honorable Rayford A. Means.

                  On August 24, 2008, while on this Court’s
           probation, [appellant] was arrested and charged with
           Rape with Forcible Compulsion (18 Pa. C.S. § 3121
           §§ A1). On May 25, 2013, following a jury trial,
           [appellant] was found guilty of Rape with Forcible
           Compulsion. The victim in that case was a sixteen
           year old girl. At a [VOP] hearing on October 17,
           2013, this Court found [appellant] to be in direct
           violation of its probation.      This Court revoked
           [appellant]’s probation and issued a new sentence of
           five (5) to ten (10) years of confinement for both the
           PWID      and     Conspiracy     charges,    to    run
           concurrently.[2]

                  On December 12, 2013, [appellant] filed a
           petition pursuant to the [PCRA].            Counsel was
           appointed, and on April 14, 2015 filed an amended
           petition. This Court held a PCRA hearing on June 27,
           2016. At that hearing, this Court found [appellant]
           to be incredible, and his PCRA petition was
           subsequently denied.         [Appellant] filed a timely
           Notice of Appeal to the Superior Court of
           Pennsylvania. On August 17, 2016, pursuant to this
           Court’s order, [appellant] filed a Concise Statement
           of Matters Complained of on Appeal [pursuant to
           Pa.R.A.P. 1925(b)], in which he set forth several
           issues and also requested to be able to supplement
           the statement upon receipt of all relevant notes of
           testimony. On October 11, 2016, having confirmed
           the availability of all relevant notes of testimony, and
           having head [sic] nothing further from [appellant],
           this Court issued a second order pursuant to
           Rule 1925(b).      On October 20, 2016, [appellant]
           filed a second Concise Statement.             [Appellant]
           alleges that this Court erred in not reinstating his
           appellate rights nunc pro tunc, for numerous
           reasons which are addressed below.


2
  Appellant’s VOP sentence of 5 to 10 years’ imprisonment was to be served
consecutively to his sentence of 8 to 16 years for rape.


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PCRA court opinion, 11/30/16 at 1-2.

      Appellant has raised the following issues for this court’s review:

            I.     Is [appellant] entitled to reinstatement of his
                   appeal rights nunc pro tunc from the
                   judgment of sentence imposed at his VOP
                   hearing when he proved by a preponderance of
                   the evidence that he requested within 6 days
                   via letter to his counsel that counsel pursue an
                   appeal and when he believed that counsel may
                   not have received the letter, he then filed a
                   PCRA Petition within 60 days of the VOP
                   sentence hearing?

            II.    Was the sentence imposed by the trial court
                   illegal because the trial court did not order that
                   [appellant] be given credit for time served?

            III.   Is [appellant] entitled to a new VOP/sentence
                   hearing    because     he    was    denied    his
                   Constitutional right to an adversarial process at
                   the VOP/sentence hearing?

Appellant’s brief at 2.

            This Court’s standard of review regarding an order
            denying a petition under the PCRA is whether the
            determination of the PCRA court is supported by the
            evidence of record and is free of legal error.
            Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

            To    prevail  on   a    claim   alleging  counsel’s
            ineffectiveness under the PCRA, Appellant must
            demonstrate (1) that the underlying claim is of
            arguable merit; (2) that counsel’s course of conduct


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          was without a reasonable basis designed to
          effectuate his client’s interest; and (3) that he was
          prejudiced by counsel’s ineffectiveness, i.e. there is
          a reasonable probability that but for the act or
          omission in question the outcome of the proceeding
          would have been different.        Commonwealth v.
          Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999);
          Commonwealth v. Douglas, 537 Pa. 588, 645
          A.2d 226, 230 (1994).

Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001).

          It is well settled that when a lawyer fails to file a
          direct appeal requested by the defendant, the
          defendant is automatically entitled to reinstatement
          of his direct appeal rights.    Commonwealth v.
          Lantzy, 558 Pa. 214, 736 A.2d 564 (1999). Where
          a defendant does not ask his attorney to file a direct
          appeal, counsel still may be held ineffective if he
          does not consult with his client about the client’s
          appellate rights. Roe v. Flores-Ortega, 528 U.S.
          470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000);
          [Commonwealth v. Carter, 21 A.3d 680, 682-683
          (Pa.Super. 2011)]. Such ineffectiveness, however,
          will only be found where a duty to consult arises
          either because there were issues of merit to raise on
          direct appeal or the defendant, in some manner,
          displayed signs of desiring an appeal.        Roe v.
          Flores-Ortega, supra.

Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa.Super. 2011),

appeal denied, 40 A.3d 1235 (Pa. 2012).

          The right of a criminal defendant to appeal is
          guaranteed in the Pennsylvania Constitution,
          Article V § 9. However, before a court will find
          ineffectiveness of trial counsel for failing to file a
          direct appeal, Appellant must prove that he
          requested an appeal and that counsel disregarded
          this request.       Commonwealth v. Lehr, 400
          Pa.Super. 514, 583 A.2d 1234, 1235 (1990). Mere
          allegation will not suffice; the burden is on Appellant
          to plead and prove that his request for an appeal


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           was ignored or rejected by trial counsel.
           Commonwealth v. Collins, 546 Pa. 616, 622, 687
           A.2d 1112, 1115 (1996); Commonwealth v.
           Fanase, 446 Pa.Super. 654, 667 A.2d 1166, 1169
           (1995).

Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa.Super. 1999),

appeal denied, 753 A.2d 815 (Pa. 2000) (footnote omitted).

     Appellant alleged that he sent trial counsel a letter on October 18,

2013, the day after sentencing, requesting that counsel file post-sentence

motions and a direct appeal.    Following an evidentiary hearing, the PCRA

court rejected appellant’s claim as not credible. The PCRA court explained,

                  There is no credible evidence on the record to
           support [appellant]’s claim that he requested to file a
           post-sentence motion or appeal.              The only
           corroborating evidence of a request to file such a
           motion is [appellant]’s own testimony that he sent a
           letter to the Defender Association.         This Court
           determined that       [appellant]’s testimony was
           incredible based on the following: (1) There is no
           record that the letter was sent from the prison or
           received at the Defender’s office; (2) An attorney
           who had served with the Defenders for some time
           testified at the hearing that it would have been
           common practice to make a record of such a request
           were it received; and, (3) [appellant] did not
           mention the letter in his original PCRA filing, making
           his testimony and his petition inconsistent with one
           another.    As such, [appellant] has not met his
           burden in demonstrating ineffective assistance of
           counsel.

PCRA court opinion, 11/30/16 at 5.      The PCRA court made a credibility

determination, which is unassailable on appeal.    See Commonwealth v.

Widgins, 29 A.3d 816, 820 (Pa.Super. 2011), citing Commonwealth v.



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Johnson, 966 A.2d 523, 539 (Pa. 2009) (“The PCRA court’s credibility

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

determinations.”).    We have no basis for disturbing the PCRA court’s

determination in this regard.3

      Next, appellant complains that his sentence was illegal because the

trial court failed to award credit for time served from August 24, 2008, when

he was arrested on the rape charge. (Appellant’s brief at 8.) This issue was

not raised in either appellant’s original pro se PCRA petition or in his

counseled amended petition. However, we acknowledge that the issue goes

to the legality of appellant’s sentence and is non-waivable, so long as this

court has jurisdiction.   See Commonwealth v. Little, 612 A.2d 1053,

1053 n.1 (Pa.Super. 1992), citing Commonwealth v. Hollawell, 604 A.2d

723 (Pa.Super. 1992) (“Appellant’s challenge to the trial court’s failure to

award credit for time served prior to sentencing involves the legality of

sentence. A claim challenging the legality of a sentence is appealable as of

right.”); see also Commonwealth v. Edrington, 780 A.2d 721, 723

(Pa.Super. 2001) (“So long as jurisdictional requirements are met, ‘[a]n

illegal sentence can never be waived and may be reviewed sua sponte by


3
  Appellant does not argue that trial counsel had a duty to consult, only that
he specifically requested that trial counsel file a direct appeal and that trial
counsel disregarded his request. See Markowitz, 32 A.3d at 715 n.10
(observing that Harmon is still viable precedent after Roe v.
Flores-Ortega insofar as to establish a claim of per se trial counsel
ineffectiveness, a defendant must demonstrate that counsel neglected to file
a requested direct appeal).


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this court.’”), quoting Commonwealth v. Archer, 722 A.2d 203, 209

(Pa.Super. 1998).

      Nevertheless, appellant was not entitled to credit time where it

appears that all time he served between the date of his August 24, 2008

arrest and his VOP hearing was already credited towards his 8 to 16-year

sentence for rape.   (Commonwealth’s brief at 11.)      His 5 to 10-year VOP

sentence for PWID and conspiracy was run consecutively to his new

sentence on the rape conviction. Appellant is not entitled to double credit.

42 Pa.C.S.A. § 9760(4); Commonwealth v. Ellsworth, 97 A.3d 1255,

1257 (Pa.Super. 2014) (“This Court has held that a defendant is not entitled

to ‘receiv[e] credit against more than one sentence for the same time

served.’”), quoting Commonwealth v. Merigris, 681 A.2d 194, 195

(Pa.Super. 1996); Martin v. Pa. Bd. of Prob. & Parole, 840 A.2d 299, 309

(Pa. 2003) (“[W]here an offender is incarcerated on both a Board [of

Probation and Parole] detainer and new criminal charges, all time spent in

confinement must be credited to either the new sentence or the original

sentence.” (footnote omitted)); Bright v. Pa. Bd. of Prob. & Parole, 831

A.2d 775, 778 (Pa.Cmwlth. 2003) (Section 9760(4) mandates that credit for

time served on a sentence can only be granted when it has not already been

credited toward another sentence).

      Finally, appellant alleges that trial counsel was ineffective for various

reasons including failure to consult with appellant, failure to object to undue



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delay, failure to request a presentence investigation report, failure to

question the probation officer at the VOP hearing, failure to introduce

evidence regarding appellant’s family history and rehabilitative needs, and

failure to request that the trial court put its reasons for appellant’s sentence

on the record.      (Appellant’s brief at 9.)     Appellant argues that this

constituted an abandonment by trial counsel. (Id. at 9-10.) None of these

issues were raised in either appellant’s pro se PCRA petition or in his

counseled amended petition; as such, they are deemed waived.               See

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (“It is

well-settled that issues not raised in a PCRA petition cannot be considered

on appeal.” (quotation marks and citations omitted)); Commonwealth v.

Santiago, 855 A.2d 682, 691 (Pa. 2004) (claim not raised in PCRA petition

cannot be raised for the first time on appeal, and is “indisputably waived”);

42 Pa.C.S.A. § 9544(b).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/11/2017




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