J-S03029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ENRIQUE MANUEL SANCHEZ A/K/A
ENRIQUE MANUEL ORTIZ

                            Appellant               No. 1819 EDA 2014


                   Appeal from the PCRA Order June 3, 2014
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000885-2012
                                          CP-39-CR-0000886-2012
                                          CP-39-CR-0000890-2012



BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                           FILED APRIL 07, 2015

        Appellant, Enrique Manuel Sanchez a/k/a Enrique Manuel Ortiz,

appeals from the order entered June 3, 2014, which denied his petition filed

pursuant to the Post-Conviction Relief Act (“PCRA”).1   No relief is due.

        On February 11, 2013, Appellant entered a negotiated guilty plea to

Third Degree Murder, Possession of Firearms Prohibited, Firearms Not to be

Carried Without a License, Terroristic Threats (two counts), Recklessly

Endangering Another Person, Possession of a Controlled Substance, and

Simple Assault. Thereafter, the trial court sentenced Appellant pursuant to

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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the agreement to an aggregate term of 40 to 80 years’ imprisonment.

Appellant did not file a direct appeal.

      On October 24, 2013, Appellant filed a pro se PCRA petition. Counsel

was appointed, and an amended PCRA petition was filed on March 14, 2014,

alleging that trial counsel was ineffective for failing to file a direct appeal.

Following a hearing, at which trial counsel testified that Appellant never

requested a direct appeal, the trial court denied Appellant’s petition.    This

timely appeal followed.

      “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), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[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). In order to be eligible for PCRA relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

These issues must be neither previously litigated nor waived. 42 Pa.C.S.A.

§ 9543(a)(3).   “[T]his Court applies a de novo standard of review to the

PCRA court’s legal conclusions.”     Commonwealth v. Spotz, 18 A.3d 244,

259 (Pa. 2011) (citation omitted).

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      Appellant alleges that trial counsel was ineffective for failing to file a

direct appeal as he allegedly requested. We note that the unjustified failure

to file a direct appeal is ineffective assistance of counsel per se and that a

defendant need not demonstrate his innocence or show that he would have

likely succeeded on appeal in order to meet the prejudice prong of the test

for ineffectiveness. See Commonwealth v. Mikell, 968 A.2d 779, 781 (Pa.

Super. 2009). However, before we will find counsel ineffective for failing to

pursue a direct appeal, Appellant bears the burden of proving that he

requested an appeal and that counsel disregarded his request.              See

Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super. 2006). A mere

allegation will not suffice to prove that counsel ignored a defendant’s request

to file an appeal.   See Commonwealth v. Spencer, 892 A.2d 840, 842

(Pa. Super. 2006).

      Appellant contends that he instructed trial counsel to file an appeal at

the conclusion of the sentencing hearing, and that his mother also called

counsel to request an appeal on his behalf.       See Appellant’s Brief at 6.

These allegations, however, were contradicted by trial counsel’s testimony

during the PCRA evidentiary hearing, which the PCRA court explicitly

credited.   See N.T., PCRA Hearing, 05/12/14 at 20; PCRA Court Opinion,

7/23/14 at 5-6. Trial counsel testified that when he explained to Appellant

his limited appeal rights following the entry of his guilty plea, Appellant

never requested an appeal. See id., at 20. Trial counsel further asserted

that he never received any letter or other communication from Appellant’s

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family indicating a desire to pursue an appeal.         See id. at 21.   Counsel

explained that had Appellant requested he file a direct appeal, counsel would

have instructed Appellant to hire someone else because he does not

normally handle appellate work. See id. at 23. However, trial counsel was

adamant that he never had that conversation with Appellant because

Appellant never requested counsel file a direct appeal. See id.

      Based on counsel’s testimony, as credited by the PCRA court, we are

constrained to find that Appellant has failed to adequately support his claim

that counsel ignored his request to file an appeal. See Commonwealth v.

Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) (a PCRA court’s

credibility determinations are binding on this Court where, as here, there is

record support for those determinations).         Accordingly, as Appellant has

failed to meet his burden of proof, his claim that trial counsel was ineffective

for failing to file a direct appeal is without merit.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




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