J-S31005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 DORIAN MILLER                             :
                                           :
                    Appellant              :    No. 835 EDA 2017

               Appeal from the PCRA Order February 3, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0002744-2013


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.:                                FILED JULY 26, 2018

      Appellant, Dorian Miller, appeals from the order entered on February 3,

2017, that denied his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

      In its August 9, 2017 opinion, the PCRA court set forth the facts and

procedural background of this case as follows:

             On August 11, 2014, [Appellant] pleaded guilty to two
      violations of the Uniform Firearms Act, 18 Pa.C.S. §§ 6105 and
      6106. N.T. 8/11/14, 6-8. The court accepted [Appellant’s] plea
      and deferred sentencing for purposes of a presentence
      investigation.    On October 16, 2014, the court sentenced
      [Appellant] to an aggregate term of five and one-half to eleven
      years of incarceration, followed by three years of probation.
      [Appellant] did not file a post-sentence motion or a notice of direct
      appeal. On April 7, 2015, [Appellant] filed a pro se petition
      pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541, et
      seq[.] Appointed counsel filed an amended petition on March 15,
      2016, alleging that plea counsel was ineffective for failing to file a
      “Motion for Reconsideration of Sentence and/or an appeal” at his
      request. See Amended PCRA Petition, ¶ 4.
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            This court held an evidentiary hearing on December 22,
     2016. At the hearing, [Appellant] testified that at the conclusion
     of the sentencing hearing, he asked his attorney to file a motion
     for reconsideration of sentence, explaining, “I feel that I could
     have gotten lesser time than I got[.]” N.T. 12/22/16, 6-7. He
     testified that his attorney did not say anything in response and
     that he never followed up with her or her office. Id[.] at 7, 14.
     [Appellant] testified that he thinks he wrote to his attorney once
     concerning the motion for reconsideration, but acknowledged that
     if he had written to her, it would have been after he filed his PCRA
     petition (i[.]e., approximately six months after he was
     sentenced). Id. at 13. [Appellant] did not testify that he had ever
     requested that his attorney file a notice of appeal on his behalf.

            [Appellant’s] plea counsel, Micah Shender, Esquire, also
     testified at the hearing. Ms. Shender, who has been practicing
     law since 2010, is an attorney with the Defender Association of
     Philadelphia. Id[.] at 16-17. Although Ms. Shender has handled
     hundreds of guilty pleas during her years in practice, she had a
     detailed recollection of [Appellant’s] case and her conversations
     with [Appellant] concerning the plea. Id. at 18-19. She recalled
     discussing with him the limited appellate rights he would have if
     he entered the plea. Id. at 20. Ms. Shender also specifically
     remembered the sentencing hearing. Id[.] at 18-19. At the
     conclusion of the hearing, she advised [Appellant] of the
     following:

                 Mr[.] Miller, the Honorable Judge Woelpper has
           considered all of the arguments at sentencing. She
           has sentenced you to a total of five and a half to 11
           years of incarceration, followed by three years of
           probation. You’ll receive credit for all of the time that
           you sat in prison.

                 You have ten days to file a motion for
           reconsideration if you think there was something she
           didn’t take into account. You have thirty days to file
           an appeal to the higher court based on the limited
           grounds that we discussed when you entered your
           plea. If you wish to exercise either of those rights,
           they have to be done through written motions. So
           please contact my office and we’ll file it on your behalf.
           They won’t be filed automatically.


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      N.T. 10/16/14, 26-27.

             Ms. Shender testified that [Appellant] did not ask her to file
      a motion for reconsideration of sentence, nor did he ask to discuss
      any other matter with her. Id[.] at 20. In fact, on October 16,
      2014 (the day of sentencing), Ms. Shender wrote “no” on the
      portion of [Appellant’s] file where she indicates whether a client
      has asked for an appeal. Id[.] at 22. Although Ms. Shender
      acknowledged having received correspondence from [Appellant]
      while he was in custody, she did not receive anything from him
      following his sentencing and specifically nothing asking her to file
      an appeal or motion for reconsideration. Id. at 23. The next time
      Ms. Shender heard from [Appellant] was when he filed a PCRA
      petition alleging that her representation was ineffective. Id. at
      21. Upon learning of his claim, Ms. Shender reviewed every
      voicemail she had received in the thirty days following
      [Appellant’s] sentencing.       There was no message from
      [Appellant]. Id[.]

            This court found counsel’s testimony that [Appellant] never
      asked her to file a motion for reconsideration or notice of appeal
      credible and denied [Appellant’s] PCRA petition. . . .

Trial Court Opinion, 8/9/17, at 1-3.

      The PCRA court denied Appellant’s petition on February 3, 2017.

Appellant filed a timely notice of appeal, and both the trial court and Appellant

complied with Pa.R.A.P. 1925. On appeal, Appellant raises the following issue

for this Court’s determination:

      Did the Honorable PCRA [c]ourt err when it determined that
      [Appellant] had not asked his trial counsel to take an appeal?

Appellant’s Brief at 3.

      Our standard of review of a PCRA court’s denial of a petition for post-

conviction relief is well settled, as set forth as follows:

           “Our review of a PCRA court’s decision is limited to
      examining whether the PCRA court’s findings of fact are supported

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      by the record, and whether its conclusions of law are free from
      legal error.” Commonwealth v. Hanible, 612 Pa. 183, 204, 30
      A.3d 426, 438 (2011) (citing Commonwealth v. Colavita, 606
      Pa. 1, 21, 993 A.2d 874, 886 (2010)). We view the findings of
      the PCRA court and the evidence of record in a light most favorable
      to the prevailing party. Id. . . . “The PCRA court’s credibility
      determinations, when supported by the record, are binding on this
      Court; however, we apply a de novo standard of review to the
      PCRA court’s legal conclusions.” Commonwealth v. Roney, 622
      Pa. 1, 16, 79 A.3d 595, 603 (2013).

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

      To plead and prove ineffective assistance of counsel, a petitioner must

establish:   (1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice resulted

from counsel’s act or failure to act. Commonwealth v. Stewart, 84 A.3d

701, 706 (Pa. Super. 2013) (en banc). Failure to establish any one of these

prongs will defeat an ineffectiveness claim. Mason, 130 A.3d at 618.

      Additionally, our Supreme Court has held that 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 denies the accused the assistance of counsel guaranteed by the Sixth

Amendment to the United States Constitution and Article I, Section 9 of the

Pennsylvania Constitution, as well as the right to direct appeal under Article

V, Section 9, thus constituting prejudice and per se ineffectiveness for PCRA

purposes. Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999). In

such circumstance, a defendant is automatically entitled to reinstatement of

his appellate rights. Id.

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      However, where a defendant has not clearly conveyed his wishes to

counsel,

            counsel has a constitutionally-imposed duty to consult
            with the defendant about an appeal when there is
            reason to think either (1) that a rational defendant
            would want to appeal (for example, because there are
            nonfrivolous grounds for appeal), or (2) that this
            particular defendant reasonably demonstrated to
            counsel that he was interested in appealing. In
            making this determination, courts must take into
            account all the information counsel knew or should
            have known.

Commonwealth v. Touw, 781 A.2d 1250, 1254 (Pa. Super. 2001) (quoting

Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)). To obtain relief, Appellant

must also show prejudice, which in these circumstances requires a showing

that “there is a reasonable probability that, but for counsel's deficient failure

to consult with him about an appeal, he would have timely appealed.” Flores-

Ortega, 528 U.S. at 484.

      In the present case, Attorney Shender unambiguously informed

Appellant on the record that he would need to contact her if he wanted to

appeal. N.T. 10/16/14, 27. At the PCRA hearing, Attorney Shender testified

that Appellant never asked her to file a motion for reconsideration of sentence,

nor did he ask to discuss any other matter with her. N.T., 12/22/16, at 20.

Attorney Shender testified that she specifically noted on Appellant’s file that

he did not want to file any motion or appeal. Id. at 22. As stated above,




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Attorney Shender received some communications from Appellant,1 but

nothing in those letters informed counsel that Appellant wanted to pursue an

appeal. Id. at 23.

       We find that the record amply supports the PCRA court’s conclusion that

Attorney Shender informed Appellant of his limited appeal rights following his

guilty plea, and she instructed him to inform her if he wanted to file an appeal.

However,      despite      counsel’s     instruction,   Appellant   did   not   ask

Attorney Shender to pursue an appeal, and following a hearing, the PCRA

court found Attorney Shender’s testimony credible.           Order and Findings of

Fact, 2/3/17; PCRA Court Opinion, 8/9/17, at 4. After review, we conclude

that the PCRA court’s decision is supported by the record, and it is free from

legal error. Mason, 130 A.3d at 617. Accordingly, Appellant is entitled to no

relief, and we affirm the order denying his PCRA petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/26/18


____________________________________________


1  Attorney Shender testified that Appellant’s file contained letters Appellant
wrote while in custody and a motion Appellant filed pursuant to Pa.R.Crim.P.
600 prior to the entry of his guilty plea, but she had no correspondence
following the imposition of sentence. N.T., 12/22/16, at 23.

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