J-S58043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    JEFFREY ELDON MILES, SR.                   :
                                               :
                      Appellant                :        No. 558 MDA 2017

                  Appeal from the PCRA Order March 13, 2017
                In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0001892-2012


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                         FILED NOVEMBER 14, 2017

        Appellant, Jeffrey Eldon Miles, Sr., appeals from the order entered in

the Franklin County Court of Common Pleas, which dismissed his first

petition brought pursuant to the Post Conviction Relief Act (“PCRA”).1        We

reverse and remand for further proceedings.

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

On November 20, 2014, a jury convicted Appellant of first-degree murder in

connection with the 1995 death of Victim.           The court sentenced Appellant

that day to life imprisonment.          Following sentencing, the court explained

Appellant’s post-sentence/appellate rights and informed Appellant that trial

counsel would continue to provide legal representation if Appellant wanted to
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1   42 Pa.C.S.A. §§ 9541-9546.
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file post-sentence motions or a direct appeal. Trial counsel did not file post-

sentence motions or a direct appeal on Appellant’s behalf.

       Within the 30-day appeal period, on December 9, 2014, Appellant filed

a pro se document titled “Direct Appeal for Denial of Mistrial.” In this filing,

Appellant alleged that two days prior to the conclusion of trial, two jurors

had observed Appellant handcuffed in the court elevator. Appellant claimed

the   jurors’   observation      of   Appellant   in   handcuffs   undermined   his

presumption of innocence and warranted a new trial. After confirming with

court deputies that a juror had seen Appellant in handcuffs,2 trial counsel

made an oral motion for a mistrial on the last day of trial, which the court

denied. Appellant sought to appeal the court’s ruling.

       On December 18, 2014, the court entered an order explaining it would

take no further action on Appellant’s pro se filing based on the rule against

hybrid representation, because Appellant was still represented by counsel of

record. Instead, the court directed the clerk of courts to forward Appellant’s

pro se filing to defense counsel and counsel for the Commonwealth pursuant

to Pa.R.Crim.P. 576(A)(4) (stating in any case in which defendant is

represented by attorney, if defendant submits written motion, notice or

document that has not been signed by defendant’s attorney, clerk of courts

shall accept it for filing and forward copy of time-stamped document to
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2Trial counsel discovered one juror and one tipstaff had seen Appellant in
handcuffs.



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defendant’s attorney and attorney for Commonwealth within 10 days of

receipt).   Additionally, the court’s order provided: “THE DEFENDANT IS

FURTHER DIRECTED to file a request to waive the right to counsel and

proceed pro se should he wish to represent himself on direct appeal or to

discuss the filing of his Direct Appeal for Denial of Mistrial with his counsel.”

(Order, filed 12/18/14, at 1) (emphasis in original). Nothing else took place

regarding Appellant’s direct appeal.

      Appellant timely filed a pro se PCRA petition on November 19, 2015,

alleging, inter alia, trial counsel was ineffective for failing to file a direct

appeal on Appellant’s behalf.    The court appointed PCRA counsel the next

day. After several extensions of time, Appellant filed a counseled amended

PCRA petition on June 10, 2016. In his amended petition, Appellant claimed

trial counsel was ineffective for: (1) failing to file a direct appeal on

Appellant’s behalf, where counsel was on notice by way of Appellant’s

December 9, 2014 pro se filing that he wanted to appeal; and (2) failing to

file a motion to suppress Appellant’s incriminating statements to police.

      The court held a PCRA hearing on August 4, 2016.             Trial counsel

testified at the PCRA hearing, inter alia: (1) aside from reviewing the docket

entries in this case, counsel had no independent recollection of receiving

Appellant’s pro se motion to file an appeal; (2) nevertheless, counsel’s

invoice for Appellant’s representation confirmed counsel had reviewed the

pro se filing; (3) trial counsel probably did not reach out to Appellant


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following receipt of the pro se filing because the court’s December 18, 2014

order placed the onus on Appellant to contact counsel if Appellant wanted to

pursue the appeal; (4) counsel did not believe Appellant’s challenge to the

court’s denial of his motion for a mistrial would succeed on appeal; and (5)

counsel did not file a suppression motion because counsel had unsuccessfully

litigated a suppression motion in another case involving Appellant; Appellant

made the statements at issue in this case at the same time he made

incriminating statements in the other case, so the basis for filing a

suppression motion would have been the same and likely yielded another

unsuccessful result.

      Appellant testified at the PCRA hearing, inter alia: (1) trial counsel

failed to file a suppression motion on Appellant’s behalf because counsel said

he was a “trial lawyer” and not a “motion-filing attorney”; (2) after the court

read Appellant’s post-sentence/appellate rights, Appellant told counsel he

wanted to appeal; (3) trial counsel said he would visit Appellant in two to

four days to discuss filing an appeal; (4) trial counsel did not visit Appellant

as promised; and (5) Appellant wanted to challenge the court’s denial of his

motion for a mistrial on direct appeal. The court deferred ruling on the PCRA

petition pending submission of post-hearing briefs.

      Appellant filed a post-hearing brief on October 13, 2016.             The

Commonwealth submitted its brief on October 28, 2016.           On March 13,

2017, the court denied PCRA relief. Appellant timely filed a notice of appeal


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on March 28, 2017. On March 31, 2017, the court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Appellant timely complied on April 18, 2017.

        Appellant raises the following issues for our review:

           DID THE [PCRA] COURT ERR BY DENYING APPELLANT’S
           AMENDED PCRA PETITION WHEN THE [PCRA] COURT
           CONCLUDED THAT [APPELLANT] NEVER CONTACTED
           TRIAL COUNSEL REGARDING [APPELLANT’S] DESIRE TO
           FILE AN APPEAL WHEN TRIAL COUNSEL ADMITTED TO
           RECEIVING AND REVIEWING [APPELLANT’S] PRO SE
           DIRECT APPEAL FOR DENIAL OF MISTRIAL?

           DID THE [PCRA] COURT ERR BY DENYING APPELLANT’S
           AMENDED PCRA PETITION WHEN THE [PCRA] COURT
           CONCLUDED THAT TRIAL COUNSEL HAD A REASONABLE
           BASIS FOR NOT FILING A MOTION TO SUPPRESS
           INCRIMINATING STATEMENTS MADE BY [APPELLANT]?

(Appellant’s Brief at 4).3

        Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if       the    record contains any support for      those     findings.

Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001).             If the record

supports a post-conviction court’s credibility determination, it is binding on

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3   For purposes of disposition, we have re-ordered Appellant’s issues.



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the appellate court. Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297

(2011). “A PCRA court’s legal conclusions, however, are reviewed de novo.”

Commonwealth v. Green, ___ A.3d ___, 2017 PA Super 243 (filed July

24, 2017).

      In his first issue, Appellant argues he took adequate steps to protect

his appellate rights by filing a “Direct Appeal for Denial of Mistrial,” within

the 30-day appeal period.      Appellant asserts that trial counsel’s billing

statement introduced as an exhibit at the PCRA hearing proves counsel

reviewed Appellant’s pro se filing. Appellant claims the docket entries also

confirm the clerk of courts forwarded Appellant’s pro se filing to trial

counsel’s courthouse mailbox, where trial counsel admitted he receives mail.

Appellant insists trial counsel was ineffective for failing to file an appeal on

Appellant’s behalf and/or failing to consult with Appellant about whether to

pursue an appeal, in light of Appellant’s pro se filing.   If his direct appeal

rights are reinstated nunc pro tunc, Appellant contends he will challenge the

sufficiency of the evidence, the weight of the evidence, and the denial of his

motion for a mistrial. Appellant concludes trial counsel was ineffective, and

this Court must reverse and remand for reinstatement of his direct appeal

rights nunc pro tunc. We agree relief is due.

      The    law   presumes   counsel   has   rendered   effective   assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005).              Generally, when


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asserting a claim of ineffective assistance of counsel, the petitioner is

required to plead and prove: (1) the underlying claim has arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and

(3) but for the errors and omissions of counsel, there is a reasonable

probability the outcome of the proceedings would have been different.

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

denied, 596 Pa. 707, 940 A.2d 365 (2007).

        “Actual or constructive denial of the assistance of counsel, however,

falls within a narrow category of circumstances in which prejudice is legally

presumed.” Commonwealth v. Lane, 81 A.3d 974, 978 (Pa.Super. 2013),

appeal denied, 625 Pa. 658, 92 A.3d 811 (2014). Our Supreme Court has

held:

          [W]here 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, 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, and constitutes prejudice for purposes
          of    Section    9543(a)(2)(ii).     Therefore,    in   such
          circumstances, and where the remaining requirements of
          the PCRA are satisfied, the petitioner is not required to
          establish his innocence or demonstrate the merits of the
          issue or issues which would have been raised on appeal.

Commonwealth v. Lantzy, 558 Pa. 214, 226-27, 736 A.2d 564, 572

(1999) (internal footnote omitted). In other words, where counsel neglects

to file a requested direct appeal, “counsel is per se ineffective as the



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defendant    was   left   with   the   functional   equivalent   of   no   counsel.”

Commonwealth v. Markowitz, 32 A.3d 706, 715 (Pa.Super. 2011), appeal

denied, 615 Pa. 764, 40 A.3d 1235 (2012).

      Even where a defendant does not expressly ask counsel to file a direct

appeal, counsel still has a duty “to adequately consult with the defendant as

to the advantages and disadvantages of an appeal where there is reason

to think that a defendant would want to appeal.” Commonwealth v.

Bath, 907 A.2d 619, 623 (Pa.Super. 2006) (emphasis added).                   In this

situation, where the defendant did not request counsel to file a direct appeal

but counsel failed to consult with the defendant, counsel is not per se

ineffective and the traditional three-prong test “is necessary to decide

whether counsel rendered constitutionally ineffective assistance by failing to

advise his client about his appellate rights.” Markowitz, supra at 716.

          Pursuant to [Roe v. Flores-Ortega, 528 U.S. 470, 120
          S.Ct. 1029, 145 L.Ed.2d 985 (2000) and its Pennsylvania
          expression, Commonwealth v. Touw, 781 A.2d 1250
          (Pa.Super. 2001)], counsel has a constitutional duty to
          consult with a defendant about an appeal where counsel
          has reason to believe either “(1) that a rational defendant
          would want to appeal (for example, because there are
          non-frivolous grounds for appeal), or (2) that this
          particular defendant reasonably demonstrated to
          counsel that he was interested in appealing.” [Id.] at
          1254 (quoting Roe[, supra] at 480, 120 S.Ct. [at 1036]).

Bath, supra at 623 (emphasis added). “Where a petitioner can prove either

factor, he establishes that his claim has arguable merit.” Markowitz, supra

at 716.


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      Additionally, the defendant is not required to show he had meritorious

issues for appeal to establish counsel was ineffective for failing to consult

with the defendant regarding an appeal. Commonwealth v. Donaghy, 33

A.3d 12 (Pa.Super. 2011), appeal denied, 615 Pa. 753, 40 A.3d 120 (2012).

See also Green, supra at *4 n.5 (stating: “[A] claim that lacks merit is not

necessarily wholly frivolous.   The duty to consult arises if there is a non-

frivolous issue to raise, not an ultimately meritorious issue”).       Further,

prejudice in this context means a defendant must show a reasonable

probability that, but for counsel’s failure to consult, the defendant would

have sought additional review. Touw, supra at 1254. See also Donaghy,

supra (reversing order denying PCRA relief and remanding for reinstatement

of appellant’s direct appeal rights nunc pro tunc, where trial counsel failed to

consult with appellant about whether he wanted to file direct appeal;

appellant sent trial counsel letter during 30-day appeal period asking how

long appellant had to file appeal and what types of issues appellant could

raise on appeal; appellant’s letter sufficiently demonstrated desire to appeal

such that counsel should have made reasonable effort to discover appellant’s

wishes; counsel’s testimony at PCRA hearing that counsel believed appellant

had no viable reasons for appeal does not absolve counsel of his duty to

ascertain appellant’s wishes; counsel’s failure to consult with appellant about

filing direct appeal deprived appellant of his constitutional right to effective

assistance of counsel).


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      Instantly, the PCRA court denied relief, concluding: “To prevail in the

instant case, [Appellant] must show that he either requested [trial counsel]

file a direct appeal or that issues of merit made it incumbent upon [trial

counsel] to file a direct appeal. [Appellant] has failed to demonstrate either

circumstance.” (See Opinion in Support of Order, filed March 13, 2017, at

21) (internal citation omitted). Initially, the PCRA court rejected Appellant’s

testimony that he asked counsel to file a direct appeal immediately after

sentencing. (See id. at 17). We are bound by the PCRA court’s credibility

determination in this regard. See Dennis, supra. Therefore, we agree with

the PCRA court that trial counsel was not per se ineffective. See Lantzy,

supra; Markowitz, supra.

      We disagree, however, with the PCRA court’s legal conclusion that trial

counsel had no duty to consult with Appellant about whether he wanted to

appeal based on counsel’s unilateral belief that Appellant had no meritorious

issues to appeal. See Green, supra; Ford, supra. The record makes clear

Appellant filed a pro se document on December 9, 2014, detailing his intent

to appeal and the issue he wished to pursue on appeal, within the 30-day

appeal period. The clerk of courts forwarded this document to trial counsel,

and counsel conceded at the PCRA hearing that he reviewed it.        Appellant

reasonably demonstrated his intent to appeal, and trial counsel had clear

notice Appellant wanted to file an appeal.      Thus, Appellant’s claim that

counsel was ineffective for failing to consult with him about an appeal has


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arguable merit. See Roe, supra; Markowitz, supra; Bath, supra; Touw,

supra.

       Trial counsel testified he did not file an appeal on Appellant’s behalf

because (1) counsel thought Appellant’s challenge to the court’s denial of his

motion for a mistrial would not succeed on appeal; and (2) the court’s

December 18, 2014 order directed Appellant to contact counsel if Appellant

wanted to appeal.         Nevertheless, counsel’s belief that Appellant had no

meritorious issues for appeal did not absolve counsel of his duty to consult

with Appellant about filing an appeal. See Donaghy, supra. Additionally,

counsel’s failure to contact Appellant in the face of his clear intent to appeal

was not “reasonable” under these circumstances, despite the trial court’s

misdirective.4 See id.; Turetsky, supra.

       Further, the record demonstrates Appellant wanted to file a direct

appeal. But for counsel’s deficient failure to consult with Appellant, he would

have    filed   an   appeal,    which    satisfies   the   prejudice   prong   of   the

ineffectiveness test.       See Touw, supra.          Therefore, trial counsel was

ineffective for failing to consult with Appellant about filing a direct appeal;

and Appellant is entitled to reinstatement of his direct appeal rights nunc pro


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4 By directing Appellant to contact trial counsel if he wished to appeal, the
PCRA court essentially gave trial counsel an excuse to do nothing despite his
duty to consult with Appellant and improperly placed the onus on Appellant
to secure the effective assistance of counsel.



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tunc.5 Accordingly, we reverse and remand for further proceedings.6

       Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.




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5 We decline to reinstate Appellant’s right to file post-sentence motions nunc
pro tunc as Appellant has not requested that relief on appeal or at any time
before the PCRA court. See Commonwealth v. Liston, 602 Pa. 10, 977
A.2d 1089 (2009) (explaining where court reinstates direct appeal rights
nunc pro tunc, appellant is not automatically entitled to reinstatement of his
post-sentence rights nunc pro tunc as well; reinstatement of post-sentence
rights nunc pro tunc is proper only where defendant successfully pleads and
proves he was deprived of right to file and litigate post-sentence motions as
result of ineffective assistance of counsel). For the first time in his post-
hearing brief, and now on appeal, Appellant claimed he wanted to attack the
weight of the evidence in a direct appeal nunc pro tunc. Appellant’s oblique
reference to a weight-of-the-evidence challenge, which requires the filing of
post-sentence motions for issue preservation purposes, does not satisfy
Appellant’s obligation to plead and prove trial counsel was ineffective for
failing to file and litigate post-sentence motions. See id.

6 Due to our disposition, we decline to address separately Appellant’s second
issue on appeal.       We repeat, however, that to establish counsel’s
ineffectiveness for failure to consult with Appellant, he did not have to
demonstrate meritorious issues for an appeal.        So counsel’s unilateral
evaluation of Appellant’s proposed issues would not qualify as a rational
basis for counsel’s failure to consult with Appellant about filing an appeal.
See Donaghy, supra.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




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