J-S82005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHARLES DAMAR PRATT,

                            Appellant                 No. 1648 WDA 2016


              Appeal from the Order Entered September 28, 2016
               In the Court of Common Pleas of Beaver County
                          Criminal Division at No(s):
                           CP-04-CR-0000853-2014
                           CP-04-CR-0000854-2014


BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**

MEMORANDUM BY BENDER, P.J.E.:                         FILED MARCH 05, 2018

        Appellant, Charles Damar Pratt, appeals from the post-conviction

court’s September 28, 2016 order denying his first petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.            After careful

review, we affirm.

        The PCRA court summarized the pertinent facts and procedural history

of this case, as follows:

              On July 7, 2015 [Appellant] entered guilty pleas to certain
        … charges [in three separate] cases. It should be noted that the
        pleas were entered by [Appellant] the day after he and his
        counsel had participated in selection of a jury to hear and decide
        these cases.
____________________________________________


*   Former Justice specially assigned to the Superior Court.
**   Retired Senior Judge assigned to the Superior Court.
J-S82005-17


            In the case [docketed] at No. 854 of 2014, [Appellant]
     pled guilty to Aggravated Assault, as set forth at Count 2 of the
     Information, graded as a Felony of the First Degree, and Persons
     not to Possess a Firearm, as set forth at Count 4 of the
     Information, graded as a Felony of the Second Degree. [In the]
     [c]ase [docketed at] No. 2129 of 2014, [Appellant] pled guilty to
     Delivery of Heroin, as set forth at Count 1 of the Information, an
     ungraded Felony, Possession With Intent to Deliver Heroin, as
     set forth at Count 3 of the Information, and Persons Not to
     Possess a Firearm, as set forth at Count 4 of the Information,
     again, graded as a Felony of the Second Degree. Finally, [in
     the] [c]ase [docketed at] No. 853 of 2014, [Appellant] pled
     guilty to Theft By Unlawful Taking, as set forth at Count 1 of the
     Information, graded as a Misdemeanor of the First Degree.

            In return for his guilty pleas, and in strict compliance with
     the terms of his Plea Agreements, as repeatedly stated on the
     record, this [c]ourt sentenced [Appellant] on all three cases to
     an aggregated sentence of not less than ten (10) years nor more
     than twenty (20) years of incarceration in a State Correctional
     Facility, followed by a term of five (5) years of probation under
     the supervision of the Pennsylvania Board of Probation and
     Parole. (The individual sentences are contained in the records.)

            On October 30, 2015, [Appellant] filed a pro se PCRA
     Petition in the case [docketed] at No. 854 of 2014.              At
     [Appellant]'s request, counsel was appointed for him. On April
     8, 2016, [Appellant] filed another pro se PCRA Petition [in the]
     [c]ase [docketed at] No. 853 of 2014. The same counsel was
     again appointed for him.       Court-appointed counsel filed an
     Amended PCRA Petition on April 8, 2016 [in the] [c]ase
     [docketed at] No. 854 of 2014. [Therein, Appellant alleged that
     his plea counsel had acted ineffectively by, inter alia, failing to
     file a direct appeal on his behalf.] The Commonwealth was
     directed to file a response, and a hearing was scheduled.

           Following continuances, the PCRA Petitions were called for
     hearing on September 21, 2016.

           At the PCRA hearing, the first witness called to the stand
     by [Appellant] … was Attorney Timothy Carland, who
     represented [Appellant] before trial, at jury selection and in the
     entry of the pleas and subsequent sentencings. Both defense
     counsel and the [c]ourt reviewed appeal rights with [Appellant]
     during the plea and sentence hearings. According to Attorney


                                    -2-
J-S82005-17


      Carland, [Appellant] did not request that he file a direct appeal,
      after having been explained his rights in that regard, at either
      the time of the sentences or at any time subsequent thereto.
      Attorney Carland testified that the [c]ourt did sentence
      [Appellant] in accordance with the Plea Agreement, and
      [Appellant] never requested that a direct appeal be filed on his
      behalf. [Attorney] Carland never saw nor heard from [Appellant]
      following sentencing, and he did not receive any correspondence
      from [Appellant] requesting that an appeal be pursued.
      [Attorney] Carland testified that his first memory of contact from
      [Appellant] was when he received [Appellant’s] Pro Se PCRA
      Petition [in the] [c]ase [docketed at] No. 854 of 2014.

             [Appellant] was the only other witness to testify at the
      PCRA hearing, and his testimony primarily concerned his
      dissatisfaction with [Attorney] Carland prior to trial in not visiting
      him at the jail, continuing the trial of his cases on more than one
      occasion and [counsel’s] refusal to pursue a Rule 600 Motion on
      [Appellant’s] behalf. He did admit that he stated on the record at
      the time of his pleas and sentences that he was satisfied with
      [Attorney] Carland’s representation. [Appellant] did go on to
      testify that, at the sentencing hearing, Attorney Carland told him
      “to file a PCRA and I'll work on a direct appeal[.”] [Appellant]
      admitted that he did not request the [c]ourt or Attorney Carland
      to pursue a direct appeal thereafter.

PCRA Court Opinion (PCO), 9/28/16, at 1-3 (unnumbered).

      Following the PCRA hearing, the court issued an order and opinion

denying Appellant’s PCRA petition. Appellant filed a timely notice of appeal,

as well as a timely Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal. On January 13, 2017, the PCRA court issued a Rule 1925(a)

opinion, stating that it was relying on the rationale set forth in its opinion

issued on September 28, 2016.       Herein, Appellant presents two issues for

our review:

      I.      The PCRA [c]ourt erred in refusing to reinstate
              [Appellant’s] direct appeal rights, where [Appellant] told



                                      -3-
J-S82005-17


            his trial attorney that he wanted to withdraw his plea and
            appeal after resentencing.

      II.   The PCRA [c]ourt erred in denying [Appellant’s] petition for
            relief, where trial counsel was ineffective in failing to
            prepare for trial which forced [Appellant] to conclude he
            had no alternative than to enter an involuntary guilty plea.

Appellant’s Brief at 5.

      First, “[t]his Court’s standard of review from the grant or denial of

post-conviction relief is limited to examining whether the lower court’s

determination is supported by the evidence of record and whether it is free

of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).

Where, as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has directed that the following standards apply:

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from the “[i]neffective assistance of counsel
      which, in the circumstances of the particular case, so
      undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.” 42
      Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
      rebut that presumption, the PCRA petitioner must demonstrate
      that counsel's performance was deficient and that such
      deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
      Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
      Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
      Pennsylvania, we have refined the Strickland performance and
      prejudice test into a three-part inquiry. See [Commonwealth
      v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
      prove counsel ineffective, the petitioner must show that: (1) his
      underlying claim is of arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) the petitioner
      suffered actual prejudice as a result. Commonwealth v. Ali,
      608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
      prove any of these prongs, his claim fails.” Commonwealth v.

                                     -4-
J-S82005-17


      Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
      omitted).      Generally,   counsel's   assistance  is   deemed
      constitutionally effective if he chose a particular course of
      conduct that had some reasonable basis designed to effectuate
      his client's interests. See Ali, supra. Where matters of strategy
      and tactics are concerned, “[a] finding that a chosen strategy
      lacked a reasonable basis is not warranted unless it can be
      concluded that an alternative not chosen offered a potential for
      success substantially greater than the course actually pursued.”
      Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
      quotation marks omitted). To demonstrate prejudice, the
      petitioner must show that “there is a reasonable probability that,
      but for counsel's unprofessional errors, the result of the
      proceedings would have been different.” Commonwealth v.
      King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
      quotation marks, and citation omitted). “‘[A] reasonable
      probability is a probability that is sufficient to undermine
      confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
      86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
      598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
      U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

      In Appellant’s first issue, he maintains that he directed Attorney

Carland to file a direct appeal on his behalf, and counsel was ineffective for

failing to do so. Appellant claims that his testimony “that he wanted a direct

appeal is buttressed by the fact that his pro se PCRA Petition was filed so

soon after the imposition of [his] sentence.”       Appellant’s Brief at 14.

According to Appellant, the timing of his petition demonstrates that he

“immediately took steps to have his appellate rights reinstated” as soon as

“he realized [that] plea counsel did not file a notice of appeal within the

thirty (30) day time-period.” Id. at 14-15.

      In rejecting Appellant’s arguments, the PCRA court reasoned:




                                    -5-
J-S82005-17


       [T]his [c]ourt has received credible testimony from Attorney
       Carland that he did consult with [Appellant] both on and off the
       record concerning his appellate rights and that [Appellant] never
       requested, in person, in writing or by any other form of
       communication, that Attorney Carland file a direct appeal on his
       behalf. In point of fact, [Appellant] himself agreed that he did
       not ask Attorney Carland to file a Notice of Appeal from his
       sentences. [Appellant] instead testified that Attorney Carland
       told him “to file a PCRA and [counsel would] work on a direct
       appeal[,”] two courses of action that are incongruous with one
       another. [Appellant’s] testimony in that regard was not credible
       and cannot be considered as truthful on those two proposed
       courses of action.

                                      ***

              [Appellant] next argues that by filing his Pro Se PCRA
       Petition almost four (4) months following his sentencing, [he]
       has somehow established that [he] did, in fact, direct Attorney
       Carland to file a Notice of Appeal. That, quite simply, is not the
       case, after counsel also acknowledged that “the record reflects
       that [Appellant] was advised of his post-sentence and direct
       appeal rights[.”] There is absolutely no evidence in the record
       that [Appellant] ever directed Attorney Carland to file a direct
       appeal [of] his convictions and sentences [in the] [c]ase
       [docketed at] No. 854 of 2014 and [in the] [c]ase [docketed at]
       No. 853 of 2014.

PCO at 3-4 (emphasis in original).

       We ascertain no error or abuse of discretion in the PCRA court’s

decision. We have declared that, “[a]lthough counsel may be ineffective for

failing to file a direct appeal on his client’s behalf, a PCRA petitioner must

prove that he asked counsel to file an appeal in order to be entitled to

relief.”   Commonwealth v. Maynard, 900 A.2d 395, 397-98 (Pa. Super.

2006). More specifically, “[t]he petitioner has the burden of proving that he

requested a direct appeal and that his counsel heard but ignored or rejected

the request.” Id.


                                     -6-
J-S82005-17



       Here, Appellant testified that Attorney Carland told him, while they

were still in the courtroom after sentencing, that counsel would file a direct

appeal and Appellant should “file a PCRA.” N.T. PCRA Hearing, 9/21/16, at

31-34.1     However, Attorney Carland testified that Appellant did not say

anything to him about filing an appeal at the sentencing hearing, nor at any

point thereafter.      Id. at 31, 32-33.         The PCRA court credited Attorney

Carland’s testimony and, because that decision is supported by the record, it

is binding on this Court. See Maynard, supra. Accordingly, we discern no

abuse of discretion in the PCRA court’s conclusion that Appellant failed to

prove that Attorney Carland acted ineffectively by not filing a direct appeal

on his behalf.

       In Appellant’s second ineffectiveness claim, he contends that Attorney

Carland acted ineffectively by not filing a motion to dismiss pursuant to

Pa.R.Crim.P. 600, seeking several continuances of Appellant’s case, and “not

meet[ing] with [Appellant] enough times to prepare a meaningful defense

for trial.” Appellant’s Brief at 17. Aside from reiterating the general legal

standard for demonstrating ineffectiveness, the entirety of Appellant’s

discussion of these three distinct claims of counsel’s ineffectiveness consists

of the following:


____________________________________________


1 We note that the transcript of the PCRA hearing incorrectly states that the
proceeding was conducted on September 21, 2013, rather than September
21, 2016.



                                           -7-
J-S82005-17


            The PCRA [c]ourt accurately stated that [Appellant] was
      dissatisfied that [Attorney] Carland continued the case several
      times, that [Attorney] Carland would not pursue the Rule 600
      Motion [Appellant] wished to have presented to the court, and
      that [Attorney] Carland did not meet with [Appellant] enough
      times to prepare a meaningful defense for trial.        In fact,
      [Appellant] had two other attorneys with the Public Defender’s
      Officer prior to Attorney Carland[’s] coming into the case.
      [Appellant] did not have a level of confidence that his attorney
      was providing reasonable representation in a matter of grave
      importance to him.

             Attorney Carland was aware that [Appellant] was not
      satisfied with the representation, given that [Attorney] Carland
      did not pursue the Rule 600 claim, and given that entering the
      plea was the result of [Appellant’s] feeling as though he had no
      other option.     Entering the plea was [Appellant’s] way of
      mitigating the bad situation that faced him due to having an
      attorney that he believed was not prepared.

             Where [Appellant] has established that he would have
      proceeded to trial had he enjoyed a level of confidence in his
      attorney, the outcome of the case would have been much
      different, but for counsel’s ineffective assistance.

Id. at 17-18.

      Appellant’s vague argument is insufficient to prove that Attorney

Carland acted ineffectively.   First, regarding Appellant’s Rule 600 claim,

Attorney Carland testified at the PCRA hearing that he did not file a Rule 600

motion to dismiss because he believed it would be “frivolous.”     N.T. PCRA

Hearing at 28. Appellant offers no discussion to rebut counsel’s conclusion;

thus, he has not demonstrated that this ineffectiveness claim has arguable

merit.

      Second, pertaining to the continuance requests filed by Attorney

Carland, the record shows that counsel was appointed to represent Appellant



                                    -8-
J-S82005-17



on December 23, 2014, and he requested only two continuances between

that date and Appellant’s guilty plea proceeding on July 7, 2015. Attorney

Carland explained at the PCRA hearing that he requested these continuances

to prepare for trial by obtaining and reviewing transcripts, discovery, and

forensic reports. N.T. PCRA Hearing at 27-28. Appellant does not discuss

why it was unreasonable for counsel to request these continuances in order

to better prepare his defense.

      Third, concerning Attorney Carland’s pretrial meetings with Appellant,

counsel acknowledged at the PCRA hearing that he only met with Appellant

“once or twice.” Id. at 19. However, he also testified that he was prepared

to go to trial.   Id. at 22.   Counsel then discussed why Appellant chose to

plead guilty, explaining that, after completing the first day of jury selection,

he had advised Appellant that he believed Appellant’s case was not “that

strong in terms of what he was facing and the potential for additional …

prison time over and above … the [plea] offer [the Commonwealth] was

providing him.” Id. at 21. Appellant informed counsel he would think about

the plea offer “overnight.”      Id. at 22.   When they arrived at court the

following morning, Appellant saw one of the victims with the District

Attorney, and he then informed Attorney Carland that he wanted to accept

the plea offer. Id.

      On appeal, Appellant offers no challenge to Attorney Carland’s

testimony, nor any discussion of what more counsel should have done to

better prepare for trial, or why counsel’s advice to accept the plea offer was

                                      -9-
J-S82005-17



unreasonable. Thus, Appellant has not demonstrated that Attorney Carland

acted ineffectively.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/2018




                                 - 10 -
