J-S20045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JUSTIN RAY MILLER

                            Appellant                No. 2056 WDA 2014


              Appeal from the PCRA Order of November 24, 2014
               In the Court of Common Pleas of Fayette County
              Criminal Division at No.: CP-56-CR-0000928-2011


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

MEMORANDUM BY WECHT, J.:                                FILED MAY 05, 2015

       Justin Ray Miller appeals the November 24, 2014 order denying his

petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-46. We affirm.

       In a previous memorandum, we set forth the factual and procedural

history of this case as follows:

       On November 8, 2012, a jury found [Miller] guilty of burglary,
       criminal trespass, and theft by unlawful taking.[1] On November
       20, 2012, [Miller] filed a pro se motion to dismiss counsel for
       ineffectiveness. On December 6, 2012, the court sentenced
       [Miller] to a term of not less than eighteen nor more than thirty-
       six months’ imprisonment.          The Public Defender’s Office
       represented [Miller] at trial and sentencing.2
          2
             The record indicates that Attorney Jeffery W. Whiteko
          represented [Miller] through the trial and Attorney
____________________________________________


1
       18 Pa.C.S. §§ 3502(a), 3503(a)(1)(ii), and 3921(a), respectively.
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          Benjamin F. Goodwin represented him at the sentencing
          hearing.

       [Miller], although still represented by the Public Defender’s
       Office, filed an otherwise timely pro se direct appeal on
       December 14, 2012 in violation of the prohibition of hybrid
       representation. See Commonwealth v. Jette, 23 A.3d 1032,
       1035-44 (Pa. 2011); Commonwealth v. Ellis, 626 A.2d 1137,
       1039-41 (Pa. 1993).        On February 25, 2013, this Court
       dismissed [Miller’s] appeal for failing to file a docketing
       statement pursuant to Pa.R.A.P. 3517.[3]     [Miller] did not
       petition the Pennsylvania Supreme Court for allowance of
       appeal.

       On November 14, 2013, [Miller] timely filed a pro se PCRA
       petition.    [Therein, Miller claimed ineffective assistance of
       counsel due to counsel’s failure to file a direct appeal and
       sentencing errors.] The PCRA court appointed Attorney James
       V. Natale to represent [Miller], and counsel filed an amended
       PCRA petition on January 3, 2014. The court scheduled a
       hearing for March 18, 2014. (PCRA Court Order, 1/09/14).
       However, the PCRA court then ordered that “at the time set for
       hearing, the Superior Court having denied [Miller’s] [a]ppeal on
       February 25, 2013, the request of [Miller] to appeal the case
       nunc pro tunc is DENIED.” (PCRA Court Order, Dated 3/18/14
       and Filed 3/21/14). There is no indication in the record that the
       March 18, 2014 hearing occurred. On April 16, 2014, [Miller]
       again filed a prohibited pro se but otherwise timely appeal. See
       Jette, supra at 1035-44; Ellis, supra at 1039-41.
____________________________________________


3
       Pa.R.A.P. § 3517 provides as follows:

       Whenever a notice of appeal to the Superior Court is filed, the
       Prothonotary shall send a docketing statement form which shall
       be completed and returned within ten (10) days in order that the
       Court shall be able to more efficiently and expeditiously
       administer the scheduling of argument and submission of cases
       on appeal. Failure to file a docketing statement may result in
       dismissal of the appeal.

Pa.R.A.P. § 3517




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      Nevertheless, since counsel filed a statement of errors and a
      brief, [this Court reviewed] counsel’s statement of errors and
      brief.   Pursuant to the PCRA court’s order, [Miller] filed a
      counseled [Pa.R.A.P.] 1925(b) statement on May 6, 2014. The
      court entered its [Pa.R.A.P.] 1925(a) statement in lieu of an
      opinion dated May 23, 2014 and filed on May 27, 2014.

Commonwealth v. Miller, 615 WDA 2014, slip op. at 1-3 (Pa. Super. Sept.

29, 2014) (emphasis in original) (some footnotes omitted).

      On September 29, 2014, this Court vacated the order denying Miller’s

PCRA petition without hearing, and remanded for a hearing. Id. at 7. On

November 24, 2014, the PCRA court held a hearing on Miller’s PCRA petition.

Assistant Public Defender Benjamin Goodwin (“Goodwin”), Miller’s counsel at

sentencing, testified.   Following Miller’s sentencing on December 6, 2012,

Goodwin asked Miller if he wanted to appeal his sentence, and Miller declined

and executed a rejection of appeal form.        Notes of Testimony (“N.T.”),

11/24/2014, at 3-5. Miller admitted to signing the rejection of appeal form.

Id. at 17. Goodwin also testified that neither he nor the Public Defender’s

Office had any subsequent conversations or correspondence with Miller after

that date. Id. at 6. Miller then testified that he mailed a letter to Goodwin’s

office on December 7, 2012, requesting that an appeal be filed in his case.

Id. at 14-17. A copy of the letter was admitted into evidence. Id. at 16.

Goodwin denied ever receiving the letter, id. at 11, and Miller failed to offer

any evidence to prove that Goodwin had received Miller’s letter requesting

an appeal. The PCRA court ultimately denied Miller’s PCRA petition, finding

that “Attorney Goodwin was a credible witness,” and that Miller had signed


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“a [r]ejection of [a]ppeal, that [Miller] himself filed an appeal pro se on

December 14, 2012, that appeal having been denied by [this Court] for

violations of Pennsylvania Rules of Appellate Procedure 3517 on February

25, 2013.” Id. at 25.

      On December 11, 2014, Miller timely filed a notice of appeal and a

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

1925(b). On January 26, 2015, the PCRA court filed a statement in lieu of

an opinion pursuant to Pa.R.A.P. 1925(a).

      Miller raises one issue for our review:

      Whether [Miller’s] legal counsel, Benjamin F. Goodwin, Esq. in
      his capacity as a public defender, was ineffective for failing to file
      an appeal of [Miller’s] judgment of sentence when [Miller] at his
      PCRA hearing admitted into evidence a letter dated December 7,
      2012 instructing Attorney Goodwin to file an appeal in his
      case[?]

Brief for Miller at 3.

      The “standard of review for an order denying post-conviction relief is

limited   to   whether   the   record   supports     the   post-conviction     court’s

determination,     and   whether   that   decision    is   free   of   legal   error.”

Commonwealth v. Allen, 732 A.2d 582, 586 (Pa. 1999). The PCRA court’s

findings “will not be disturbed unless there is no support for the findings in

the certified record.” Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.

Super. 2008).      “Where . . . there is record support for a PCRA court’s

credibility determinations, we, as a reviewing court, are bound by those




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determinations.”   Commonwealth v. Abu-Jamal, 720 A.2d 79, 93 (Pa.

1998) (citation omitted).

      Herein, Miller alleges, as he did in his timely PCRA petition, that

counsel was ineffective due to the failure to file an appeal of Miller’s

judgment of sentence. Brief for Miller at 7. We disagree.

      Counsel is presumed effective, and an appellant bears the burden to

prove otherwise.   See Commonwealth v. Bennett, 57 A.3d 1185, 1195

(Pa. 2012). An appellant must demonstrate that: (1) his underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his

action or inaction; and (3) the appellant suffered actual prejudice as a

result.   See Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).

Where, as in the instant case, the claim is counsel’s failure to file a direct

appeal, Pennsylvania utilizes a per se ineffectiveness test, Commonwealth

v. Lantzy, 736 A.2d 564, 571 (Pa. 1999) (“a failure to file or perfect [a

direct] appeal results in a denial so fundamental as to constitute prejudice

per se”), so long as an appellant establishes that he “requested [counsel to

file] an appeal and that counsel disregarded the request.” Commonwealth

v. Hudson, 485 A.2d 487, 489 (Pa. Super. 1984).

      In addition, the PCRA court must hold a hearing to determine “whether

[an] [a]ppellant requested that counsel so appeal. If it is determined that

this request was made and counsel failed to comply, [an] [a]ppellant’s rights

must be reinstated.” Commonwealth v. Daniels, 737 A.2d 303, 305 (Pa.

Super. 1999). However, a “[m]ere allegation will not suffice; the burden is

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on [an] [a]ppellant to plead and prove that his request for an appeal was

ignored or rejected by trial counsel.”    Commonwealth v. Harmon, 738

A.2d 1023, 1024 (Pa. Super. 1998) (citations omitted).       Furthermore, an

appellant “must present the facts supporting each issue asserted . . . and if

they do not appear on the record . . . must identify affidavits, documents, or

other evidence proving the alleged facts.” Commonwealth v. Collins, 687

A.2d 1112, 1115 (Pa. 1996) (citation omitted).

      In his brief, Miller concedes that, following his sentencing on December

6, 2012, he “signed a form stating that he did not wish to appeal his

conviction and judgment of sentence.” Brief for Miller at 10. Despite signing

the rejection of appeal form, Miller nonetheless claims that he sent a letter

to Goodwin the following day, requesting that Goodwin file an appeal on his

behalf. N.T. at 16. Goodwin maintains that he never received the letter at

the Public Defender’s Office or at his home office, and never received any

other correspondence indicating that Miller wanted Goodwin to appeal his

judgment of sentence. Id. at 11. In addition, Miller admits that he did not

know the address where he sent the letter, that he did not send the letter to

the Public Defender’s Office, and that he did not receive any certification or

correspondence indicating that Goodwin received the letter. Id. at 15-17.

      Based upon the testimony presented at the PCRA hearing, the PCRA

court determined that Goodwin was a credible witness, and therefore found

Miller’s claim that he sent a letter to Goodwin requesting an appeal to be

unconvincing. Consequently, the PCRA court denied Miller’s PCRA petition.

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      Credibility determinations made by the PCRA court are binding upon

this Court so long as there is support for the conclusions in the record.

Abu-Jamal, 720 A.2d at 93. There is ample support in the record for the

PCRA court’s credibility determinations because Miller failed to produce any

evidence to establish that he sent the letter to Goodwin requesting appeal,

or that Goodwin ever received the letter. Therefore, the record supports the

PCRA court’s finding that Goodwin was credible, and that Miller did not

request an appeal. Because his underlying claim lacks merit, Miller’s claim

of ineffective assistance of counsel is meritless.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2015




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