J-S64026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

PAMELA SMALLIS,

                        Appellant                   No. 562 WDA 2014


           Appeal from the PCRA Order Entered March 10, 2013
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0015152-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED OCTOBER 22, 2014

      Appellant, Pamela Smallis, appeals from the trial court’s March 10,

2014 order dismissing her petition for relief under the Post Conviction Relief

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

      On August 7, 2013, Appellant entered a negotiated guilty plea to the

crimes of possessing child pornography, production of child pornography,

endangering the welfare of children, and corruption of minors.             In

accordance with her plea agreement, Appellant was sentenced to an

aggregate term of 2 to 4 years’ incarceration, followed by three years’

probation. Her sentence was imposed to run consecutively to a 2 to 4 year

term of imprisonment imposed in an unrelated case. Appellant did not file

post-sentence motions or a direct appeal.     Her plea counsel subsequently
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filed a petition to withdraw, which was granted. The court then appointed

the Allegheny County Public Defender’s Officer to represent Appellant.

       On December 13, 2013, Appellant’s newly-appointed counsel filed a

timely PCRA petition on her behalf, arguing that Appellant’s “plea counsel

was ineffective for failing to adequately advise [Appellant] about her post-

sentence rights,” and for not “filing a post-sentence motion or a direct

appeal on her behalf, or withdrawing in a timely manner so post-sentence

counsel could be appointed in order to preserve these rights.”               PCRA

Petition, 12/13/13, at 6 (unnecessary capitalization omitted). 1 On February

12, 2014, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss Appellant’s petition. Appellant did not respond to that notice, and on

March 10, 2014, the court issued an order dismissing her petition.

       Appellant filed a timely notice of appeal, as well a timely Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Herein, she

presents one issue for our review:

       I. Did the PCRA court abuse its discretion by dismissing the PCRA
       petition without an evidentiary hearing since the petition
       presented factual issues that could not be resolved without a
       hearing, such as the claims that plea counsel was ineffective for
       failing to adequately advise [] Appellant about her post-sentence
       and appellate rights, for failing to file a post-sentence motion or
       direct appeal, and for failing to withdraw from her case in a

____________________________________________


1
  Appellant raised a second issue involving plea counsel’s ineffectiveness in
her PCRA petition, which we need not address because she has abandoned
that claim on appeal.



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      timely manner so counsel could be appointed to preserve these
      rights?

Appellant’s Brief at 12 (unnecessary capitalization omitted).

      Initially, we note that “[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)).

      Moreover, “[t]here is no absolute right to an evidentiary hearing
      on a PCRA petition, and if the PCRA court can determine from
      the record that no genuine issues of material fact exist, then a
      hearing is not necessary.” Commonwealth v. Jones, 942 A.2d
      903, 906 (Pa. Super. 2008), appeal denied, 956 A.2d 433 (Pa.
      2008) (citing Commonwealth v. Barbosa, 819 A.2d 81 (Pa.
      Super. 2003)); Pa.R.Crim.P. 907(2). A reviewing court must
      examine the issues raised in the PCRA petition in light of the
      record in order to determine whether the PCRA court erred in
      concluding that there were no genuine issues of material fact
      and in denying relief without an evidentiary hearing.
      Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super.
      2001) (citation omitted).

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).

      Additionally, where, as here, a petitioner claims that he received

ineffective assistance of counsel, our Supreme Court has stated that:

      [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.”
      Generally, counsel’s performance is presumed to be
      constitutionally adequate, and counsel will only be deemed

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      ineffective upon a sufficient showing by the petitioner. To obtain
      relief, a petitioner must demonstrate that counsel’s performance
      was deficient and that the deficiency prejudiced the petitioner. A
      petitioner establishes prejudice when he demonstrates “that
      there is a reasonable probability that, but for counsel’s
      unprofessional errors, the result of the proceeding would have
      been different.” … [A] properly pled claim of ineffectiveness
      posits that: (1) the underlying legal issue has arguable merit;
      (2) counsel’s actions lacked an objective reasonable basis; and
      (3) actual prejudice befell the petitioner from counsel’s act or
      omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

      In this case, while Appellant states only one issue for our review, she

argues several distinct claims that we will address in turn. First, Appellant

contends that her plea counsel was ineffective for not “adequately

advis[ing]” her about her post-sentence rights. Appellant’s brief at 18. It is

not clear whether Appellant is contending that plea counsel did not inform

her of her post-sentence rights at all, or that counsel discussed those rights

in an incorrect or misleading manner. Because Appellant did not state in her

petition – and does not discuss on appeal – anything specific that counsel

told her about her post-sentence rights, we assume Appellant is claiming

that counsel did not discuss those rights with her at all. The PCRA court also

interpreted Appellant’s claim in this manner, and rejected it for the following

reasons:

      The record clearly reflects that [Appellant] was advised of her
      post-sentence rights and that she understood those rights. She
      was informed of these rights when she entered her guilty plea.
      In addition to an 11 page Guilty Plea Explanation of Rights
      colloquy which Appellant completed (indicating, inter alia, that


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      [she] understood [her] post-sentence and appellate rights and
      was satisfied with the performance of counsel),2 this Court
      conducted a verbal colloquy with Appellant to ensure that
      Appellant fully understood her post-sentence and appellate
      rights. Appellant was made aware in the written colloquy that
      she had ten days after the date of the sentencing to file a post-
      sentence motion with the [c]ourt and in what instances she had
      the right to file this motion. (Guilty Plea Explanation of
      Defendant’s Rights at 7). She was also made aware that if a
      post-sentence motion [were] denied by this [c]ourt, she would
      receive a court order advising her of her appellate rights. Id. at
      8. Appellant was further asked if anyone forced her into the plea
      agreement and if she was satisfied with her attorney. Id. at 9-
      10. Appellant’s initials next to each question along with her
      signature at the conclusion of the colloquy demonstrate that
      Appellant was both aware [of] and understood her post-sentence
      and appellate rights.

      ___________________
      2
        This [c]ourt reviewed the written colloquy with Appellant to
      insure that she had read it, had discussed it with counsel and
      understood it[,] then incorporated it into the record. (TT 6-7).

PCRA Court Opinion (PCO), 1/17/14, at 3-4.

      The record supports the PCRA court’s determination that Appellant was

sufficiently advised of her post-sentence rights in the Guilty Plea Explanation

of Defendant’s Rights form, and orally by the court at the plea/sentencing

hearing. Appellant does not challenge the validity of these colloquies or the

accuracy of the information provided to her by the court. Therefore, even

accepting as true Appellant’s claim that plea counsel did not also advise her

of these rights, it is obvious from the existing record that she was not

prejudiced by that omission.   As such, we agree with the PCRA court that

there was no need to examine this issue further at a PCRA hearing.




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      Next, Appellant contends that her plea counsel was ineffective for

failing to file a post-sentence motion to withdraw her plea.          Initially,

Appellant does not claim that she requested counsel to file such a motion, or

provide any basis on which counsel should have done so.               With no

explanation from Appellant about what issue(s) counsel should have raised

in a post-sentence motion, she has not demonstrated that she was

prejudiced by counsel’s conduct.    Therefore, the PCRA court did not err in

determining that there were no genuine issues of material fact warranting a

hearing on this claim.

      Appellant also asserts that plea counsel ineffectively failed to file a

direct appeal on her behalf. This Court has stated: “[B]efore a court will find

ineffectiveness for failing to file a direct appeal, the petitioner must prove

that he requested a direct appeal and counsel disregarded that request.”

Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011) (citing

Commonwealth v. Bath, 907 A.2d 619 (Pa. Super. 2006)); see also

Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999) (holding 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 constitutes prejudice for purposes of [42 Pa.C.S. §]

9543(a)(2)(ii)) (emphasis added).

      Here, at no point in Appellant’s PCRA petition did she state that she

asked counsel to file a direct appeal on her behalf. Instead, she argued that

it was counsel’s duty to consult with her about filing an appeal, which

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counsel failed to do.   See PCRA Petition at 11.     Appellant reiterates this

argument in her appellate brief, citing in support the United States Supreme

Court’s decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000). There, the

Court held “[t]hat 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.

      Appellant has failed to prove that Flores-Ortega applies in this case.

She does not state that she informed counsel of her desire to appeal, or

discuss any way in which such a desire was ‘reasonably demonstrated.’

Moreover, Appellant does not explain why counsel should have had reason to

believe a rational defendant in Appellant’s position would want to file an

appeal.   Indeed, the record does not support such a conclusion.        As the

PCRA court points out, “Appellant pled guilty to a negotiated plea and was

sentenced in accordance with the plea agreement.”        PCO at 5.    There is

nothing in the record indicating any error or invalidity in the plea or

sentencing proceedings.    Accordingly, Appellant has failed to convince us

that she presented a genuine issue of material fact warranting an

evidentiary hearing on this claim.

      Finally, Appellant argues that counsel was ineffective for not seeking to

withdraw “in a timely manner so post-sentence counsel could be appointed

in time to preserve her post-sentence rights.”    Appellant’s Brief at 18. In

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her PCRA petition, Appellant did not explain what issue(s) her newly-

appointed counsel could have raised in a post-sentence motion had plea

counsel withdrawn in a timely fashion.       Moreover, even assuming that

newly-appointed counsel would have filed a post-sentence motion to

withdraw Appellant’s plea, Appellant again offered no explanation of what

argument(s) counsel could have raised in such a motion. Accordingly, she

did not demonstrate that she suffered prejudice due to plea counsel’s failure

to withdraw earlier.

      For the above stated reasons, it is apparent from the record and

Appellant’s PCRA petition that she failed to plead sufficient facts in support

of her claims of plea counsel’s ineffectiveness to warrant an evidentiary

hearing.   Therefore, the PCRA court did not err in denying her petition

without a hearing.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2014




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