J-S34022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DANIEL JOSHUA GONZALEZ

                         Appellant                   No. 1629 MDA 2015


                Appeal from the Order Entered August 24, 2015
              In the Court of Common Pleas of Lancaster County
               Criminal Division at No: CP-36-CR-0005599-2013


BEFORE: PANELLA, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 22, 2016

      Appellant Daniel Joshua Gonzalez appeals from the August 24, 2015

order of the Court of Common Pleas of Lancaster County (“PCRA court”),

denying his petition for collateral relief under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

      The facts and procedural history underlying this case are uncontested.

As recounted by the PCRA court:

             On December 23, 2013, the Commonwealth filed a
      [c]riminal [i]nformation charging Appellant with one count of
      [a]ggravated [a]ssault [(18 Pa.C.S.A. § 2702(a)(1)] and one
      count of [c]riminal [c]onspiracy to commit [a]ggravated
      [a]ssault [(18 Pa.C.S.A. § 903(a))], both felonies of the first
      degree. Those charges arose out of an incident which occurred
      on October 22, 2013, where Appellant and several other
      individuals allegedly punched and kicked Tyron Sheppard
      (“victim”) in the head, rendering him unconscious. Appellant
      then proceeded to bend over and slash the victim’s face and
      neck area with an unknown edged weapon, causing a deep cut
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     to the neck. On June 17, 2014, a jury found Appellant guilty on
     both counts after a two-day trial.

           On June 18, 2014, an order was entered directing that a
     [p]re-[s]entence [i]nvestigation (“PSI”) [r]eport be completed.
     On August 25, 2014, a [s]entencing hearing was held before
     th[e trial c]ourt, at which time Appellant was sentenced on
     [c]ount 1 to a period of incarceration of not less than 10 years
     nor more than 20 years. On [c]ount 2, Appellant was sentenced
     to a period of incarceration of not less than 10 years nor more
     than 20 years, to be served consecutively to the sentence
     imposed on [c]ount 1.[FN1]       The result was an aggregate
     sentence of not less than 20 years nor more than 40 years’
     imprisonment in the state correctional institution.

        FN1. These sentences were in accord with the statutory
        maximum sentence of 20 years’ imprisonment for each
        count. See 18 Pa.C.S.A. § 1103.

           On August 29, 2014, Appellant’s trial counsel, Christopher
     P. Lyden, Esquire, filed a [p]ost-[s]entence [m]otion, which
     included an assertion that the deadly weapon enhancement
     contained in the sentencing guidelines was unconstitutional
     because it permits a judge and not a jury to determine whether
     a defendant used a deadly weapon during the commission of a
     crime.   Trial counsel asserted that Appellant should be re-
     sentenced without application of the deadly weapon
     enhancement. On September 16, 2014, the trial court entered
     an order denying Appellant’s [p]ost-[s]entence [m]otion.

            On September 30, 2014, Appellant’s trial counsel filed a
     [n]otice of [a]ppeal from the order denying his [p]ost-[s]entence
     [m]otion. On October 6, 2014, trial counsel filed a [s]tatement
     of [m]atters [c]omplained of on [a]ppeal (“Statement”), alleging
     that the trial court erred in failing to find the deadly weapon
     enhancement in the sentencing guidelines unconstitutional
     pursuant to Alleyne v. United States, 133 S. Ct. 2151 (2013)
     and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
     2014), where the jury did not find beyond a reasonable doubt
     the enhancement applied.       Counsel asserted Appellant was
     entitled to a new sentencing hearing based on this alleged error.

           On October 29, 2014, during the pendency of his direct
     appeal, Appellant filed a pro se PCRA Motion, alleging, inter alia,
     that trial counsel provided ineffective assistance of counsel.

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       Thus, trial counsel sent Appellant a letter dated November 5,
       2014, advising Appellant that he would have to discontinue his
       direct appeal if he wished to pursue a PCRA claim of ineffective
       assistance of counsel at the present time. Appellant thereafter
       signed a [p]raecipe for [d]iscontinuance[1] and mailed it back to
       trial counsel. As a result, trial counsel filed a [p]raecipe with the
       Superior Court of Pennsylvania seeking to withdraw and
       discontinue Appellant’s direct appeal, which was granted on
       November 25, 2014.

             On December 3, 2014, the trial court entered an order
       dismissing without prejudice Appellant’s PCRA [m]otion, noting
       that the court lacked jurisdiction over the PCRA [m]otion
       because it was filed during the pendency of a direct appeal. On
       January 15, 2015, Appellant refiled his pro se PCRA [petition], at
       which time R. Russel Pugh, Esquire, was appointed as
       Appellant’s PCRA counsel. On March 17, 2015, PCRA counsel
       filed an [a]mended PCRA [p]etition, alleging Appellant was
       denied his right to a direct appeal from judgment of sentence by
       the ineffective assistance of his trial counsel, who failed to
       explain the legal consequences of the withdrawal and
       discontinuance of his direct appeal. As relief, PCRA counsel was
       requesting reinstatement of Appellant’s direct appeal, nunc pro
       tunc.

              On June 17, 2015, the [PCRA c]ourt conducted an
       evidentiary hearing to address Appellant’s Amended PCRA
       [p]etition.[2] Following the hearing, the record was transcribed
       and the issues were briefed by counsel for both parties. In
       accordance with Pennsylvania Rule of Criminal Procedure 908,
       [the PCRA court] then conducted an independent review of the
       record. On August 24, 2015, the [PCRA c]ourt issued an opinion
____________________________________________


1
  Our review of the record reveals that Appellant did not sign a praecipe but
rather a motion to discontinue the appeal.
2
   At the PCRA hearing, Appellant’s appointed counsel confirmed that
Appellant would pursue the same claim in a nunc pro tunc direct appeal that
he raised in his discontinued direct appeal. N.T., PCRA Hearing, 6/17/15
at 24. That claim was, as noted earlier, whether the trial court erred under
Alleyne in applying the deadly weapon enhancement pursuant to 204 Pa.
Code § 303.9.



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        and order dismissing Appellant’s [a]mended PCRA [p]etition,
        finding Appellant failed to meet his burden of proving that trial
        counsel was ineffective or there was any resulting prejudice from
        trial counsel’s withdrawal of Appellant’s direct appeal.

               On September 22, 2015, Appellant filed a [n]otice of
        [a]ppeal to the Superior Court of Pennsylvania. A [Rule 1925(b)
        statement] was submitted on October 8, 2015, asserting that
        trial counsel provided ineffective assistance of counsel and the
        lower court erred in denying post-conviction relief where the
        discontinuance by trial counsel of Appellant’s direct appeal
        denied Appellant his right to appeal from judgment of sentence.
        In the alternative, Appellant alleges the Commonwealth did not
        meet its burden of proving a valid waiver by Appellant of his
        right to a direct appeal from judgment of sentence.

PCRA Court Opinion, 10/19/15, at 1-4 (internal record citations and some

footnotes omitted).

        On appeal,3 Appellant repeats the same two arguments. For ease of

disposition, we combine Appellant’s issues and restate them as follows.

Whether the PCRA court erred in denying his PCRA petition when his trial

counsel rendered ineffective assistance by discontinuing Appellant’s direct

appeal without properly colloquying him on the record to ensure that he

knowingly and intelligently waived his appeal rights. See Appellant’s Brief

at 1.




____________________________________________


3
  “In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of
fact and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).



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       A PCRA petitioner is entitled to relief if he pleads and proves that prior

counsel    rendered      ineffective   assistance   of   counsel.   42   Pa.C.S.A.

§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner

must plead and prove by a preponderance of the evidence that (1) the

underlying legal claim has arguable merit; (2) counsel had no reasonable

basis for acting or failing to act; and (3) the petitioner suffered resulting

prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.

Super. 2015) (en banc).         “A petitioner must prove all three factors of the

‘Pierce[4] test,’ or the claim fails.”5 Id.

       It is settled that

       [i]t is beyond cavil that a defendant has an absolute right to
       appeal, Pa. CONST. Art. V, Sec. 9, and the ultimate decision of
       whether to do so must be made by the defendant and not
       counsel. At the same time, it is well settled that a defendant
       may waive the right to appeal, provided such waiver is a
       “knowing and intelligent” act on the part of a defendant.

Commonwealth v. Dosch, 501 A.2d 667, 670 (Pa. Super. 1985).


____________________________________________


4
    Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
5
  Prejudice is presumed, however, in situations where counsel is ineffective
per se. Commonwealth v. Haun, 32 A.23d 697, 700 (Pa. 2011) (quoting
Commonwealth v. Lantzy, 736 A.2d 564, 570-71 (Pa. 1999)). Generally,
counsel is ineffective per se if he or she fails to file a requested appeal.
See Haun, supra; see Commonwealth v. Johnson, 889 A.2d 620, 622
(Pa. Super. 2005) (noting that a defendant “who is deprived entirely of his
right of direct appeal . . . is per se without effective assistance of counsel,
and is entitled to reinstatement of his direct appeal rights.”). The case
before us does not involve a situation implicating ineffectiveness per se.




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       Because we consider the third Pierce prong, i.e., prejudice, to be

dispositive of this appeal, we need not determine the first two prongs.6 As

stated, after Appellant filed a pro se PCRA petition during the pendency of

his direct appeal, trial counsel sent him a letter advising him to discontinue

the direct appeal if Appellant wished to pursue the PCRA claims. Eventually,

Appellant signed a motion to discontinue the appeal, resulting in the

termination of the appeal.         Appellant now asserts that trial counsel was

ineffective and seeks to have his direct appeal rights restored nunc pro tunc.

       Appellant’s ineffectiveness claim is premised on the argument that trial

counsel failed to apprise him of the consequences of relinquishing his direct

appeal rights.       To prevail on an effectiveness claim, Appellant must

demonstrate, inter alia, that he was prejudiced. It is settled that a petitioner

establishes prejudice by demonstrating that there is a reasonable probability

that the outcome of the proceedings would have been different but for

counsel’s action or inaction. Commonwealth v. Hutchinson, 25 A.3d 277,

285 (Pa. 2011) (citation omitted).             Thus, to establish prejudice here,

Appellant must demonstrate that the issue on direct appeal was meritorious

and that he would have prevailed but for trial counsel’s ineffective advice

____________________________________________


6
  Although we do not rule on whether Appellant’s ineffectiveness claim has
arguable merit, we note that the record is bereft of any indication that trial
counsel advised Appellant of the consequences of terminating his direct
appeal rights prior to discontinuing the appeal. See Trial Counsel’s Letter,
11/5/14.




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regarding termination of direct appeal. To reiterate, the sole issue raised on

the discontinued direct appeal was whether the trial court had erred under

Alleyne and related cases in applying the deadly weapon enhancement

pursuant to 204 Pa. Code § 303.9.                We agree with the PCRA court’s

conclusion that the application of the deadly weapon enhancement does not

run afoul of the Alleyne line of cases concerning the application of

mandatory minimum sentences. See Commonwealth v. Buterbaugh, 91

A.3d 1247, 1270 n.10 (Pa. Super. 2014) (en banc) (noting that Alleyne is

inapplicable   to   the   use   of   the    deadly   weapon   enhancement    when

determining a defendant’s sentencing range).          As we recently explained in

Commonwealth v. Ali, 112 A.3d at 1210 (Pa. Super. 2015), appeal

granted on other grounds, 127 A.3d 1286 (Pa. 2015):

             Alleyne    has    no    application    to   the   sentencing
      enhancements at issue in this case. The parameters of Alleyne
      are limited to the imposition of mandatory minimum sentences,
      i.e., where a legislature has prescribed a mandatory baseline
      sentence that a trial court must apply if certain conditions are
      met. The sentencing enhancements at issue impose no such
      floor. Rather, the enhancements only direct a sentencing court
      to consider a different range of potential minimum sentences,
      while preserving a trial court’s discretion to fashion an individual
      sentence. By their very character, sentencing enhancements do
      not share the attributes of a mandatory minimum sentence that
      the Supreme Court held to be elements of the offense that must
      be submitted to a jury. The enhancements do not bind a trial
      court to any particular sentencing floor, nor do they compel a
      trial court in any given case to impose a sentence higher than
      the court believes is warranted. They require only that a court
      consider a higher range of possible minimum sentences. Even
      then, the trial court need not sentence within that range; the
      court only must consider it. Thus, even though the triggering
      facts must be found by the judge and not the jury—which is one




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       of the elements of an Apprendi[7] or Alleyne analysis—the
       enhancements that the trial court applied in this case are not
       unconstitutional under Alleyne.

             . . . The enhancements do not bind the trial court to
       impose any particular sentence, nor do they compel the court to
       sentence within the specified range. Indeed, it is well-settled
       that the sentencing guidelines ultimately are only advisory.
       Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002).
       Thus, Alleyne has no application to the enhancements.

Ali, A.3d at 1226. Because Appellant would not have obtained relief on the

Alleyne issue raised in the discontinued direct appeal, he does not satisfy

the third Pierce prong—prejudice. In other words, we cannot conclude that

the discontinuation of Appellant’s direct appeal produced a different result

than a proper disposition of the direct appeal itself would have produced.

Accordingly, we conclude that the PCRA court did not err in denying

Appellant’s PCRA petition seeking reinstatement of his direct appeal rights

nunc pro tunc.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016



____________________________________________


7
    Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).



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