J-S10043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

FERNANDO FLORES,

                            Appellant                  No. 2480 EDA 2015


                     Appeal from the PCRA Order July 6, 2015
              in the Court of Common Pleas of Northampton County
                Criminal Division at No.: CP-48-CR-0001629-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED FEBRUARY 02, 2016

        Appellant, Fernando Flores, appeals from the order dismissing his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. Appellant claims that plea counsel was ineffective in failing

to consult with him as to whether he wished to file a direct appeal.          We

affirm.

        This case arises from Appellant’s sexual abuse of his adopted

daughter, while she was between the ages of thirteen and fifteen years old.

The PCRA court aptly summarized the relevant factual and procedural history

as follows:
              On June 2[6], 2013, a criminal information was filed
        against [Appellant] charging him with fifteen (15) counts of rape
        (F1); fifteen (15) counts of statutory sexual assault (F2); fifteen
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       (15) counts of sexual assault (F2); fifteen (15) counts of
       aggravated indecent assault of a victim less than 16 years of age
       (F2); fifteen (15) counts of incest (F2); and fifteen counts of
       endangering the welfare of children by a parent or guardian
       (F3).

             On September 6, 2013, [Appellant], represented by
       Attorney Michael McGinley, entered into a negotiated guilty plea
       with the Commonwealth, wherein [Appellant] pled guilty to eight
       (8) counts of sexual assault, and in exchange, the
       Commonwealth withdrew the remaining charges. Pursuant to
       the entry of the aforementioned plea, [Appellant] executed a
       written guilty plea colloquy, a written post-sentencing rights
       colloquy, and he received an oral colloquy during which he was
       informed of his right to file a direct appeal. After accepting the
       plea as knowing and voluntary, the court ordered a pre-sentence
       investigation and the performance of an evaluation by the
       Sexual Offender Assessment Board for a determination as to
       whether [Appellant] qualified as a sexually violent predator
       under SORNA.[1]

              After the court’s receipt and review of the aforementioned
       evaluations, [Appellant] appeared for sentencing on December 5,
       2013, at which time he received a standard range sentence of
       fifty-four (54) months to one hundred twenty (120) months in a
       state correctional institution [on each count]. Each of the eight
       (8) counts of sexual assault were to be served consecutively to
       the other counts, for an aggregate term of thirty-six (36) to
       eighty (80) years of incarceration. After the court announced
       the sentence, [Appellant] was made aware of his appellate
       rights, and his written acknowledgement of such rights was
       made a part of the record.

              On October 17, 2014, [Appellant] filed a pro se PCRA
       petition, wherein he alleged (1) ineffective 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; and
       (2) the imposition of a sentence greater than the lawful
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1
 Pennsylvania’s Sex Offender Registration and Notification Act, 42 Pa.C.S.A.
§§ 9799.10—9799.41.



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       maximum. On October 28, 2014, this court granted [Appellant]
       a PCRA issue framing conference and appointed Robert Sletvold,
       Esquire, as [Appellant’s] PCRA counsel.

             On April 22, 2015, this court held a hearing on
       [Appellant’s] PCRA petition wherein both [Appellant] and
       Attorney McGinley testified regarding the issue of whether
       [Appellant] requested Attorney McGinley to file a direct appeal of
       this court’s December 5, 2013 sentence. After the hearing, this
       court granted the parties three (3) weeks thereafter to file briefs
       in support of their positions. . . .

(PCRA Court Opinion, 7/06/15, at 1-3) (record citations, footnotes and some

capitalization omitted).

       On July 6, 2015, the court entered its order and opinion dismissing the

PCRA petition. This timely appeal followed.2

       Appellant raises one issue for our review: “Whether the PCRA [c]ourt

erred by finding that counsel was not ineffective for failing to consult with

[Appellant] regarding his desire to appeal the sentence and to take that

appeal?” (Appellant’s Brief, at 6). Appellant argues that counsel failed to

make a reasonable effort to consult with him to discover his wishes

regarding a direct appeal. (See id. at 10-11). Appellant also maintains that

he attempted to write counsel letters from prison, but that his ability to

request an appeal was hampered by his placement in a restrictive housing

unit. (See id.). This issue does not merit relief.
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2
  Although the PCRA court did not order Appellant to file a concise statement
of errors complained of on appeal, he filed a statement on July 24, 2015.
See Pa.R.A.P. 1925(b). On July 31, 2015, the court filed a Rule 1925(a)
statement relying on its opinion entered July 6, 2015 for its reasons for
dismissing the PCRA petition. See Pa.R.A.P. 1925(a).



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            We begin by noting our well-settled standard of review. In
      reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determination is supported by the record and free
      of legal error. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level. It is
      well-settled that a PCRA court’s credibility determinations are
      binding upon an appellate court so long as they are supported by
      the record. However, this Court reviews the PCRA court’s legal
      conclusions de novo.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

and quotation marks omitted).

      To prevail on a petition for PCRA relief on grounds of ineffective

assistance   of   counsel,   a   petitioner    must   plead   and   prove,   by   a

preponderance of the evidence:

      (2) That the conviction or sentence resulted from . . . :

                                     *    *     *

       (ii) Ineffective 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.A. § 9543(a)(2)(ii).

      An appellant must demonstrate “(1) that the underlying claim is of

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

her action or inaction; and (3) that, but for the errors and omissions of

counsel, there is a reasonable probability that the outcome of the

proceedings would have been different.”         Commonwealth v. McDermitt,

66 A.3d 810, 813 (Pa. Super. 2013) (citation omitted).              “The failure to

satisfy any prong of this test will cause the entire claim to fail.” Id. (citation


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omitted). “It is well-established that counsel is presumed effective, and [a

PCRA       petitioner]   bears    the     burden   of   proving    ineffectiveness.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779-80 (Pa. Super.

2015) (en banc), appeal denied, 123 A.3d 331 (Pa. 2015) (citations

omitted).

         “Ordinarily, . . . [b]efore a court will find ineffectiveness of counsel for

failing to file a direct appeal, the defendant must prove that he requested an

appeal and that counsel disregarded that request.”          McDermitt, supra at

814 (citation and internal quotation mark omitted). In addition,

         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 815 (citations omitted).

         Here, plea counsel testified that, before the trial court sentenced

Appellant, he met with Appellant to discuss appellate options if he were

dissatisfied with the sentence.         (See N.T. PCRA Hearing, 4/22/15, at 24).

After the court imposed sentence, counsel and Appellant again discussed

appellate options and counsel advised: “I want you to go back and think

about [the sentence].            If you do want to appeal, if you want a

reconsideration [of sentence], go through any of the things that we talked

about, let me know, give me a phone call, write me a letter, anything like

that.”    (Id. at 24-25; see id. at 27).        After sentencing, counsel received


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only one phone call, from a friend of Appellant, and the friend did not ask

him to visit Appellant or indicate that Appellant wished to file an appeal.

(See id. at 25). Counsel further testified that, although Appellant had been

very communicative in the past, he received only one single-paragraph letter

from Appellant following sentencing; in the letter, Appellant simply thanked

him for his representation and did not mention an appeal. (See id. at 23,

27-28).

       Appellant’s testimony at the PCRA hearing confirmed that, after the

court sentenced him, counsel specifically asked him if he wanted file any

post-sentence motions or a direct appeal. (See id. at 12, 16). Appellant

acknowledged that he did not ask counsel to file an appeal at that time.

(See id. at 6, 12, 16).        Although Appellant testified that he subsequently

attempted to communicate his dissatisfaction with his sentence by mailing

three letters to counsel,3 the PCRA court credited counsel’s testimony that

he received only one letter from Appellant thanking him for his services.

(See id. at 6-7, 13; PCRA Ct. Op., at 7-9).




____________________________________________


3
  At the hearing, Appellant offered purported copies of the letters he sent to
counsel indicating that he wished to file a petition seeking a reduction in his
sentence. (See PCRA Ct. Op., at 8 n.10; see also N.T. PCRA Hearing, at 8,
13). However, the documents he offered were not photocopies of letters,
but were alleged replicas that he copied by hand verbatim after he wrote the
original letters. (See PCRA Ct. Op., at 8 n.10; see also N.T. PCRA Hearing,
at 8-9, 12-14).



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      After review of the record, viewed in the light most favorable to the

Commonwealth as the prevailing party, and mindful that we are bound by

the PCRA court’s supported credibility determinations, we conclude that the

court did not err in determining Appellant failed to meet his burden of

proving ineffectiveness of counsel. See Reyes-Rodriguez, supra at 779-

80; Miller, supra at 992. The record reflects that counsel did consult with

Appellant regarding a direct appeal following sentencing; that Appellant

declined to file an appeal at that time; and that Appellant failed to contact

counsel to indicate his desire to challenge the sentence, despite his history

of communicativeness and demonstrated ability to contact counsel post-

sentencing.   See McDermitt, supra at 815.        Therefore, Appellant’s sole

issue on appeal does not merit relief. Accordingly, we affirm the order of the

PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2016




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