J-S50020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                          Appellee

                     v.

LEONARD GEORDLEY ANGLADE

                          Appellant               No. 3482 EDA 2014


             Appeal from the PCRA Order November 13, 2014
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0000103-2012


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                    FILED NOVEMBER 10, 2015

      Appellant, Leonard Geordley Anglade, appeals from the November 13,

2014 order denying his amended petition filed pursuant to the Post

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

review, we affirm.

      The trial court summarized the procedural history of this case as

follows.

           On September 30, 2011, [Appellant] was arrested
           and charged with: Rape by Forcible Compulsion
           (“Rape”) (18 Pa.C.S.A. § 3121(a)(1)); Involuntary
           Deviate Sexual Intercourse by Forcible Compulsion
           (“IDSI”) (18 Pa.C.S.A. § 3123(a)(1)); Aggravated
           Indecent Assault (18 Pa.C.S.A. § 3125(a)(1), (4));
           Indecent Assault (18 Pa.C.S.A. § 3126(a)(1), (2),
           (4)); Burglary (18 Pa.C.S.A. § 3502(a)); Criminal
           Trespass (18 Pa.C.S.A. § 3503(a)(1)(i)); and Sexual
           Assault (18 Pa.C.S.A. § 3124.1). [Appellant] pled
           guilty to all charges on January 17, 2012. However,
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          on [July 30, 2012], [Appellant] withdrew his guilty
          plea and proceeded to trial. The Commonwealth
          withdrew all but five charges: Rape, IDSI,
          Aggravated Indecent Assault, Criminal Trespass, and
          Sexual Assault.

                A jury trial began on November 26, 2012, with
          the Honorable Ronald C. Nagle presiding. Private
          counsel, Scott Lawrence Kramer, Esq., represented
          [Appellant] at trial. After three days of hearing
          evidence and argument, the jury found [Appellant]
          guilty of Rape, IDSI, Criminal Trespass, and Sexual
          Assault. The jury found [Appellant] not guilty of
          Aggravated indecent Assault.

                 On February 15, 2013, Judge Nagle sentenced
          [Appellant] to a term of 58 to 116 months of
          incarceration on the Rape [] and a term of 2 to 4
          years of incarceration on the Criminal Trespass [] to
          run concurrent to the Rape sentence. On February
          21, 2013, Mr. Kramer filed a Motion for Post-
          Sentence Relief pursuant to Pa.R.Crim.P. 720(B). On
          February 26, 2013, the trial court scheduled a
          hearing. However, before the hearing took place,
          [Appellant’s] counsel, Mr. Kramer, filed a request to
          withdraw [Appellant’s] Motion for Post-Sentence
          Relief, which was granted by Judge Nagle on May 10,
          2013.

                 Thereafter,   [Appellant]   sought    legal
          representation through the Chester County Public
          Defender’s Office. On June 7, 2013, an Appeal to
          the Superior Court was filed by Mr. Nathan
          Schenker, Esq. and on June 10, 2013, Judge Nagle
          filed a Rule 1925(b) Order. On June 13, 2013, Mr.
          Schenker requested an extension to file his
          Statement of Errors Complained of on Appeal. This
          request was granted.

                On June 20, 2013, Stewart C. Paintin, Esquire,
          also a Public Defender, entered his appearance for
          [Appellant] and on July 29, 2013, Mr. Paintin filed a




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              Statement of Intent to File an Anders/McClendon[1]
              Brief pursuant to Pa.R.A.P. 1925(c)(4). On October
              17, 2013, Mr. Paintin filed a Praecipe to Withdraw
              the Appeal with the Superior Court.

                    On June 4, 2014, [Appellant] filed a pro se
              P.C.R.A. Petition. We appointed legal counsel on
              June 5, 2014 pursuant to Pa.R.Crim.P. 904(C). On
              August 26, 2014, P.C.R.A. counsel filed an Amended
              P.C.R.A. Petition claiming [Appellant’s] appellate
              counsel, Stewart C. Paintin, Esq., provided
              ineffective assistance of counsel when he withdrew
              [Appellant’s] direct appeal to the Superior Court
              without [Appellant’s] knowledge or consent. In his
              Amended P.C.R.A. Petition, [Appellant] requested the
              reinstatement of his direct appeal rights nunc pro
              tunc.

                     On October 22, 2014, [the PCRA court] held an
              evidentiary hearing on [Appellant’s] Amended
              P.C.R.A Petition.        [The PCRA court] denied
              [Appellant’s] Amended P.C.R.A. Petition and stated
              [its] findings of fact and reasoning in open court at
              the conclusion of the October 22, 2014 hearing. On
              November 13, 2014, [the PCRA court] filed an Order
              denying [Appellant] his requested relief ….

Trial Court Opinion, 1/28/15, at 1-3 (footnote omitted).      Appellant filed a

timely notice of appeal on December 5, 2014.2

       On appeal, Appellant raises the following issue for our review.

              Whether     trial counsel     was    ineffective  for
              discontinuing Appellant’s appeal without authority or
              permission to do so after an appeal had been filed in

____________________________________________
1
 Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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            the Superior Court of Pennsylvania on behalf of
            Appellant?

Appellant’s Brief at 4.

      We address this issue according to the following standards.

            Our standard of review of the denial of a PCRA
            petition is limited to examining whether the court’s
            rulings are supported by the evidence of record and
            free of legal error. This Court treats the findings of
            the PCRA court with deference if the record supports
            those findings.     It is an appellant’s burden to
            persuade this Court that the PCRA court erred and
            that relief is due.

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)

(citation omitted).

            [Our] 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
            PCRA court level.      The PCRA court’s credibility
            determinations, when supported by the record, are
            binding on this Court. However, this Court applies a
            de novo standard of review to the PCRA court’s legal
            conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc) (internal quotation marks and citations omitted), appeal granted,

105 A.3d 658 (Pa. 2014). Additionally, in order to be eligible for PCRA relief,

a petitioner must plead and prove by a preponderance of the evidence that

his conviction or sentence arose from one or more of the errors listed at 42

Pa.C.S.A. § 9543(a)(2).   These issues must be neither previously litigated

nor waived. Id. at § 9543(a)(3).




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     When reviewing a claim of ineffective assistance of counsel, we apply

the following test, first articulated by our Supreme Court in Commonwealth

v. Pierce, 527 A.2d 973 (Pa. 1987).

                 When considering such a claim, courts
           presume that counsel was effective, and place upon
           the appellant the burden of proving otherwise.
           Counsel cannot be found ineffective for failure to
           assert a baseless claim.

                  To succeed on a claim that counsel was
           ineffective, Appellant must demonstrate that: (1) the
           claim is of arguable merit; (2) counsel had no
           reasonable strategic basis for his or her action or
           inaction; and (3) counsel’s ineffectiveness prejudiced
           him.

                                      …

                [T]o demonstrate prejudice, appellant must
           show there is a reasonable probability that, but for
           counsel’s error, the outcome of the proceeding would
           have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal

quotation marks and citations omitted). “Failure to establish any prong of

the test will defeat an ineffectiveness claim.”        Commonwealth v.

Birdsong, 24 A.3d 319, 330 (Pa. 2011).

     Instantly,   Appellant argues that his direct appeal counsel was

ineffective for withdrawing Appellant’s direct appeal before this Court

without Appellant’s permission.   Appellant’s Brief at 6.   Appellant insists

direct appeal counsel should have followed the dictates of Anders, by

seeking to withdraw if he believed there were no non-frivolous issues to


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appeal.     Id. at 7.   Appellant maintains that by withdrawing the appeal,

counsel deprived him of his absolute right to a direct appeal of his judgment

of sentence. Id. Accordingly, Appellant concludes the PCRA court erred by

failing to grant him leave to file a direct appeal nunc pro tunc.       Id.   We

disagree.

      Appellant acknowledges that “[t]estimony at the [PCRA] hearing was

conflicting in that Appellant testified that he did not give his permission for

the appeal to be withdrawn[,] while [A]ttorney Paintin said that Appellant

did give permission to withdraw the appeal.” Id. at 6-7 (citations omitted).

Based on the testimony, the PCRA court made the following specific findings.

                     At the evidentiary hearing held on October 22,
              2014, [Appellant] and Stewart Paintin, Esq. testified.
              We make the following findings of fact pursuant to
              their testimony.

                    1.    Stewart Paintin, Esq. has been with the
              Chester County Public Defender’s Office for 25 years.
              Mr. Paintin represented [Appellant] during the
              appellate process only.

                    2.    An Appeal to the Superior Court was filed
              on June 7, 2013.

                     3.     After June 2013, Mr. Paintin reviewed the
              trial court record.

                    4.    On October 11, 2013, Mr. Paintin
              telephoned [Appellant] and informed [Appellant] that
              it was his legal opinion that trial counsel failed to
              preserve any meritorious issues for appeal. During
              the 30 minute phone call, Mr. Paintin explained to
              [Appellant] that the best avenue for relief was to
              withdraw the Appeal and to file a PCRA Petition.


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                  5.    During the October 11, 2013 phone call,
            [Appellant] gave consent to Mr. Paintin to withdraw
            the Appeal.

                  6.   On October 17, 2013, Mr. Paintin filed a
            Praecipe to Withdraw the Appeal with the Superior
            Court.

                    7. Mr. Paintin never met [Appellant] face-to-
            face.

                   8. On October 20, 2013, [Appellant] wrote to
            Mr. Paintin and acknowledged his consent to the
            withdrawal of his Appeal. [Appellant] also set forth
            his desire to pursue relief through a P.C.R.A.
            Petition.

                  9. We find Mr. Paintin credible in his testimony
            that he discussed withdrawing the Appeal and filing a
            P.C.R.A. Petition with [Appellant].

                  10. We find Mr. Paintin credible in his
            testimony that [Appellant] gave consent to withdraw
            the Appeal.

                  11. We do not find [Appellant] credible in his
            testimony that he did not give his consent to have
            the Appeal withdrawn as this testimony is
            contradicted by [Appellant’s] own statements in his
            October 20, 2013 letter.

Trial Court Opinion, 1/28/15, at 14-15 (citations omitted).

      Our careful scrutiny of the record confirms the trial court’s findings are

amply   supported.      As   noted   above,   “[t]he   PCRA   court’s   credibility

determinations, when supported by the record, are binding on this Court.”

Medina, supra. Appellant’s claim that his direct appeal counsel bypassed

the strictures of Anders by filing a praecipe to withdraw Appellant’s direct

appeal without his consent, lacks a factual foundation. As determined by the

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PCRA court, Appellant concurred in the decision to withdraw his direct appeal

in order to pursue PCRA relief. See N.T., 10/22/14, at 11, 20 Ex. C-2 (letter

dated    October   30,    2013,   from   Appellant   to   direct   appeal   counsel,

acknowledging withdrawal of the direct appeal and addressing issues to

include in a PCRA petition).

        Based on the foregoing, we conclude Appellant has failed to present a

claim of arguable merit to establish his direct appeal counsel was ineffective.

Appellant having failed to meet this prong of the Pierce test, we discern no

abuse of discretion or error of law by the PCRA court in denying Appellant’s

amended PCRA petition. See Birdsong, supra. Accordingly, we affirm the

PCRA court’s November 13, 2014 order denying Appellant’s amended PCRA

petition.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2015




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