J-A29006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
                    v.                  :
                                        :
                                        :
DAVID MARTINEZ,                         :
                                        :
              Appellant                 :   No. 1639 EDA 2017

               Appeal from the Order Entered April 26, 2017
  In the Court of Common Pleas of Northampton County Criminal Division
                    at No(s): CP-48-CR-0001265-2013,
           CP-48-CR-0001266-2013, CP-48-CR-0001267-2013,
           CP-48-CR-0001268-2013, CP-48-CR-0001269-2013


BEFORE:    LAZARUS, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                         FILED MARCH 19, 2018

      David Martinez appeals from the order, entered in the Court of Common

Pleas of Northampton County, granting in part and denying in part his petition

filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

(“PCRA”). Upon review, we affirm.

      On January 2, 2014, Martinez entered a plea of nolo contendere to four

counts of aggravated indecent assault and one count of attempted aggravated

indecent assault.   The trial court accepted Martinez’s plea, as well as the

sentence negotiated with the Commonwealth. On April 16, 2014, upon receipt




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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of a praecipe for plea withdrawal filed by the Commonwealth, the court

ordered Martinez’s plea withdrawn, sua sponte.1

       Subsequently, on May 30, 2014, Martinez entered a guilty plea to three

counts of aggravated indecent assault, one count of attempted aggravated

indecent    assault,    and   one    count     of   sexual   assault.   Although   the

Commonwealth had agreed to an aggregate sentence of 12 to 24 years’

incarceration, plus 16 years of probation, the court mistakenly sentenced

Martinez to an aggregate sentence of 12 to 24 years, plus twenty years’

probation. Martinez’s pro se post-sentence motions were denied by operation

of law and he filed no direct appeal.




____________________________________________


1Pennsylvania Rule of Criminal Procedure 591(A) provides for the withdrawal
of guilty and nolo contendere pleas as follows:

       (A) At any time before the imposition of sentence, the court may,
       in its discretion, permit, upon motion of the defendant, or direct,
       sua sponte, the withdrawal of a plea of guilty or nolo contendere
       and the substitution of a plea of not guilty.

Pa.R.Crim.P. 591(A). Although the Rules of Criminal Procedure do not provide
a mechanism by which the Commonwealth may initiate plea withdrawal
proceedings, “[t]ypically, the trial court will have no cause to exercise its
authority to direct a plea withdrawal under this rule without information, and
the Commonwealth most often is the only party with the means and incentive
to provide that information to the court.” Commonwealth v. Herbert, 85
A.3d 558, 568-69 (Pa. Super. 2014) (Wecht, J., concurring). Accordingly, a
trial court will label its order “sua sponte,” “even though the order in fact has
issued in response to information provided by the Commonwealth.” Id. at
569.




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       On January 30, 2015, Martinez filed a counseled PCRA petition seeking,

inter alia, reinstatement of his original nolo contendere plea and negotiated

sentence or, in the alterative, reinstatement of his direct appellate rights, nunc

pro tunc. On May 22, 2015, the court reinstated Martinez’s appellate rights,

nunc pro tunc.      Martinez subsequently filed a pro se notice of appeal and

petition to remove counsel. Counsel also sought leave to withdraw and, on

June 19, 2015, was granted leave to do so by the trial court. On March 31,

2016, this Court dismissed Martinez’s pro se appeal for failure to file a brief.

       On June 1, 2016, Martinez filed the instant counseled PCRA petition

alleging, inter alia, that trial counsel was ineffective for failing to file an

interlocutory appeal of the trial court’s order withdrawing his January 2, 2014

nolo contendere plea.2 After a hearing held on September 16 and 28, 2016,

the PCRA court issued an order denying Martinez relief as to this

ineffectiveness claim. This timely appeal follows, in which Martinez asserts

that the PCRA court erred in failing to find trial counsel ineffective for failing

to file an interlocutory appeal.

       We begin by noting that our standard of review of the denial of a PCRA

petition is limited to examining whether the evidence of record supports the

court’s determination and whether its decision is free of legal error.

____________________________________________


2 In his June 1, 2016 petition, Martinez also challenged the trial court’s
deviation from the agreed-upon sentence. In an amended PCRA petition, filed
with leave of court, Martinez also challenged the legality of one of his
sentences. The Commonwealth conceded the merit of these two claims, and
the PCRA court granted relief.

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Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011). This Court

grants great deference to the factual findings of the PCRA court if the record

contains any support for those findings. Commonwealth v. Boyd, 923 A.2d

513 (Pa. Super. 2007). We give no such deference, however, to the court’s

legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

      Martinez’s sole appellate claim alleges the ineffectiveness of his trial

counsel. Our standard of review of such claims is well-settled. First, we note

that counsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant. Commonwealth v. Thomas, 783 A.2d

328, 332 (Pa. Super. 2001).     In order to prevail on a claim of ineffective

assistance of counsel, a petitioner must show, by a preponderance of the

evidence, 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. Commonwealth

v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007). A petitioner must show:

(1) that the underlying claim has merit; (2) counsel had no reasonable

strategic basis for his or her action or inaction; and (3) but for the errors or

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

proceedings would have been different. Id. The failure to prove any one of

the three prongs results in the failure of petitioner’s claim. “The threshold

inquiry in ineffectiveness claims is whether the issue/argument/tactic which

counsel has foregone and which forms the basis for the assertion of

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ineffectiveness is of arguable merit.” Commonwealth v. Taylor, 933 A.2d

1035, 1041-42 (Pa. Super. 2007), citing Commonwealth v. Pierce, 645

A.2d 189, 194 (Pa. 1994). “Counsel cannot be found ineffective for failing to

pursue a baseless or meritless claim.”       Id., citing Commonwealth v.

Poplawski, 852 A.2d 323, 327 (Pa. Super. 2004).

      Here, Martinez asserts that he repeatedly asked his trial counsel,

Matthew Potts, Esquire, to file an appeal of the trial court’s order sua sponte

withdrawing his nolo contendere plea. Attorney Potts did not file an appeal

and, accordingly, Martinez asserts that he was ineffective.      This claim is

meritless.

      Where a defendant clearly asks for an appeal and counsel fails to file

one, a presumption of prejudice arises regardless of the merits of the

underlying issues. Commonwealth v. Donaghy, 33 A.3d 12, 15 (Pa. Super.

2011), citing Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999).

However, where a defendant has not clearly conveyed his wishes, counsel

nonetheless 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.

Commonwealth v. Touw, 781 A.2d 1250, 1254 (Pa. Super. 2001), citing

Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000).           To obtain relief, the

defendant must also show prejudice, which in these circumstances requires a

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showing that “there is a reasonable probability that, but for counsel’s deficient

failure to consult with him about an appeal, he would have timely appealed.”

Flores-Ortega, 528 U.S. at 484.

      Here, the trial court properly concluded that Attorney Potts was not

ineffective because he had a reasonable basis for not filing an appeal –

namely, that Martinez did not desire to pursue an appeal and was prepared to

go to trial. At the hearing on Martinez’s PCRA petition, Attorney Potts testified

as follows:

      [DEFENSE COUNSEL]: Now, Mr. Potts, getting back to where we
      left off, on or after April 16th did you go visit Mr. Martinez over at
      Northampton County Prison to discuss the next steps in this case?

      A: I did.

      Q: And what did the two of you talk about?

      A: And it was either the day of or it was very close proximity to
      the 16th where Judge Giordano vacated the nolo plea. I went to
      the jail and again not being certain of whether or not [an appeal]
      would be successful, I did let [Martinez] know we may have some
      avenue to try and get the nolo plea, those terms back by filing
      some sort of an appeal. And what [Martinez] told me at that point
      was he was actually relieved the [j]udge vacated the plea because
      he wanted – at that point wanted to go to trial. That was the
      thrust of our conversation that day was essentially that [Martinez]
      at that point didn’t want to pursue anything regarding an appeal
      or any kind of motions concerning trying to force the plea to
      happen. He was prepared to go to trial.

N.T. PCRA Hearing, 9/16/16, at 21-22.

      Based on the foregoing testimony of Attorney Potts, which the PCRA

court credited, Martinez clearly conveyed to counsel his wishes that no appeal

or other action be taken on his behalf in an attempt to reinstate the nolo



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contendere plea. Accordingly, Attorney Potts had a reasonable basis for his

actions and Martinez cannot establish that counsel’s performance was

constitutionally deficient. He is entitled to no relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/18




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