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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
HOWARD INGRAM,                            :         No. 729 EDA 2015
                                          :
                         Appellant        :


                Appeal from the PCRA Order, February 10, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0005634-2008


BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MARCH 03, 2016

        Howard Ingram appeals from the order entered February 10, 2015,

denying his PCRA1 petition. We affirm.

        In a prior memorandum, this court set forth the history of this case as

follows:

                    On November 26, 2007, Appellant was charged
              with murder, possession of an instrument of crime,
              and three violations of the Uniform Firearms Act –
              persons not to possess, possession of an unlicensed
              firearm, and possession of a firearm in public in
              Philadelphia.     The complaint averred that on
              November 25, 2007, Appellant shot David Howarth
              to death near 1615 Brill Street, Philadelphia.
              Appellant was not permitted to carry a gun due to
              his prior criminal record and thus was unlicensed to
              carry the weapon in question.



1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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                  The record contains a written guilty plea
           colloquy that established the following.[2]        On
           October 19, 2009, Appellant tendered a negotiated
           guilty plea to third degree murder and possession of
           an instrument of crime.         The Commonwealth
           withdrew the firearms charges. The sentence was to
           be not more than fifteen to forty-five years in jail.
           On October 19, 2009, the court accepted the guilty
           plea and sentenced Appellant in accordance with the
           plea arrangement to fifteen to forty-five years
           incarceration. Appellant’s post-sentence rights were
           set forth in written form, including the fact that he
           had to file an appeal with [sic] thirty days and had
           the right to file a post-sentence motion. Appellant
           and his attorney executed the explanation of
           Appellant’s post-sentence rights.         Neither a
           post-sentence motion nor a direct appeal was filed.

                  On May 21, 2010, Appellant filed a timely
           pro se PCRA petition. He sought both to withdraw
           his guilty plea on the basis that it was induced by
           ineffective assistance of counsel and reinstatement
           of his direct appeal rights nunc pro tunc. In that
           petition, Appellant specifically averred that counsel
           did not comply with his request to file a
           post-sentence motion and that counsel failed to
           “protect petitioner’s rights to file his appeal, as
           requested by petitioner.” Pro Se PCRA Petition,
           [5]/2[1]/10, at 3. PCRA counsel was appointed and
           filed an amended petition, seeking the right to file a
           direct appeal.     Counsel averred that Appellant
           “wanted and requested that his attorney file an
           appeal in this matter, . . . but it was never done.”
           Amended Petition, 9/21/12, at 2. In the amended
           petition, Appellant demanded that he either be
           granted an evidentiary hearing or accorded
           immediate reinstatement of his direct appeal rights.

                 On December 3, 2012, the PCRA court issued a
           Pa.R.Crim.P. 907 notice to dismiss the petition

2
  The trial court also conducted a thorough oral plea colloquy and explained
appellant’s post-sentence and appeal rights. (Notes of testimony, 10/19/09
at 12-15.)


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            without a hearing on the basis that the issues raised
            were meritless. The petition was dismissed and this
            appeal followed.     The docket indicates that on
            November 28, 2013, the PCRA court issued a
            “No Opinion Letter.” Appellant raises a single issue:

                        Whether the trial court erred in
                  dismissing Petitioner’s amended Post
                  Conviction Relief Act (PCRA) petition
                  without an on the record evidentiary
                  hearing where the amended petition
                  alleged that trial counsel rendered
                  ineffective assistance by failing to file
                  notice of appeal from the judgment of
                  sentence following a guilty plea as
                  requested by Petitioner?

            Appellant’s brief at 2.

Commonwealth v. Ingram, No. 364 EDA 2013, unpublished memorandum

at 1-3 (Pa.Super. filed August 19, 2014).

      On appeal, this court reversed and remanded for an evidentiary

hearing, finding that there were outstanding issues of material fact, i.e.,

whether appellant asked for a direct appeal. Id. at 4. “Indeed, even when

a direct appeal is not requested, a defendant is entitled to an evidentiary

hearing based upon an averment that trial counsel was ineffective for

neglecting to consult with him about the filing of one.”                Id., citing

Commonwealth        v.   Carter,      21    A.3d   680   (Pa.Super.   2011).   We

relinquished jurisdiction. Id. at 5.

      In fact, there was an evidentiary hearing held on appellant’s PCRA

petition, on December 3, 2012, at which appellant and plea counsel testified.

The hearing was held before the Honorable Carolyn Engel Temin, who also


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presided over appellant’s guilty plea hearing. Judge Temin has since retired.

The confusion appeared to stem from the fact that after holding an

evidentiary hearing on the matter, Judge Temin issued Rule 907 notice,

which is required when a PCRA petition is to be dismissed without a hearing.

(Docket #D6.)      In addition, on April 10, 2013, after the appeal was filed,

PCRA     counsel    was    permitted    to   withdraw.       Current    counsel,

J. Michael Farrell, Esq., was appointed on April 16, 2013.      Attorney Farrell

was unaware that a hearing had occurred on December 3, 2012.

       On remand, a status hearing was held on February 10, 2015, before

the Honorable Glenn B. Bronson.        Judge Bronson noted that Judge Temin

did, in fact, hold a hearing on appellant’s PCRA petition and made credibility

determinations, specifically rejecting appellant’s allegation that he asked trial

counsel to withdraw his guilty plea and file an appeal. (Notes of testimony,

2/10/15 at 5.)     On February 10, 2015, Judge Bronson denied appellant’s

petition, noting that this court’s decision remanding the case was clearly

premised on the erroneous belief that no hearing had been held and that

“Judge Temin did, in fact, conduct a hearing on defendant’s claim and issued

detailed factual and credibility determinations before rejecting his allegations

as incredible[.]” (Order, 2/10/15 at 1; Docket #D13.)

       A timely notice of appeal was filed on March 12, 2015. On March 13,

2015, appellant was ordered to file a concise statement of errors complained

of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b),



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42 Pa.C.S.A. Appellant filed his Rule 1925(b) statement on Monday, April 6,

2015.3 On May 12, 2015, the PCRA court issued a Rule 1925(a) opinion.

      On September 8, 2015, Attorney Farrell filed a petition to withdraw

and accompanying “Anders brief.”4 In a September 17, 2015 per curiam

order,   Attorney   Farrell   was   directed   to   provide   the   Superior   Court

Prothonotary with copies of a letter to appellant advising him of his right to

retain new counsel or proceed pro se in this appeal. See Commonwealth

v. Friend, 896 A.2d 607 (Pa.Super. 2006) (counsel must forward to the

petitioner a copy of the “no-merit” letter and a statement advising the

petitioner that, in the event the court grants the application of counsel to

withdraw, the petitioner has the right to proceed pro se or with the



3
  Friday, April 3, 2015 was a court holiday (Good Friday). Therefore,
appellant’s Rule 1925(b) statement was timely. See 1 Pa.C.S.A. § 1908
(whenever the last day of any period of time referred to in a statute shall fall
on Saturday or Sunday, or on any day made a legal holiday by the laws of
this Commonwealth or of the United States, such day shall be omitted from
the computation).
4
  Attorney Farrell has filed an Anders brief rather than a Turner/Finley
no-merit letter.      Anders v. California, 386 U.S. 738 (1967);
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On an appeal from the
denial of a PCRA petition, a Turner/Finley letter is the appropriate filing.
However, we may accept an Anders brief instead. See Commonwealth v.
Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004), appeal denied,
882 A.2d 477 (Pa. 2005) (“[B]ecause an Anders brief provides greater
protection to the defendant, we may accept an Anders brief in lieu of a
Turner/Finley letter.”). See also Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009) (guiding Pennsylvania courts’ application of Anders).
Despite counsel’s error, we find that he has complied substantially with the
Turner/Finley requirements. Hence, we overlook his procedural misstep.


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assistance of privately retained counsel); Commonwealth v. Widgins, 29

A.3d 816, 818 (Pa.Super. 2011) (the additional requirement imposed by the

Friend decision remains intact).    On October 2, 2015, copies of the letter

from Attorney Farrell to appellant were received by this court. Appellant has

not filed a pro se response to Attorney Farrell’s petition to withdraw.

      The sole issue for our review is appellant’s allegation that plea counsel,

Helen Levin, Esq., was ineffective for failing to file post-sentence motions

and/or a direct appeal on his behalf. Appellant sought reinstatement of his

direct appeal rights nunc pro tunc.

            The PCRA court’s order is subject to the following
            principles on review:

                   Our scope of review when examining a
                   PCRA court’s denial of relief is limited to
                   whether    the     court’s   findings   are
                   supported by the record and the order is
                   otherwise     free    of    legal     error.
                   Commonwealth v. Jermyn, 551 Pa.
                   96,     709      A.2d      849      (1998);
                   Commonwealth v. Morales, 549 Pa.
                   400,     701      A.2d     516      (1997);
                   Commonwealth v. Carbone, 707 A.2d
                   1145 (Pa.Super.1998).         We will not
                   disturb findings that are supported by
                   the record. Commonwealth v. Yager,
                   454 Pa.Super. 428, 685 A.2d 1000
                   (1996) (en banc), appeal denied, 549
                   Pa. 716, 701 A.2d 577 (1997);
                   Commonwealth v. Bell, 706 A.2d 855
                   (Pa.Super.1998), appeal denied, 557
                   Pa. 624, 732 A.2d 611 (1998).

            Commonwealth v. Lambert, 765 A.2d 306, 323
            (Pa.Super.2000). Furthermore, as Appellant’s issue
            is stated in terms of ineffectiveness of counsel,


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          Appellant must show that:        (1) his claim has
          arguable merit; (2) counsel’s performance had no
          reasonable basis; and (3) counsel’s action or inaction
          worked to Appellant’s prejudice. Commonwealth v.
          Miller, 560 Pa. 500, 746 A.2d 592 (2000).

Commonwealth v. Qualls, 785 A.2d 1007, 1009-1010 (Pa.Super. 2001).

          Generally, a petitioner who has pled guilty and later
          seeks post conviction relief must prove that the
          ineffectiveness of his plea counsel “unlawfully
          induced” his plea, making it involuntary or
          unknowing. 42 Pa.C.S.A. § 9542(a)(2)(iii); Yager,
          supra at 1004. However, the case of a petitioner
          who was denied a requested direct appeal by the
          ineffectiveness of his trial or plea counsel presents a
          special problem of constitutional dimension.         In
          Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d
          564 (1999), our Supreme Court resolved this
          problem as follows:

                 [W]here 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, [denying]
                 the accused the assistance of counsel
                 guaranteed by the Sixth Amendment to
                 the United States Constitution and
                 Article I, Section 9 of the Pennsylvania
                 Constitution, and constitutes prejudice.
                 . . . Therefore, in such circumstances,
                 and where the remaining requirements
                 of the PCRA are satisfied, the petitioner
                 is not required to establish his
                 innocence or demonstrate the merits of
                 the issue or issues which would have
                 been raised on appeal.

          Id. at 226-27, 736 A.2d at 572 (footnotes and
          citations omitted).

          Counsel’s unjustified failure to file a direct appeal will
          constitute prejudice per se under Lantzy, if the


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             petitioner can establish that he did ask counsel to file
             an appeal. Commonwealth v. Harmon, 738 A.2d
             1023, 1024 (Pa.Super.1999), appeal denied, 562
             Pa. 666, 753 A.2d 815 (2000).

Id. at 1010. See also Commonwealth v. Bath, 907 A.2d 619, 622-623

(Pa.Super. 2006), appeal denied, 918 A.2d 741 (Pa. 2007) (counsel has a

duty to adequately consult with the defendant as to the advantages and

disadvantages of an appeal where there is reason to think that a defendant

would want to appeal, e.g., because there are non-frivolous grounds for

appeal, or the defendant reasonably demonstrated to counsel that he was

interested in appealing), discussing Roe v. Flores-Ortega, 528 U.S. 470

(2000), and Commonwealth v. Touw, 781 A.2d 1250 (Pa.Super. 2001).

       At the PCRA hearing held on December 3, 2012, appellant testified

that   he   asked   plea   counsel,   Attorney   Levin,   to   file   a   motion   for

reconsideration of sentence. (Notes of testimony, 12/3/12 at 8.) According

to appellant, he spoke with Attorney Levin immediately following the guilty

plea proceeding. (Id. at 10-11, 13.)

       Attorney Levin testified that she has been a public defender since

1985, and was assigned to the homicide unit in 1995.             (Id. at 14.)      She

remembered appellant’s case. (Id. at 15.) Attorney Levin recalled that they

were not anticipating a guilty plea and were prepared to go to trial. (Id. at

16.) Attorney Levin testified that she had no recollection of appellant asking

her to file post-sentence motions or an appeal, and there is no indication

that he did so in her file. (Id.) Attorney Levin testified that if appellant had


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asked her to file a motion for reconsideration of sentence, she would have

explained to him that the trial court could not reconsider a negotiated

sentence, but that she could file a motion to withdraw the guilty plea on his

behalf. (Id. at 20-21.) However, she does not recall appellant ever asking

her to file any post-sentence motions. (Id.)

      After hearing all the testimony, Judge Temin found that appellant’s

guilty plea was entered knowingly, intelligently, and voluntarily, and that he

did not ask Attorney Levin to file any post-sentence motions or an appeal:

             I believe Ms. Levin’s testimony, which is -- and if
             [he] had asked her to file an appeal, she would have
             proceeded as she testified that if -- she would have
             indicated that I couldn’t reconsider the sentence,
             that she couldn’t ask me to reconsider the sentence.
             But if he wanted to file an appeal, she would have
             filed an appeal. Whether or not she thought it was
             going to be a successful appeal, she would have
             done that. So the petition is denied.

Id. at 25.

      Essentially, the PCRA court made a credibility determination, which is

unassailable   on   appeal.    See   Widgins,    29   A.3d   at   820,   citing

Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009) (“The PCRA

court’s credibility determinations are binding on this Court, where the record

supports those determinations.”). We have no basis on which to set aside

the PCRA court’s determination that appellant did not request the filing of

post-sentence motions or a direct appeal; nor was there any reason for

Attorney Levin to think that appellant would want to take an appeal.



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Appellant had entered a negotiated plea following a thorough and probing

plea colloquy. The PCRA court specifically found that appellant’s testimony

that he asked Attorney Levin to file a motion for reconsideration was not

believable.    As   the   record   supports   the   PCRA   court’s   credibility

determination, we agree with counsel that appellant’s claim lacks merit and

the instant appeal is frivolous. Therefore, we will affirm the order denying

appellant nunc pro tunc relief, and grant Attorney Farrell’s petition to

withdraw.

      Petition to withdraw granted; order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2016




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