J-S20010-17

                             2017 PA Super 243

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

ANDRE C. GREEN

                        Appellant                   No. 2240 EDA 2016


                Appeal from the PCRA Order June 27, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0012604-2011


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.

OPINION BY BOWES, J.:                                 FILED JULY 24, 2017

      Andre Green appeals from the June 27, 2016 order denying his PCRA

petition seeking reinstatement of his appellate rights nunc pro tunc.     We

reverse and remand for reinstatement of Appellant’s direct appellate rights.

      The facts and procedural history are as follows.    On September 27,

2011, Philadelphia Police Officer Kevin Devlin and his partner observed

Appellant in an area known for drug trafficking.     He saw Appellant bend

down between the curb and a parked vehicle.        As Officer Devlin and his

partner approached, someone on the street alerted nearby persons to their

presence. Appellant stood up, looked at the officers in their car, grabbed his
J-S20010-17



waistband, and walked into a nearby store.1         The officers testified they

believed they had witnessed an aborted drug transaction since cars parked

near a curb are often utilized to stash drugs and a male was standing near

Appellant’s location. Officer Devlin parked his vehicle and followed Appellant

into the store. He ordered Appellant to place his hands in the air. Appellant

complied, and the officer saw a gun in Appellant’s waistband.          He was

arrested and charged with carrying a firearm without a license, prohibited

possession of a firearm, and carrying a firearm in public in Philadelphia.

       Appellant retained trial counsel, who filed a motion to suppress the

firearm, alleging that the officers lacked reasonable suspicion to seize

Appellant inside the store. Following an evidentiary hearing on October 4,

2012, the trial court denied the motion, and Appellant proceeded to a

stipulated bench trial.        The court found him guilty at all counts.     On

November 29, 2012, Appellant was sentenced to two to four years

incarceration for carrying a firearm without a license, and a consecutive

aggregate period of eight years of probation at the other counts. Appellant

did not file an appeal.

       On November 3, 2013, Appellant filed a pro se PCRA petition. Counsel

was appointed and thereafter filed amended petitions on July 23, 2015 and
____________________________________________


1
   The certified record does not include the notes of testimony from the
actual suppression hearing. The current record does not clearly indicate
whether or not the officers were in marked police vehicles.



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May 16, 2016.           The PCRA court held an evidentiary hearing and

subsequently denied relief.          Appellant timely filed a notice of appeal. 2

Appellant raises one issue for our review.

       Did the trial court err in not reinstating Appellant’s right to file an
       appeal nunc pro tunc from the judgment of sentence due to
       ineffective assistance [of] trial defense [counsel] who failed to
       discuss with the Appellant a non-frivolous ground for appeal?

Appellant’s brief at 2.

       “[W]e review a denial of PCRA relief to determine whether the findings

of the PCRA court are supported by the record and free of legal error.”

Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa.Super. 2017)

(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)).                 A

PCRA court's credibility findings are to be accorded great deference, and

where supported by the record, such determinations are binding on a

reviewing court.      Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa.

1998).    A PCRA court’s legal conclusions, however, are reviewed de novo.

Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011).

       Appellant relies upon Roe v. Flores-Ortega, 528 U.S. 470 (2000),

which supplies the legal framework for the question presented on appeal.

Therein, the High Court addressed counsel’s duty in the situation herein,
____________________________________________


2
  Resolution of this case was delayed by a September 2, 2016, application
for remand to file a Pa.R.A.P. 1925(b) statement. We granted that request
on September 21, 2016.




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when the defendant has not clearly conveyed one way or the other whether

he wishes to appeal. Id. The Court declined to impose either a per se duty

to file a notice of appeal or a per se duty to consult. “We cannot say, as a

constitutional matter, that in every case counsel's failure to consult with

the defendant about an appeal is necessarily unreasonable, and therefore

deficient.” Id. at 479 (emphasis in original as italics). However, the Court

noted its expectation that “courts . . . will find, in the vast majority of cases,

that counsel had a duty to consult with the defendant about an appeal.” Id.

at 481.

      Flores-Ortega established that a court must first assess whether

consultation has occurred; if so, deficient performance is established only if

counsel failed to file a requested notice of appeal. The Court stated:

      [W]e believe the question whether counsel has performed
      deficiently by not filing a notice of appeal is best answered by
      first asking a separate, but antecedent, question: whether
      counsel in fact consulted with the defendant about an appeal.
      We employ the term “consult” to convey a specific meaning-
      advising the defendant about the advantages and disadvantages
      of taking an appeal, and making a reasonable effort to discover
      the defendant's wishes. If counsel has consulted with the
      defendant, the question of deficient performance is easily
      answered: Counsel performs in a professionally unreasonable
      manner only by failing to follow the defendant's express
      instructions with respect to an appeal.

Id. at 478 (internal citation omitted).        If, however, counsel has not

consulted with the defendant, “the court must in turn ask a second, and




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subsidiary, question: whether counsel's failure to consult with the defendant

itself constitutes deficient performance.” Id.

      Presently, the Commonwealth maintains that trial counsel did, in fact,

consult with Appellant, and, since it is undisputed that Appellant did not ask

counsel to file an appeal, we must affirm the order of the court.

Additionally, the Commonwealth highlights that the trial court informed

Appellant of his right to an appeal following sentencing, and trial counsel

testified at the PCRA hearing that he always discussed appellate rights with

his clients. Since the trial court credited that testimony, the Commonwealth

maintains Appellant is not entitled to relief.

      Appellant testified at the PCRA hearing that he was unaware of his

appellate rights.   N.T. PCRA Hearing, 6/16/16, at 7.    At the time of that

hearing, the sentencing transcript was not available; however, the parties

now agree that Appellant was informed on the record that he had a right to

file an appeal within thirty days. The PCRA court’s rejection of Appellant’s

testimony that he was wholly unaware of his appellate rights is unassailable

as a credibility finding that is fully supported by the record. However, we do

not find that Appellant’s unbelievable testimony compels the further

conclusion that his Flores-Ortega claim is defeated. The asserted failure in

this case is the deficient failure to consult regarding an appeal of the

preserved grounds. Indeed, Flores-Ortega itself involved a defendant who

was told of his appellate rights. “After pronouncing sentence, the trial judge

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informed respondent, ‘You may file an appeal within 60 days from today's

date with this Court.’”     Id. at 473-74.   Accordingly, the mere fact that

Appellant was informed of his appellate rights as a generic proposition does

not prohibit a finding of prejudice in this case. Compare Commonwealth

v. Markowitz, 32 A.3d 706, 716-17 (Pa.Super. 2011) (concluding that

where all issues are wholly frivolous, it is enough that a defendant is aware

that he has a right to an appeal).       Therefore, Appellant’s unbelievable

testimony does not settle the matter.

      We now examine trial counsel’s testimony. Counsel testified that he

and Appellant discussed the suppression motion and “what his potential

sentencing would be in the event that he pled guilty and mitigated versus

fighting the case on a motion.” Id. at 27-28. With respect to any appeal,

trial counsel testified as follows:

      Q. Do you remember speaking with him at all about taking an
      appeal?

      A. No.

      Q. Do you –

      A. Well, I will say this: A specific conversation about, “I want to
      appeal,” and then getting into, “Okay, we’re going to talk about
      this appeal.”

      But I will say this: I did have a conversation – I don’t know
      how long it would’ve been – that the reason that we’re not
      pleading guilty after denying the motion would be we
      have to put this up at least by stipulation, preserve your
      rights for purposes of any substantive appeal.



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       And so I know I had the conversation either before the day or
       perhaps briefly during the day. I can’t be sure.

Id. at 28-29 (emphases added).3 Counsel further testified that he discussed

appellate rights with Appellant as he would with all clients. Id. at 29.

       The PCRA court concluded that Appellant was aware that the

suppression issue was preserved and was informed of his appellate rights,

and therefore counsel sufficiently consulted with Appellant.    Moreover, the

PCRA court concluded that Appellant failed to establish that a rational

defendant would wish to appeal since the suppression motion was meritless.

We disagree.

       We agree that we are bound by the credibility determination that a

conversation between counsel and Appellant regarding appellate rights

occurred.      However, the question is not simply whether consultation

occurred, it is whether that consultation was adequate within the meaning of

that term as expressed in Flores-Ortega, which is a conclusion of law

subject to review de novo. Hence, the credibility finding does not control the

outcome.

       In Commonwealth v. Markowitz, 32 A.3d 706, 716-17 (Pa.Super.

2011), we noted that Flores-Ortega and subsequent case law in this

____________________________________________


3
    We presume that the day referenced is October 4, 2012, when the
suppression motion was denied and the parties proceeded to the stipulated
trial.



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Commonwealth did not address “the adequacy of the consultation required.

Nonetheless, it is evident that incorrect advice or failing to properly advise a

client can be grounds for an ineffectiveness claim.”        We recognize that

Appellant does not allege that counsel gave erroneous advice. Yet the gap

between an allegation of erroneous advice and the failure to give any

semblance of advice one way or the other is not particularly large, if it exists

at all.

          Herein, the consultation relied upon by the PCRA court and the

Commonwealth was not advice regarding the advantages or disadvantages

of an appeal; instead, it was merely advice regarding issue preservation for

a future appeal. Flores-Ortega makes plain that the consultation must, at

minimum, encompass advice regarding an actual appeal, not simply how to

preserve issues for a theoretical appeal.4 This is why the test requires the

attorney to make “a reasonable effort to discover the defendant’s wishes.”

Flores-Ortega, supra at 478. The Court did not suggest that it is enough

to merely inform the defendant that an appeal is possible in the abstract

sense.       Plea counsel unequivocally denied discussing an appeal yet

specifically litigated this matter in a way to preserve a particular issue for
____________________________________________


4
  Nor do we find that counsel’s testimony that he regularly discusses
appellate issues, which the PCRA court credited, ends the matter. We
cannot accept a conclusory statement that appellate rights were discussed
without knowing the content of that discussion.




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appeal.       Therefore,    we    find   that   the   conversation   regarding   issue

preservation does not meet Flores-Ortega’s demand.

       Having concluded that the consultation was inadequate, we now

address whether counsel actually had a duty to consult.                  Plainly, any

inadequacy in the consultation is irrelevant if there was no duty to consult.

In Commonwealth v. McDermitt, 66 A.3d 810, 815 (Pa.Super. 2013), we

explained that

       Pursuant to Flores–Ortega and [Commonwealth v. Touw,
       781 A.2d 1250, 1254 (Pa.Super. 2001)], 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.

       Applying this test, we find that a rational defendant would want to

appeal an issue that counsel, through procedural maneuvering, explicitly

preserved.5 Therefore, counsel had a duty to consult. The mere fact that

____________________________________________


5
  Both the PCRA court and the Commonwealth discuss the suppression
motion’s likelihood of success on appeal, suggesting that counsel had no
duty to consult.      These discussions ignore the fact that trial counsel
obviously disagreed with this assessment by virtue of the fact he filed the
motion and preserved the issue for appeal. By claiming the issue utterly
lacked merit, the Commonwealth and the PCRA court imply that trial counsel
was ineffective for pursuing suppression in the first place instead of advising
a guilty plea and citing the plea as a mitigating circumstance.

(Footnote Continued Next Page)


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the suppression issue was preserved for review is highly relevant to our

analysis. Flores-Ortega stated that issue preservation is probative of

whether a rational defendant would desire an appeal:

      Although not determinative, a highly relevant factor in this
      inquiry will be whether the conviction follows a trial or a guilty
      plea, both because a guilty plea reduces the scope of potentially
      appealable issues and because such a plea may indicate that the
      defendant seeks an end to judicial proceedings. Even in cases
      when the defendant pleads guilty, the court must consider
      such factors as whether the defendant received the
      sentence bargained for as part of the plea and whether
      the plea expressly reserved or waived some or all appeal
      rights. Only by considering all relevant factors in a given case
      can a court properly determine whether a rational defendant
      would have desired an appeal or that the particular defendant
      sufficiently demonstrated to counsel an interest in an appeal.

Id. at 480 (emphasis added). Clearly, the fact that Appellant proceeded to

a stipulated trial, which preserved his suppression issue for appellate review,

is relevant to the rational defendant inquiry.

      Next, we find that a rational defendant in Appellant’s position would

desire an appeal because the suppression issue did not turn on a matter of

credibility, which this Court cannot review on appeal, but on a matter of law,




                       _______________________
(Footnote Continued)

Moreover, the PCRA court concluded that the claim is meritless, but “a claim
that lacks merit is not necessarily wholly frivolous[.]” Commonwealth v.
Markowitz, 32 A.3d 706, 717 (Pa.Super. 2011). The duty to consult arises
if there is a non-frivolous issue to raise, not an ultimately meritorious issue.




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which this Court would review de novo.6 Commonwealth v. Brown, 996

A.2d 473, 476 (Pa. 2010) (appellate court applies de novo review over

suppression court’s legal conclusions).

       Finally, vindication on direct appeal would be entirely favorable to

Appellant, as a ruling in his favor would require suppression of the firearms

found on Appellant’s person.           Thus, this is not a case where appellate

success would be harmful to the client’s ultimate interests.          Compare

McDermitt, supra (finding that counsel had no duty to consult where

appellant pleaded no contest and received lenient sentence of probation;

rational defendant would not desire an appeal from a generous sentence).

We therefore find that counsel was ineffective for failing to take the extra

step of consulting with Appellant, following sentencing, to ascertain whether

or not Appellant wished to present the preserved suppression issue to this

Court.7

____________________________________________


6
   Arguably, the mere fact that trial counsel preserved the issue for appeal is
a sufficient ground to hold that a rational defendant would desire an appeal,
since counsel is presumed effective. Flores-Ortega stated that a non-
frivolous ground is an example of why a rational defendant would wish to
appeal, not that it is the only criterion that matters.
7
   We recognize the PCRA court’s conclusion that, since counsel discussed
with Appellant the preservation of the suppression issue as a component of
proceeding to the stipulated trial, Appellant was armed with all information
he needed to request an appeal. In other words, the PCRA court concluded
that the pre-sentencing advice was sufficient.

(Footnote Continued Next Page)


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      We now address the prejudice prong. To establish that the failure to

consult entitles Appellant to relief, he must demonstrate that “but for

counsel’s deficient conduct, he would have appealed.”               Flores-Ortega,

supra at 486. The prejudice inquiry is satisfied if Appellant demonstrates a

nonfrivolous issue for appeal.          “[T]he prejudice inquiry . . . is not wholly

dissimilar from the inquiry used to determine whether counsel performed

deficiently in the first place; specifically, both may be satisfied if the

defendant shows nonfrivolous grounds for appeal.”            Id. at 486.   Applying

this test, Appellant has established prejudice, as counsel failed to provide

advice regarding an appeal of the suppression issue that was explicitly

preserved for review. Hence, he is entitled to relief.
                       _______________________
(Footnote Continued)

It does not appear that any Pennsylvania case has directly addressed
whether consultation can occur before the right to appeal is actually
triggered, i.e., post-sentencing. See e.g. United States v. Cong Van
Pham, 722 F.3d 320, 324, n.16 (5th Cir. 2013) (declining to impose
mechanical rule that consultation must always follow sentencing, but noting
in the particular case that counsel merely “discussed an appeal in the
abstract” prior to sentencing). As discussed supra, we find that adequate
consultation requires advice regarding whether an appeal should actually be
pursued. Therefore, we need not decide that question.

Furthermore, we note that the record reveals that the discussion of
stipulation and preserving the issue occurred no later than October 4, 2012,
the date Appellant was found guilty following the stipulated trial. However,
Appellant was not sentenced until November 29, 2012. Thus, to the extent
pre-sentencing consultation is possible, it is doubtful that the October 4,
2012 conversation would qualify since Appellant cannot reasonably be
expected to remember the nuances of a conversation that occurred almost
two months before he could actually file an appeal. This is not a case where
the pre-sentencing consultation immediately preceded sentencing.



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      Order reversed.     Case remanded with instructions.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2017




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