J-S29013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES HOUSER,                            :
                                               :
                       Appellant               :   No. 3865 EDA 2017

                 Appeal from the PCRA Order October 23, 2017
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006793-2015


BEFORE:      PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY PANELLA, J.                          FILED SEPTEMBER 14, 2018

        Charles Houser appeals from the order entered in the Delaware County

Court of Common Pleas, which dismissed his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Further, Scott D.

Galloway, Esquire, has filed an application to withdraw from representation

and an Anders brief.1 We affirm and grant Attorney Galloway leave to

withdraw.
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 Attorney Galloway has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), apparently in the mistaken belief that an Anders brief is
required where counsel seeks to withdraw on appeal following the denial of
PCRA relief. The dictates of Anders apply only on direct appeal, not on
collateral review. Counsel files an Anders brief on direct appeal when he
determines the appeal is “wholly frivolous.” Id., at 744. The appropriate filing
would have been a Turner/Finley “no-merit” letter. See Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213
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       The relevant facts and procedural history are as follows. Following a

bench trial, the court convicted Houser of misrepresenting his criminal record

in connection with his attempt to purchase a firearm and unsworn falsification

to authorities. The trial court sentenced Houser to 12 to 24 months’

incarceration, followed by a probationary term. Houser did not file a direct

appeal.

       Instead, Houser filed a timely pro se PCRA petition. In his petition,

Houser alleged trial counsel’s ineffectiveness for failing to challenge his

inaccurate criminal history at trial and file a direct appeal as requested. The

PCRA court appointed Attorney Galloway as PCRA counsel. After reviewing the

record, Attorney Galloway filed a petition to withdraw as counsel along with a

letter asserting that there was no merit to either of Houser’s contentions.

However, because the PCRA court determined that Houser’s petition raised a

question of fact regarding whether Houser asked trial counsel to file an appeal,

the court denied Attorney Galloway’s request to withdraw and scheduled an

evidentiary hearing on the issue.2


____________________________________________


(Pa. Super. 1988) (en banc). Regardless, because an Anders brief provides
greater protection to a defendant than a Turner/Finley no-merit letter, this
Court may accept an Anders brief in lieu of a Turner/Finley letter. See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).

2 In this order, the PCRA court indicated its intent to dismiss Houser’s other
claim, that trial counsel was ineffective for failing to challenge the accuracy of
his criminal history, without a hearing. See Order, 7/18/17. The PCRA court
ultimately dismissed this claim. See Order, 10/23/17. This claim is not at issue
in this appeal.

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      At   the   hearing,   Houser      testified   that   James,   Wright,    Esquire,

represented at him trial and sentencing. See N.T., PCRA Hearing, 10/20/17,

at 5. Prior to sentencing, Houser claimed he met with Attorney Wright and

was informed that his sentencing “paperwork” was “all screwed up.” Id., at

5-6, 8. Based upon this information, Houser asserted he told Attorney Wright

to appeal his sentence. See id., at 6. However, Houser later discovered

Attorney Wright did not appeal his sentence as requested. See id., at 6-7.

      Attorney    Wright    testified   at   the    hearing.   While   he     confirmed

representing Houser during his trial and sentencing, he did not recall having

a conversation about sentencing “paperwork” with Houser prior to sentencing.

See id., at 11-12. Further, Attorney Wright testified that it was his practice

to note in a client’s file when an appeal had been requested. See id., at 12-

13. However, Attorney Wright indicated that there was no notation in Houser’s

file that he ever requested an appeal. See id., at 13-14.

      At the conclusion of the hearing, the PCRA court indicated that it found

Attorney Wright’s testimony that Houser did not request an appeal to be

credible. See id., at 15. The PCRA court disbelieved Houser. Therefore, the

court denied Houser’s PCRA petition. Houser filed a timely appeal. Attorney

Galloway has filed a petition to withdraw on appeal as well as an Anders brief.

      Prior to addressing the merits of Houser’s requested appeal, we must

first examine Attorney Galloway’s request to withdraw. Attorney Galloway’s

brief more closely resembles an advocate’s brief than an Anders brief. See

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009) (articulating

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Anders requirements). Attorney Galloway, however, has indicated he sent

Houser a copy of the brief, the petition to withdraw, and a letter informing

Houser of his right to proceed pro se or with new counsel. See

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (providing

that counsel must inform client by letter of rights to proceed once counsel

moves to withdraw and append a copy of the letter to the petition). Houser

has not filed a response to either of Attorney Galloway’s filings.

      The brief may not meet the necessary technical requirements of Anders

and Santiago, but under the circumstances of this case, we need not remand

for the preparation of a proper brief. Houser’s issue on appeal is based solely

on the PCRA court’s credibility determination, and our resolution of this issue

would not be aided, in any meaningful way, by a new filing in compliance with

Turner/Finley.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). The PCRA court’s

findings will not be disturbed unless the certified record lacks support for the

findings. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001). “Further, the PCRA court’s credibility determinations are binding on

this Court, where there is record support for those determinations.”

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)

(citation omitted).

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      Houser’s sole claim on appeal is that trial counsel rendered ineffective

assistance when he failed to file Houser’s requested direct appeal.

      To succeed on this claim, Houser must establish, by pleading and

proving, that the underlying issue has arguable merit; that counsel’s actions

lacked an objective reasonable basis; and that actual prejudice resulted from

counsel’s act or failure to act. See Commonwealth v. Rykard, 55 A.3d 1177,

1190 (Pa. Super. 2012). “Generally, if counsel ignores a defendant’s request

to file a direct appeal, the defendant is entitled to have his appellate rights

restored.” Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super.

2006) (citing Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999)). This is

because “where 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” and such failing constitutes prejudice per se.

Lantzy, 736 A.2d at 572 (footnote omitted). However, “relief is only

appropriate where the petitioner pleads and proves that a timely appeal was

in fact requested and that counsel ignored that request.” Spencer, 892 A.2d

at 842 (citation omitted).

      Here, Houser pled his claim in his PCRA petition and attempted to prove

this claim by testifying that he requested Attorney Wright file a direct appeal

on his behalf. However, Attorney Wright testified that he had no recollection

of this request. In ruling against Houser, the PCRA court accepted Attorney

Wright’s testimony as credible and accurate—and squarely rejected Houser’s

version of events. See N.T., PCRA Hearing, 10/20/17, at 15. See also PCRA

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Court’s Opinion, 1/19/18, at 6. The record supports this credibility

determination. Thus, we are bound by that finding. See Anderson, 995 A.2d

at 1189.

     As the record contradicts Houser’s assertion that trial counsel ignored

his timely request to file a direct appeal, we affirm the PCRA court’s order

dismissing his PCRA petition and we grant Attorney Galloway’s petition to

withdraw as counsel. Our independent review of the certified record does not

reveal any other meritorious issues.

     Order affirmed. Petition to withdraw as counsel granted.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/14/18




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