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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
BLAINE THOMAS MEASE,                     :         No. 1565 MDA 2017
                                         :
                         Appellant       :


               Appeal from the PCRA Order, September 21, 2017,
               in the Court of Common Pleas of Lancaster County
                Criminal Division at No. CP-36-CR-0006027-2015


BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 06, 2018

        Blaine Thomas Mease appeals the order of September 21, 2017,

issued by the Court of Common Pleas of Philadelphia County that denied his

amended PCRA1 petition. After careful review, we affirm.

        The factual and procedural history of this matter, as recounted by the

PCRA court, is as follows:

              By Criminal Information docketed to No. 6027 of
              2015, [appellant] was charged with burglary,
              criminal attempt at simple assault, and criminal
              mischief.[Footnote 1] The charges arose from an
              incident on December 7, 2015, where [appellant]
              entered the victim’s apartment without permission
              with the intent to commit the crime of simple
              assault. [Appellant] kicked the victim’s door in and
              attacked the victim.




1   Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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                [Footnote 1] 18 Pa.C.S.A. § 3502(1)(1),
                18 Pa.C.S.A. § 901(a), and 18 Pa.C.S.A.
                § 3304(a)(5), respectively.

          After arraignment in the Court of Common Pleas of
          Lancaster County, [appellant] entered a plea of
          nolo contendere to the charges of burglary and
          criminal attempt. The criminal mischief charge was
          to be nolle prossed. There was no agreement as to
          sentencing. The plea was presented on August 8,
          2016, and, after an on-the-record colloquy, the plea
          was accepted and sentencing was deferred pending
          the completion of a pre-sentence investigation.

          On November 9, 2016 [appellant] received the
          following sentence: 1-1/2 to 5 years’ incarceration
          for the burglary charge; and 6 to 24 months’
          incarceration for the criminal attempt at simple
          assault.    These sentences were ordered to run
          concurrently with each other. At the conclusion of
          the sentencing hearing, [appellant] acknowledged
          his post-sentence rights and indicated he had no
          questions for the [c]ourt regarding his sentence or
          his post-sentence rights. [Appellant] filed neither
          post[-]sentence motions nor a direct appeal from the
          above judgment of sentence.         [Appellant] was
          represented at the nolo contendere plea and
          sentencing hearing by privately retained counsel,
          Tilman P. Larson, Esquire.

          On March 20, 2017, [appellant] pro se filed a
          motion to modify and reduce sentence nunc pro
          tunc, which this Court deemed a petition for
          post[-]conviction collateral relief. In the motion,
          [appellant] alleged a failure by his trial counsel to file
          post-sentence motions and a direct appeal. Pursuant
          to Rule 904(A) of the Pennsylvania Rules of Criminal
          Procedure, Vincent J. Quinn, Esquire, was appointed
          to represent [appellant] on his collateral claims.
          After consulting with [appellant], Attorney Quinn
          filed an amended petition on May 15, 2017, which
          represented that Attorney Larson was ineffective for
          failing to perfect an appeal of the plea and
          sentencing allegedly requested by [appellant].


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            The Commonwealth conceded the necessity of an
            evidentiary hearing to adequately address this issue.
            Accordingly, an evidentiary hearing was held via
            videoconferencing on July 21, 2017.

Trial court opinion, 9/21/17 at 1-3 (citations and other footnotes omitted).

      At the July 21, 2017 hearing, appellant called as a witness his attorney

at trial, Tilman P. Larson, Esq. (“Attorney Larson”). Attorney Larson testified

that he met with appellant after sentencing and asked him if he had any

questions about what had just occurred, if he wanted to appeal, if he would

pay the remainder of the fee owed to Attorney Larson, and informed

appellant that he would contact the mother of his two children to let her

know the result. (Notes of testimony, 7/21/17 at 8-9.) With regard to the

possibility of an appeal, Attorney Larson recalled the following:

            The second item that we discussed, I asked him if he
            wanted to appeal, and he said, well, it’s not worth it.
            And I reminded him of the colloquy that he and I had
            discussed for an hour and a half before he pled and
            reminded him that it would be difficult, but if he
            wanted to appeal, he could. And I received no
            further indication from him that he wanted to appeal.

Id. at 8.

      On cross-examination, Attorney Larson stated that he would have filed

an appeal had appellant asked him to do so. (Id. at 11.)

      Appellant testified that when he spoke with Attorney Larson after

sentencing, Attorney Larson was primarily concerned with obtaining the

remaining $800 that appellant owed to Attorney Larson.              (Id. at 15.)

Appellant testified that Attorney Larson did not discuss filing post-sentence


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motions and did not recall Attorney Larson’s discussing the filing of an

appeal.        Appellant   did   not   remember    any    discussion   about   the

commencement of the appellate process.            (Id.)   On cross-examination,

appellant admitted that he did not ask Attorney Larson to file an appeal.

(Id. at 17.)

      By order dated September 21, 2017, the PCRA court denied the

amended PCRA petition. The PCRA court found Attorney Larson credible and

did not accept appellant’s testimony that Attorney Larson failed to confer

with him regarding the filing of an appeal. (Trial court opinion, 9/21/17 at

9.)

      Appellant filed a notice of appeal on October 3, 2017. On October 4,

2017, the PCRA court ordered appellant to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant complied

with the order on October 12, 2017. On October 17, 2017, the trial court

filed its memorandum opinion, pursuant to Pa.R.A.P. 1925(a), in which it

stated that it would rely on its opinion of September 21, 2017.

      Appellant raises the following issue for this court’s review: “Whether

the [PCRA] court erred in denying [appellant’s] amended PCRA [petition]

when he was denied his right to an appeal as a result of his ineffective

assistance of counsel?” (Appellant’s brief at 4 (full capitalization omitted).)

      Initially, we recite our standard of review:

               This Court’s standard of review regarding an order
               denying a petition under the PCRA is whether the


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          determination of the PCRA court is supported by the
          evidence of record and is free of legal error.
          Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
          795, 799 n. 2 (2005). The PCRA court’s findings will
          not be disturbed unless there is no support for the
          findings in the certified record. Commonwealth v.
          Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

          The law presumes counsel has rendered effective
          assistance.     Commonwealth v. Gonzalez, 858
          A.2d 1219, 1222 (Pa.Super. 2004), appeal denied,
          582 Pa. 695, 871 A.2d 189 (2005). To establish a
          claim of ineffective assistance of counsel, Appellant
          must demonstrate (1) the underlying claim is of
          arguable merit; (2) counsel’s action or inaction
          lacked any reasonable basis designed to effectuate
          Appellant’s interest; and (3) but for the errors and
          omissions of counsel, there is a reasonable
          probability that the outcome of the proceedings
          would have been different.       Commonwealth v.
          Johnson, 868 A.2d 1278, 1281 (Pa.Super. 2005),
          appeal denied, 583 Pa. 680, 877 A.2d 460 (2005)
          (internal citations omitted); Gonzalez, supra. The
          failure to satisfy any prong of the test for
          ineffectiveness will cause the claim to fail.
          Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651
          (2003). “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 ineffectiveness is of arguable
          merit. . . .” Commonwealth v. Pierce, 537 Pa.
          514, 524, 645 A.2d 189, 194 (1994). “Counsel
          cannot be found ineffective for failing to pursue a
          baseless or meritless claim.” Commonwealth v.
          Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

Commonwealth v. Taylor, 933 A.2d 1035, 1041-1042 (Pa.Super. 2007),

appeal denied, 951 A.2d 1163 (Pa. 2008).



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                    It is well settled that when a lawyer fails to file
              a direct appeal requested by the defendant, the
              defendant is automatically entitled to reinstatement
              of his direct appeal rights.      Commonwealth v.
              Lantzy, 558 Pa. 214, 736 A.2d 564 (1999). Where
              a defendant does not ask his attorney to file a direct
              appeal, counsel still may be held ineffective if he
              does not consult with his client about the client’s
              appellate rights. Roe v. Flores-Ortega, 528 U.S.
              470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000);
              [Commonwealth v. Carter, 21 A.3d 680, 682-683
              (Pa.Super. 2011)]. Such ineffectiveness, however,
              will only be found where a duty to consult arises
              either because there were issues of merit to raise on
              direct appeal or the defendant, in some manner,
              displayed signs of desiring an appeal.         Roe v.
              Flores-Ortega, supra.

Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa.Super. 2011),

appeal denied, 40 A.3d 1235 (Pa. 2012).

         Appellant contends that the PCRA court’s order should be reversed and

his direct appeal rights should be reinstated due to the ineffectiveness of

Attorney Larson in failing to file an appeal.       Appellant concedes that his

testimony regarding whether Attorney Larson asked him if he wanted to file

an appeal conflicts with Attorney Larson’s testimony. Appellant argues that

his version of the facts is correct because Attorney Larson is inexperienced,

they both agree that Attorney Larson asked about the payment of his fee,

and they both agree that Attorney Larson did not mention the filing of

post-sentence motions. Essentially, appellant is asking this court to reweigh

the facts and reassess the credibility determinations made by the PCRA

court.     This court is not permitted to do so.       A PCRA court’s credibility



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determinations are binding upon this court, if there is support for those

determinations in the record. Commonwealth v. Widgins, 29 A.3d 816,

820 (Pa.Super. 2011). Here, the PCRA court found Attorney Larson credible

and accepted his recitation of the past events.        The determination is

supported by Attorney Larson’s testimony.     Appellant’s claim of ineffective

assistance of counsel for failure to file an appeal is of no merit because

appellant told Attorney Larson that he did not want to appeal.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/6/2018




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