J-S36014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 MARCUS D. JORDAN,                         :
                                           :
                     Appellant.            :   No. 473 EDA 2017


                Appeal from the PCRA Order, January 13, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0009862-2013,
              CP-51-CR-0010246-2013, CP-51-CR-0010247-2013,
                           CP-51-CR-0011620-2010.


BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                    FILED SEPTEMBER 18, 2018

      Marcus D. Jordan appeals from the order denying his first petition for

relief filed under the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§

9541-46. We affirm.

      The PCRA summarized the pertinent facts and procedural history as

follows:

               On October 24, 2013, [Jordan] entered non-negotiated
           pleas of guilt before the Honorable Chris R. Wogan, on four
           separate bills of information, to numerous charges of
           [Robbery], Assault and related Weapons Offenses. Judge
           Wogan bifurcated [Jordan’s] sentencing, immediately
           sentencing him to an aggregate 7 years [of] probation on
           the weapons offenses. On April 28, 2014, [Jordan] was
           sentenced on the remaining charges, resulting in an
           aggregate sentence of 9 to 35 years of incarceration
           followed by 27 years of probation.
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            [Jordan] subsequently filed a pro se motion to reconsider
         sentence, on May 5, 2014, at CP-51-CR-0009862-2013
         only. This motion was denied by operation of law on
         September 4, [2014].

             On August 23, 2015, [Jordan] timely filed the instant pro
         se PCRA petition[.] On April 23, 2016, [PCRA counsel] was
         appointed as counsel to represent [Jordan] for the purposes
         of his PCRA petition. On July 12, 2016, [PCRA counsel] filed
         [an] amended PCRA petition and memorandum of law on
         [Jordan’s] behalf. On August 2, 2016, the Commonwealth
         filed a motion to dismiss [Jordan’s] PCRA petition. On
         January 13, [2017], the [PCRA court], after a hearing,
         entered an Order dismissing [Jordan’s] PCRA petition as
         being without merit.

PCRA Court Opinion, 9/21/17, at 1-2 (footnotes omitted). This timely appeal

follows. Both Jordan and the PCRA court have complied with Pa.R.A.P. 1925.

      Jordan raises the following issues:

         I.    Whether the [PCRA] Court erred in not granting relief
               on the PCRA petition alleging trial counsel was
               ineffective for not filing a motion for reconsideration.

         II.   Whether the [PCRA] court erred in not granting relief
               on the PCRA petition alleging trial counsel was
               ineffective for not filing a direct appeal.

See Jordan’s Brief at 3.

      Our scope and standard of review is well-settled:

        In PCRA appeals, our scope of review is limited to the findings
        of the PCRA court and the evidence on the record of the PCRA
        court's hearing, viewed in the light most favorable to the
        prevailing party.   Because most PCRA appeals involve
        questions of fact and law, we employ a mixed standard of
        review. We defer to the PCRA court's factual findings and
        credibility determinations supported by the record. In
        contrast, we review the PCRA court's legal conclusions de
        novo.


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Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(internal citations and quotations omitted).

      To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable strategic

basis for his or her action or inaction; and (3) petitioner was prejudiced by

counsel's act or omission. Id. at 533. A finding of "prejudice" requires the

petitioner to show "that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different."

Id. In assessing a claim of ineffectiveness, when it is clear that the petitioner

has failed to meet the prejudice prong, the court may dispose of the claim on

that basis alone, without a determination of whether the first two prongs have

been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

Counsel cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).




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      Jordan claims that he is entitled to the reinstatement of his direct appeal

rights because trial counsel failed to file a motion to reconsider his sentence

and a direct appeal, even though he requested him to do so.

      In his first issue, Jordan asserts that trial counsel was ineffective for

failing to file a motion for reconsideration of his sentence. He then presents

his entire argument as follows:

            [Jordan’s claim of trial counsel’s] ineffectiveness is of
         arguable merit. [Jordan] told his attorney on the day he
         was sentenced that he wanted him to put in a motion for
         reconsideration of sentence.     His girlfriend also asked
         counsel to do so. To insure that it happened, [Jordan] filed
         for reconsideration pro se. [Jordan] then found out later
         that [counsel’s motion was not] was put in.

            Counsel’s failure to file a motion to reconsider the
         sentence is clearly ineffective assistance of counsel. For
         starters, counsel’s failure to file a motion to reconsider
         [Jordan’s] sentence is of arguable merit.                   In
         Commonwealth v. Eby, 784 A.2d 204 (Pa. Super. 2001)
         the Court noted that, “unless the particular facts of the case
         in question are distinguishable from the typical case of that
         same offense, a sentence within the standard range would
         be called for.” [Id. at 208-09]. Counsel’s failure to file a
         motion to reconsider is of arguable merit as the
         probationary aspect of the sentence clearly was outside of
         such guidelines.

            Secondly, there was no “reasonable basis” for counsel
         not to file a motion to reconsider [Jordan’s] sentence. No
         valid reasonable basis was offered by the Commonwealth or
         the PCRA Court for this and the Commonwealth neglected
         to call Trial Counsel in to testify or rebut [Jordan’s]
         contentions at the evidentiary hearing.

            Finally, [Jordan] suffered actual prejudice as a result of
         counsel’s failure to file a motion to reconsider [his]
         sentence. He cannot appeal the sentence to the appellate
         court since no reconsideration of sentence was filed.
         Because counsel failed to file the Motion as requested, no

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         appeal was filed by counsel.      Had [counsel] filed the
         Reconsideration Motion as requested, he would have known
         to file an appeal as [Jordan] asked him if the Motion was
         denied.

Jordan’s Brief at 17.

      At the January 13, 2017 PCRA hearing, Jordan was the only witness to

testify. Although trial counsel, at the time of the hearing, was working in

another courtroom, Jordan did not call him to testify. After hearing Jordan’s

direct testimony, as well as the Commonwealth’s cross-examination of him,

the PCRA court determined that Jordan could not establish “actual prejudice.”

The court explained:

         It is clear from the record that [Jordan] has failed to meet
         the third prong of the [ineffectiveness] test, that is, he failed
         to establish that there is a reasonable probability that the
         act or omission prejudiced [Jordan] in such a way that the
         outcome of the proceeding would have been different.”
         Prior to accepting his plea, Judge Wogan, after reviewing
         the charges against him, noted for the record that [Jordan]
         was facing 119 ½ to 239 years, relating only to those
         charges to which he was pleading guilty. After an extensive
         guilty plea colloquy, Judge Wogan reviewed [Jordan’s] pre-
         sentence report, mental health report, argument of counsel
         and heard the testimony of both [Jordan] and his mother.
         Prior to imposing sentence, Judge Wogan stated for the
         record; “My reasons for giving a way below guideline
         sentence, which you will hear this again from me throughout
         this hearing, is that you’ve pled guilty and accepted
         responsibility, which are mitigating factors, and you
         appeared to be sincere today in saying that you were sorry
         and apologizing to the victims. Although, unfortunately,
         they won’t hear that.” The Commonwealth was seeking an
         aggregate sentence of 12 ½ to 25 years. However, as
         noted, Judge Wogan ultimately imposed a significantly
         reduced sentence of 9 to 35 years of incarceration followed
         by 27 years of probation.


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            Furthermore, [Jordan] concedes that the only relief he
         was seeking was a review of his sentence resulting in an
         adjustment of his [probationary sentences] to run
         concurrently as opposed to consecutively. This is clearly
         contrary to Judge Wogan’s expressed intent at sentencing.

             As it is clear on the record that [Jordan’s] complaint is
         without merit, there was no reason for the Court to receive
         trial counsel’s testimony, as it was rendered moot. After a
         careful review of the record and given the vicious nature of
         [Jordan’s] crimes, the Court concludes that there is no
         reasonable probability the outcome of counseled post-
         [sentence] motions would have been different had trial
         counsel filed such motions seeking reconsideration of
         [Jordan’s] sentence.

PCRA Court Opinion, 9/21/17, at 5-6. We agree.

      Jordan’s bare assertion that he suffered “actual prejudice” because his

sentencing claim would not be preserved on appeal is unavailing. In Reaves,

923 A.2d 1119 (Pa. 2007), our Supreme Court addressed whether a PCRA

petitioner whose counsel failed to file a motion to reconsider sentence suffered

prejudice. The Superior Court had “summarily concluded” that prejudice was

presumed because counsel’s inaction “effectively waived [Reaves’] right to

challenge this issue on appeal.” Reaves, 923 A.2d at 1123 (citing Reaves,

3190 EDA 2003, unpublished memorandum at 4-5).

      Our Supreme Court disagreed.       Instead, the Court held that a PCRA

petitioner raising a claim of ineffectiveness regarding counsel’s failure to file

a motion for reconsideration must establish actual prejudice. See Reaves,

923 A.2d at 1130. Specifically, the Court held that a PCRA petitioner must

show that filing the motion would have led to a more favorable sentence:




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         The Commonwealth argues that the Superior Court’s
         prejudice analysis misses the mark because the panel
         improperly focused on the effect of counsel’s inaction upon
         the [appeal], rather than looking to the outcome of the
         underlying [proceeding] itself.     The Commonwealth is
         correct. Although contemporaneous objections operate to
         preserve issues for appellate review, they serve an equally
         important function in obviating appeals by affording the
         trial court a timely opportunity to correct mistakes and/or
         to reconsider decisions. Whether [counsel] can be deemed
         ineffective, then, depends upon whether [a defendant] has
         proven that a motion to reconsider sentence if filed . . .
         would have led to a different and more favorable outcome
         at [sentencing].     In this context, the only way the
         proceeding would have been more favorable would be if
         counsel’s objection secured a reduction in the sentence. The
         Superior Court panel erred as a matter of law in failing to
         appreciate the actual focus of the [actual] prejudice
         standard.

Reaves, 923 A.2d at 1131-32 (emphasis in original; footnote omitted). Our

Supreme further concluded that Reaves did not establish actual prejudice,

since “[on] this record, there is no reason to believe that, if only counsel had

asked for a statement of reasons for the sentence at the [time of sentencing]

that statement or explanation alone would have led the court to reduce the

sentence”). Id. at 1132.

      Here, we agree with the PCRA court that Jordan failed to establish actual

prejudice.   Our Supreme Court in Reaves rejected a petitioner’s claim of

actual prejudice based merely upon counsel’s failure to preserve an appellate

issue. Moreover, although Jordan included a Pa.R.A.P. 2119(f) statement in

his brief regarding the discretionary aspects of his sentence, in his

accompanying argument, Jordan does not develop the claim beyond his bare



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assertion that the probationary sentence he received on some of the charges

fell outside the sentencing guidelines. Compare Reaves, 923 A.2d at 1132-

33 (remanding so that this Court may address additional claims of ineffective

assistance Reaves raised involving the discretionary aspects of the sentence

imposed).      Jordan has provided no basis to disturb the PCRA court’s

determination that a motion for sentence reconsideration would have resulted

in a reduced sentence.1 Given these circumstances, the PCRA court did not

err in dismissing Jordan’s first ineffectiveness claim.

       We next address Jordan’s second claim that trial counsel was ineffective

for failing to file his appeal. As this Court has summarized:

              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. Lantzy, 558
          Pa. 214, 736 A.2d 564 (1999). In Lantzy, our Supreme
          Court held that an unjustified failure to file a direct appeal
          upon request is prejudice per se, and if the remaining
          requirements are satisfied, a defendant does not have to
          demonstrate his innocence or the merits of the issue he
          would have pursued on appeal to be entitled to relief.
          However, such relief is only appropriate where the petitioner
          plead and proves that a timely appeal was in fact requested
          and that counsel ignored that request. Commonwealth v.
          Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999). A mere
          allegation will not suffice to prove that counsel ignored a
          petitioner’s request to file an appeal.

____________________________________________


1 Jordan’s bare assertions within his Rule 2119(f) statement that the trial court
“imposed a sentence that was so manifestly excessive as to constitute to
severe a punishment” and that the trial court “did not properly take into
account the rehabilitative needs of [Jordan]” does not alter our conclusion.
See Jordan’s Brief at 14.


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Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006).

      In support of this claim, Jordan contends that his testimony that he

requested that trial counsel file an appeal was uncontested. See Jordan’s

Brief at 19. We disagree. Our review of the record reveals that, upon direct

examination, Jordan conceded that, after he was sentenced and informed of

his post-sentence rights, he informed the court that he did not want to file an

appeal. See N.T., 1/13/17, at 12-13.         Upon cross-examination, Jordan

acknowledged his statement at sentencing several times. See id., at 17-26.

      Moreover, although Jordan faults the Commonwealth for failing to

present trial counsel’s testimony, it is well settled that this burden falls upon

Jordan. See Commonwealth v. Jones, 596 A.2d 885 (Pa. Super. 1991)

(explaining that a PCRA petitioner must produce trial counsel at a PCRA

evidentiary hearing to meet his burden of proof).

      Finally,   because   Jordan   acknowledged    his   prior   statements   at

sentencing, the PCRA court itself determined that trial counsel’s testimony

was not needed. See N.T., 1/13/17, at 26 (stating, “I don’t know if we have

to hear from [trial counsel] if [Jordan] says he never asked him to file an

appeal”).   Given the denial of post-conviction relief, the PCRA court found

Jordan’s prior statements to be credible. Although Jordan testified that he

“didn’t know what was really going on,” and that he was “in a state of shock

during that moment,” when he made these statements at sentencing, we

cannot disturb this credibility determination. This Court “must defer to the

credibility determinations made by the [PCRA] court that observed a witness’s

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demeanor first hand.” Commonwealth v. Todd, 820 A.2d 707, 712 (Pa.

Super. 2003); see also Commonwealth v. Harmon, 738 A.2d 1023, 1025

(Pa. Super. 1999) (explaining that when a PCRA court’s credibility

determination is supported by the record, it cannot be disturbed on appeal).

      In sum, the PCRA court correctly determined that Jordan did not

establish either of his claims of trial counsel’s ineffectiveness, and the PCRA

court properly dismissed his amended PCRA petition. We therefore affirm the

PCRA court’s order denying post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/18




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