J-S77015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GREGORY STEVEN RIVERA-MOREL,

                            Appellant                 No. 421 MDA 2016


             Appeal from the PCRA Order entered January 12, 2016
                In the Court of Common Pleas of Dauphin County
              Criminal Division, at No(s): CP-22-CR-0002952-2013
                                           CP-22-CR-0003366-212
                                           CP-22-CR-0006033-2013


BEFORE: PANELLA, J., OLSON, J., PLATT, J.

MEMORANDUM BY PANELLA, J.                       FILED NOVEMBER 22, 2016

        Gregory Steven Rivera-Morel (“Appellant”) appeals from the order

denying his first petition for relief filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The pertinent facts and procedural history are as follows. On March 10,

2014, Appellant entered a negotiated guilty plea at three separate dockets

to various charges including robbery, simple assault, a firearm violation, and

intimidation of a witness. On June 25, 2014, the trial court sentenced

Appellant, in accordance with the plea agreement, to an aggregate term of



____________________________________________



    Retired Senior Judge assigned to the Superior Court.
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seven to fourteen years of imprisonment. Appellant filed neither a post-

sentence motion nor a direct appeal.

      On March 23, 2015, Appellant filed a timely pro se PCRA. The PCRA

court appointed counsel and PCRA counsel later filed a supplemental PCRA

petition requesting the reinstatement of Appellant’s direct appeal rights nunc

pro tunc. The PCRA court held an evidentiary hearing. Appellant presented

his own testimony and rebuttal testimony from his mother. Appellant’s trial

counsel also testified. At the conclusion of the hearing, the PCRA court took

the matter under advisement. The PCRA court ultimately dismissed

Appellant’s PCRA petition. This timely appeal follows.

      Appellant raises one issue for our review: “Whether [trial] counsel

provided deficient performance when counsel failed to file a Notice of Appeal,

even though Appellant plead guilty, effectively denying Appellant his

Constitutional right to direct appeal.” Appellant’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.

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

2015) (internal citations and quotations omitted).




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      It is well settled that

      [t]o plead and prove ineffective assistance of counsel a
      petitioner must establish: (1) that the underlying issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) actual prejudice resulted from
      counsel's act or failure to act.

Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012)

(citation omitted).

      Appellant claims that he is entitled to the reinstatement of his direct

appeal rights because he twice asked trial counsel to file an appeal, but was

told that, by entering a negotiated guilty plea, he forfeited his appellate

rights. 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.

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

      In the present case, the PCRA court heard the testimony from

Appellant and his mother in support of his claim that he timely requested

trial counsel to file appeal and that trial counsel told him he forfeited his

right to do so because he entered a negotiated guilty plea. Conversely, trial



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counsel testified that Appellant never made such a request and that she

never told him he forfeited his appellate rights by pleading guilty. The PCRA

court resolved this matter of credibility against Appellant:

             This [c]ourt finds that [Appellant’s] veracity is in question
      in light of his admission that he failed to read his guilty plea
      colloquy and failed to question counsel or the court on any
      matters he did not understand. It is quite clear from the record
      that his appeal rights were presented to him orally by [trial
      counsel] prior to and during his court appearance to plead guilty
      and in the written plea colloquy. Further, this [c]ourt finds [trial
      counsel’s] testimony credible that she discharged her duty to
      inform [Appellant] of his appeal rights on multiple occasions but
      he failed to request that an appeal be filed. Furthermore, had
      [Appellant] forgotten to make such a request during his
      sentencing hearing, [trial counsel] followed up with a letter
      outlining his rights and met with his mother on more than one
      occasion which presented additional opportunities during which
      he could have sent a message to counsel regarding his desire [to
      file an appeal].

            In conclusion, this [c]ourt finds that [Appellant’s] claim of
      ineffective assistance of counsel is without merit. Trial counsel
      did not fail to file a direct appeal; rather, the evidence shows
      that [Appellant] did not request that counsel take such action.
      Therefore, the instant Petition should be dismissed.

PCRA Court’s Opinion 1/12/16, at 5-6.

      There is record support for the PCRA court’s credibility determinations.

Where there is such support, “we, as a reviewing court, are bound by those

determinations.” Commonwealth v. Abu-Jamal, 720 A.2d 70, (Pa. Super.

1998) (citation omitted). See also Reyes-Rodriguez, 111 A.3d at 779;

Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999).




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2016




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