Com. v. Anglade, L. ( 2015 )

J-S50020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEONARD GEORDLEY ANGLADE
Appellant No. 3482 EDA 2014
Appeal from the PCRA Order November 13, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000103-2012
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 10, 2015
Appellant, Leonard Geordley Anglade, appeals from the November 13,
2014 order denying his amended petition filed pursuant to the Post
Conviction Relief Act, (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm.
The trial court summarized the procedural history of this case as
follows.
On September 30, 2011, [Appellant] was arrested
and charged with: Rape by Forcible Compulsion
(“Rape”) (18 Pa.C.S.A. § 3121(a)(1)); Involuntary
Deviate Sexual Intercourse by Forcible Compulsion
(“IDSI”) (18 Pa.C.S.A. § 3123(a)(1)); Aggravated
Indecent Assault (18 Pa.C.S.A. § 3125(a)(1), (4));
Indecent Assault (18 Pa.C.S.A. § 3126(a)(1), (2),
(4)); Burglary (18 Pa.C.S.A. § 3502(a)); Criminal
Trespass (18 Pa.C.S.A. § 3503(a)(1)(i)); and Sexual
Assault (18 Pa.C.S.A. § 3124.1). [Appellant] pled
guilty to all charges on January 17, 2012. However,
J-S50020-15
on [July 30, 2012], [Appellant] withdrew his guilty
plea and proceeded to trial. The Commonwealth
withdrew all but five charges: Rape, IDSI,
Aggravated Indecent Assault, Criminal Trespass, and
Sexual Assault.
A jury trial began on November 26, 2012, with
the Honorable Ronald C. Nagle presiding. Private
counsel, Scott Lawrence Kramer, Esq., represented
[Appellant] at trial. After three days of hearing
evidence and argument, the jury found [Appellant]
guilty of Rape, IDSI, Criminal Trespass, and Sexual
Assault. The jury found [Appellant] not guilty of
Aggravated indecent Assault.
On February 15, 2013, Judge Nagle sentenced
[Appellant] to a term of 58 to 116 months of
incarceration on the Rape [] and a term of 2 to 4
years of incarceration on the Criminal Trespass [] to
run concurrent to the Rape sentence. On February
21, 2013, Mr. Kramer filed a Motion for Post-
Sentence Relief pursuant to Pa.R.Crim.P. 720(B). On
February 26, 2013, the trial court scheduled a
hearing. However, before the hearing took place,
[Appellant’s] counsel, Mr. Kramer, filed a request to
withdraw [Appellant’s] Motion for Post-Sentence
Relief, which was granted by Judge Nagle on May 10,
2013.
Thereafter, [Appellant] sought legal
representation through the Chester County Public
Defender’s Office. On June 7, 2013, an Appeal to
the Superior Court was filed by Mr. Nathan
Schenker, Esq. and on June 10, 2013, Judge Nagle
filed a Rule 1925(b) Order. On June 13, 2013, Mr.
Schenker requested an extension to file his
Statement of Errors Complained of on Appeal. This
request was granted.
On June 20, 2013, Stewart C. Paintin, Esquire,
also a Public Defender, entered his appearance for
[Appellant] and on July 29, 2013, Mr. Paintin filed a
-2-
J-S50020-15
Statement of Intent to File an Anders/McClendon[1]
Brief pursuant to Pa.R.A.P. 1925(c)(4). On October
17, 2013, Mr. Paintin filed a Praecipe to Withdraw
the Appeal with the Superior Court.
On June 4, 2014, [Appellant] filed a pro se
P.C.R.A. Petition. We appointed legal counsel on
June 5, 2014 pursuant to Pa.R.Crim.P. 904(C). On
August 26, 2014, P.C.R.A. counsel filed an Amended
P.C.R.A. Petition claiming [Appellant’s] appellate
counsel, Stewart C. Paintin, Esq., provided
ineffective assistance of counsel when he withdrew
[Appellant’s] direct appeal to the Superior Court
without [Appellant’s] knowledge or consent. In his
Amended P.C.R.A. Petition, [Appellant] requested the
reinstatement of his direct appeal rights nunc pro
tunc.
On October 22, 2014, [the PCRA court] held an
evidentiary hearing on [Appellant’s] Amended
P.C.R.A Petition. [The PCRA court] denied
[Appellant’s] Amended P.C.R.A. Petition and stated
[its] findings of fact and reasoning in open court at
the conclusion of the October 22, 2014 hearing. On
November 13, 2014, [the PCRA court] filed an Order
denying [Appellant] his requested relief ….
Trial Court Opinion, 1/28/15, at 1-3 (footnote omitted). Appellant filed a
timely notice of appeal on December 5, 2014.2
On appeal, Appellant raises the following issue for our review.
Whether trial counsel was ineffective for
discontinuing Appellant’s appeal without authority or
permission to do so after an appeal had been filed in
____________________________________________
1
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
-3-
J-S50020-15
the Superior Court of Pennsylvania on behalf of
Appellant?
Appellant’s Brief at 4.
We address this issue according to the following standards.
Our standard of review of the denial of a PCRA
petition is limited to examining whether the court’s
rulings are supported by the evidence of record and
free of legal error. This Court treats the findings of
the PCRA court with deference if the record supports
those findings. It is an appellant’s burden to
persuade this Court that the PCRA court erred and
that relief is due.
Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)
(citation omitted).
[Our] scope of review is limited to the findings of the
PCRA court and the evidence of record, viewed in the
light most favorable to the prevailing party at the
PCRA court level. The PCRA court’s credibility
determinations, when supported by the record, are
binding on this Court. However, this Court applies a
de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)
(en banc) (internal quotation marks and citations omitted), appeal granted,
105 A.3d 658 (Pa. 2014). Additionally, in order to be eligible for PCRA relief,
a petitioner must plead and prove by a preponderance of the evidence that
his conviction or sentence arose from one or more of the errors listed at 42
Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated
nor waived. Id. at § 9543(a)(3).
-4-
J-S50020-15
When reviewing a claim of ineffective assistance of counsel, we apply
the following test, first articulated by our Supreme Court in Commonwealth
v. Pierce, 527 A.2d 973 (Pa. 1987).
When considering such a claim, courts
presume that counsel was effective, and place upon
the appellant the burden of proving otherwise.
Counsel cannot be found ineffective for failure to
assert a baseless claim.
To succeed on a claim that counsel was
ineffective, Appellant must demonstrate that: (1) the
claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or
inaction; and (3) counsel’s ineffectiveness prejudiced
him.
…
[T]o demonstrate prejudice, appellant must
show there is a reasonable probability that, but for
counsel’s error, the outcome of the proceeding would
have been different.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal
quotation marks and citations omitted). “Failure to establish any prong of
the test will defeat an ineffectiveness claim.” Commonwealth v.
Birdsong, 24 A.3d 319, 330 (Pa. 2011).
Instantly, Appellant argues that his direct appeal counsel was
ineffective for withdrawing Appellant’s direct appeal before this Court
without Appellant’s permission. Appellant’s Brief at 6. Appellant insists
direct appeal counsel should have followed the dictates of Anders, by
seeking to withdraw if he believed there were no non-frivolous issues to
-5-
J-S50020-15
appeal. Id. at 7. Appellant maintains that by withdrawing the appeal,
counsel deprived him of his absolute right to a direct appeal of his judgment
of sentence. Id. Accordingly, Appellant concludes the PCRA court erred by
failing to grant him leave to file a direct appeal nunc pro tunc. Id. We
disagree.
Appellant acknowledges that “[t]estimony at the [PCRA] hearing was
conflicting in that Appellant testified that he did not give his permission for
the appeal to be withdrawn[,] while [A]ttorney Paintin said that Appellant
did give permission to withdraw the appeal.” Id. at 6-7 (citations omitted).
Based on the testimony, the PCRA court made the following specific findings.
At the evidentiary hearing held on October 22,
2014, [Appellant] and Stewart Paintin, Esq. testified.
We make the following findings of fact pursuant to
their testimony.
1. Stewart Paintin, Esq. has been with the
Chester County Public Defender’s Office for 25 years.
Mr. Paintin represented [Appellant] during the
appellate process only.
2. An Appeal to the Superior Court was filed
on June 7, 2013.
3. After June 2013, Mr. Paintin reviewed the
trial court record.
4. On October 11, 2013, Mr. Paintin
telephoned [Appellant] and informed [Appellant] that
it was his legal opinion that trial counsel failed to
preserve any meritorious issues for appeal. During
the 30 minute phone call, Mr. Paintin explained to
[Appellant] that the best avenue for relief was to
withdraw the Appeal and to file a PCRA Petition.
-6-
J-S50020-15
5. During the October 11, 2013 phone call,
[Appellant] gave consent to Mr. Paintin to withdraw
the Appeal.
6. On October 17, 2013, Mr. Paintin filed a
Praecipe to Withdraw the Appeal with the Superior
Court.
7. Mr. Paintin never met [Appellant] face-to-
face.
8. On October 20, 2013, [Appellant] wrote to
Mr. Paintin and acknowledged his consent to the
withdrawal of his Appeal. [Appellant] also set forth
his desire to pursue relief through a P.C.R.A.
Petition.
9. We find Mr. Paintin credible in his testimony
that he discussed withdrawing the Appeal and filing a
P.C.R.A. Petition with [Appellant].
10. We find Mr. Paintin credible in his
testimony that [Appellant] gave consent to withdraw
the Appeal.
11. We do not find [Appellant] credible in his
testimony that he did not give his consent to have
the Appeal withdrawn as this testimony is
contradicted by [Appellant’s] own statements in his
October 20, 2013 letter.
Trial Court Opinion, 1/28/15, at 14-15 (citations omitted).
Our careful scrutiny of the record confirms the trial court’s findings are
amply supported. As noted above, “[t]he PCRA court’s credibility
determinations, when supported by the record, are binding on this Court.”
Medina, supra. Appellant’s claim that his direct appeal counsel bypassed
the strictures of Anders by filing a praecipe to withdraw Appellant’s direct
appeal without his consent, lacks a factual foundation. As determined by the
-7-
J-S50020-15
PCRA court, Appellant concurred in the decision to withdraw his direct appeal
in order to pursue PCRA relief. See N.T., 10/22/14, at 11, 20 Ex. C-2 (letter
dated October 30, 2013, from Appellant to direct appeal counsel,
acknowledging withdrawal of the direct appeal and addressing issues to
include in a PCRA petition).
Based on the foregoing, we conclude Appellant has failed to present a
claim of arguable merit to establish his direct appeal counsel was ineffective.
Appellant having failed to meet this prong of the Pierce test, we discern no
abuse of discretion or error of law by the PCRA court in denying Appellant’s
amended PCRA petition. See Birdsong, supra. Accordingly, we affirm the
PCRA court’s November 13, 2014 order denying Appellant’s amended PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2015
-8-