Com. v. Franco, C. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHARLIE FRANCO :
:
Appellant : No. 1381 EDA 2021
Appeal from the PCRA Order Entered June 8, 2021
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007063-2018
BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.
MEMORANDUM BY BOWES, J.: FILED MAY 13, 2022
Charlie Franco appeals from the order that denied his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
Appellant entered open guilty pleas to various offenses, including three
counts of corrupt organizations, after he and multiple co-conspirators
committed armed robbery of a car dealership and attempted kidnapping of
the business’s owner. Following a presentence investigation, Appellant was
sentenced on September 18, 2019, to an aggregate term of 189 to 378
months of incarceration. The trial court denied Appellant’s timely post-
sentence motion on July 7, 2020. Appellant filed no direct appeal.
On September 21, 2020, Appellant, though counsel, filed a timely PCRA
petition. Therein he alleged that he wanted to file a direct appeal but had
been unable to communicate that desire “because of both the pandemic and
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[Appellant] being unable to communicate his intention to trial counsel.” PCRA
Petition, 9/21/20, at ¶ 9. Therefore, he requested that the PCRA court
reinstate his rights to appeal from his judgment of sentence. The petition also
indicated that counsel would amend the petition “once the discovery and other
records are obtained.” Id. at 11. However, no amended petition followed.
The trial court held an evidentiary hearing on the petition by video
conference on June 8, 2021. The only witness to testify was Appellant.
Appellant indicated that his initial counsel had reached an agreement with the
prosecution that, if Appellant waived the preliminary hearing, the corrupt
organizations charges “would be dropped and would not be bring up unless I
go to trial, unless I take it to trial.” N.T. PCRA Hearing, 6/8/21, at 5. Appellant
had different counsel at the time he entered his guilty plea. Appellant asserted
that, although he informed plea counsel that the corrupt organizations counts
had been dropped, counsel told him not to worry about it because it was not
the lead charge and would not affect his overall sentence. Id. at 6. Appellant
stated that he was unaware that corrupt organizations was graded as a felony
of the first degree and would have been concerned that pleading to a first-
degree felony because he “would think it would be more time added on to it”
and could end up as consecutive sentences. Id. at 7. He opted to plead guilty
to the supposedly-dismissed charges nonetheless based upon his counsel’s
advice. Id. at 8. Appellant did not offer any testimony concerning his desire
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to appeal the sentence or his efforts to communicate such a desire to plea
counsel. Nor did he call plea counsel to offer testimony as to any subject.
The Commonwealth objected to the fact that the PCRA petition alleged
only the claim about the alleged inability to inform counsel that he wanted to
appeal, and nothing about the purported deal about dismissing charges in
exchange for waiving the preliminary hearing. Id. at 8-9. It nonetheless
addressed the latter issue, arguing that it failed because a PCRA petitioner
must establish that counsel lacked a reasonable basis for his act or omission,
a burden that cannot be met without the testimony of the attorney in question.
Id. at 10-11. Appellant’s PCRA counsel countered with the contention that
plea counsel’s “negligence is clear” merely “from a plain reading of the
docket.” Id. at 11.
The PCRA court asked if Appellant was still seeking reinstatement of his
direct appeal rights, and he indicated the affirmative. In response to the PCRA
court’s observation that Appellant offered no evidence regarding that claim,
Appellant, through counsel, stated: “Well, Your Honor, again, we've
referenced the docket, and there was no direct appeal filed, and that was
where we reference the issue as far as the difficulties in communication with
trial counsel in terms of getting the direct appeal filed, the notice of appeal
timely filed.” Id. at 12. The trial court took the matter under advisement,
then later that day issued an order denying Appellant’s PCRA petition.
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Appellant filed a timely notice of appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925. Specifically, Appellant contended
in his Rule 1925(b) statement that “[Appellant] contends the court erred in its
denial of the PCRA [p]etition to reinstate his rights on direct appeal.”
Statement of Matters Complained of pursuant to 1925(b), 7/26/21, at ¶ 9.
Appellant presents the following question to this Court: “Did the trial court
err in denying the Appellant relief under the Post-Conviction Relief Act?”
Appellant’s brief at 7.
We begin our review with an examination of the governing legal
authority. The standard of review of an order dismissing a PCRA petition is
whether that determination is supported by the evidence of record and is free
of legal error.” Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa.Super.
2019) (cleaned up). “We grant great deference to the PCRA court’s findings
that are supported in the record and will not disturb them unless they have
no support in the certified record.” Commonwealth v. Mojica, 242 A.3d
949, 953 (Pa.Super. 2020) (cleaned up). Likewise, “a PCRA court's credibility
determinations are binding upon an appellate court so long as they are
supported by the record.” Commonwealth v. Robinson, 82 A.3d 998, 1013
(Pa. 2013). Additionally, “[i]t is an appellant’s burden to persuade us that the
PCRA court erred and that relief is due.” Commonwealth v. Stansbury, 219
A.3d 157, 161 (Pa.Super. 2019) (cleaned up).
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It is well-settled that “[a] criminal defendant has the right to effective
counsel during a plea process as well as during trial.” Commonwealth v.
Rathfon, 899 A.2d 365, 369 (Pa.Super. 2006) (cleaned up). However,
following the entry of a guilty plea, “a claim of ineffectiveness may provide
relief only if the alleged ineffectiveness caused an involuntary or unknowing
plea.” Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa.Super. 2017).
In order for Appellant to prevail on a claim of ineffective assistance
of counsel, he must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken
place. Appellant must demonstrate: (1) the underlying claim is of
arguable merit; (2) that counsel had no reasonable strategic basis
for his or her action or inaction; 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. The
petitioner bears the burden of proving all three prongs of the test.
Id. at 1280-81 (cleaned up).
An exception to this general rule regarding a PCRA petitioner’s burden
of proof exists when counsel fails to file a requested direct appeal. In such
instances, a petitioner need only prove that he requested an appeal and
counsel failed to file it, which constitutes ineffectiveness per se. See, e.g.,
Mojica, supra at 955. A failure of counsel to consult with a defendant about
filing an appeal, on the other hand, requires a PCRA petitioner to establish
that counsel had a duty to consult with him and that, but for counsel’s breach
of that duty, he would have timely appealed. See Commonwealth v. Touw,
781 A.2d 1250, 1254 (Pa.Super. 2001).
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With these principles in mind, we turn to Appellant’s argument.
Appellant’s brief consists mostly of boilerplate case law. The only fact-specific
argument he offers is as follows:
At sentencing, but for argument there was no evidence or
witnesses presented by trial counsel. Other than argument,
nothing further was advanced by the defense. The docket
indicates post sentence motions were filed and denied without
hearing.
At the video hearing, Appellant testified regarding his
understanding of what happened at the preliminary hearing. At
sentencing the issue was not raised by trial counsel. At the
evidentiary hearing on the PCRA, Appellant testified with
specificity and detail that the charge of [c]orrupt [o]rganizations
was to be withdrawn in return for a guilty plea, only if Appellant
did not go to trial. This recollection is logically consistent.
Appellant received neither bail or charge reduction in return for
his waiver.
Appellant being sentenced on [c]orrupt [o]rganizations is a
matter that needs to be developed at the trial level through the
motion for reconsideration of sentence so that the matter could
be reviewed on direct appeal. There was never a hearing on the
post sentence motion which based, on the minimalist motion, is
not surprising.
The failure to introduce ANY evidence at sentencing is the
second level of ineffectiveness that needs to be developed. These
are both matters that need to be developed for an appropriate
review on direct appeal.
Appellant’s brief at 13-14.
To the extent that Appellant seeks our review of the claim concerning
the absence of a direct appeal, which is the only issue that was raised in his
PCRA petition and his Rule 1925(b) statement, we affirm the denial of PCRA
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relief on the basis of the PCRA court opinion. Specifically, the PCRA court
explained:
Although a failure to file a requested direct appeal would
constitute prejudice per se, [Appellant] failed to plead and prove
that a timely appeal was requested and that plea counsel ignored
this request. The only information offered by [Appellant]
regarding the difficulties underlying his request to file a direct
appeal were vague allegations contained in the PCRA petition and
PCRA counsel's ambiguous statements offered during the PCRA
evidentiary hearing. The absence of testimony from both
[Appellant] and plea counsel with respect to this issue causes
[Appellant]’s claim to amount to nothing more than a mere
allegation or bare assertion which is not sufficient to prove that
plea counsel either was unable to receive or ignored Defendant's
request to file a direct appeal.
Accordingly, plea counsel cannot be deemed ineffective on
these grounds and [Appellant’s] first issue merits no relief.
PCRA Court Opinion, 9/20/21, at 7-8 (cleaned up)
To the extent that Appellant persists with his unpled claim about the
supposed preliminary hearing agreement, no relief is due on the alternate
bases that the claim was waived for failure to include it in Appellant’s Rule
1925(b) statement and is meritless because the PCRA court found Appellant’s
evidence to be insufficient and incredible. See Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”); PCRA Court Opinion,
9/20/21, at 8-10 (finding Appellant’s claim that there was an agreement
incredible, observing that he failed to offer plea counsel’s testimony to
establish the basis for counsel’s alleged inactions, and citing authority for the
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proposition that no valid agreement could have existed without court
approval).
Finally, to the extent that Appellant is raising new issues in his brief that
were neither presented to the PCRA court nor included in his Rule 1925(b)
statement, such as assertions concerning counsel’s performance in connection
with the sentencing hearing and post-sentence motion, those claims are
waived and cannot serve as a basis for relief. See Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.”); Pa.R.A.P. 1925(b)(4)(vii).
For the above reasons, we conclude that Appellant has provided us no
cause to disturb the order denying Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2022
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