Com. v. Vasquez, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOEL VASQUEZ
Appellant No. 2004 EDA 2014
Appeal from the PCRA Order June 20, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003099-2012
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED APRIL 08, 2015
Appellant Joel Vasquez appeals from the order entered in the Lehigh
County Court of Common Pleas, which dismissed his petition seeking relief
pursuant to the Post Conviction Relief Act (“PCRA”).1 For the reasons that
follow, we reverse the order of the PCRA court and reinstate Appellant’s
appeal rights nunc pro tunc.
The PCRA court summarized the relevant procedural history of this
appeal as follows:
On January 18, 2013, [Appellant] entered a negotiated
guilty plea to two counts of aggravated assault (18
[Pa.C.S.] §2702(a)(4) and §2702(a)1)) and one count of
recklessly endangering another person (18 [Pa.C.S.]
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*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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§2705).[2] In exchange, the Commonwealth agreed to
bind the court to a standard range sentence. On February
19, 2013, [Appellant] was sentenced to serve an
aggregate sentence of no less than 70 months nor more
than 30 years of incarceration. At the time, [Appellant]
was represented by Earl Supplee, Esquire of the Office of
the Public Defender of Lehigh County.
On March 1, 2013, [Appellant] filed a pro se motion to
modify and reduce sentence. Said motion was denied by
this court on March 5, 2013.[3]
On October 15, 2013, [Appellant] wrote a letter to this
court, which the court considered a motion to file appeal
nunc pro tunc. On the same day, the court denied the
motion.
On November 4, 2013, [Appellant] filed a pro se [PCRA
petition]. On November 5, 2013, Charles Banta, Esquire
was appointed to represent [Appellant] for purposes of his
PCRA petition and was ordered to file an amended PCRA
petition. An Amended PCRA Petition was filed on February
25, 2014.
On June 20, 2014, a PCRA hearing was held, with
[Appellant] participating via videoconference while
remaining incarcerated at the State Correctional Institution
at Benner Township. Testimony was taken from
[Appellant] and his trial counsel, Earl Supplee, Esquire and
arguments were made by the Commonwealth and PCRA
Counsel Banta. At the conclusion of the hearing, the court
denied the PCRA Petition.
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2
These charges stem from an incident in which Appellant stabbed two
people and himself. Although Appellant was diagnosed with paranoid
schizophrenia and was not taking his medication at the time of the
stabbings, he elected not to employ an insanity defense. See N.T., 1/18/13,
at 11.
3
The court denied the motion on its merits.
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[Appellant] filed an appeal of the PCRA denial on June 30,
2014 and a statement of matters complained of on appeal
on July 17, 2014.
PCRA Court Opinion, filed September 11, 2014, at 2-3 (unnecessary
capitalization omitted).
Appellant raises the following issue for our review:
WHETHER THE TRIAL COURT ERRED IN FAILING TO FIND
COUNSEL INEFFECTIVE WHEN APPELLANT ESTABLISHED
HE REQUESTED COUNSEL TO FILE AN APPEAL AND
COUNSEL FAILED TO ACT UPON THE REQUEST?
Appellant’s Brief at 5.
Appellant argues his trial counsel was ineffective for failing to consult
with him following sentencing, and for failing to file post-sentence motions
or an appeal when he knew or should have known that Appellant wanted to
appeal his judgment of sentence. Appellant concludes his trial counsel’s
ineffectiveness entitles him to the reinstatement of his appeal rights nunc
pro tunc. We agree.
Our well-settled standard of review for orders denying PCRA relief is
“to determine whether the determination of the PCRA court is supported by
the evidence of record and is free of legal error. The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-192
(Pa.Super.2013) (internal quotations and citations omitted).
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Initially, we note that claims of ineffective assistance of counsel are
cognizable under the PCRA and Appellant’s PCRA petition is timely. See 42
Pa.C.S. §§ 9543(a)(2)(ii), 9545(b).
Generally, this Court follows the Pierce4 test adopted by our Supreme
Court to review claims of ineffective assistance of counsel:
When a petitioner alleges trial counsel’s ineffectiveness in
a PCRA petition, he must prove by a preponderance of the
evidence that his conviction or sentence resulted from
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. We have
interpreted this provision in the PCRA to mean that the
petitioner must show: (1) that his claim of counsel’s
ineffectiveness has merit; (2) that counsel had no
reasonable strategic basis for his action or inaction; and
(3) that the error of counsel prejudiced the petitioner-i.e.,
that there is a reasonable probability that, but for the error
of counsel, the outcome of the proceeding would have
been different. We presume that counsel is effective, and
it is the burden of Appellant to show otherwise.
Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal
denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct 2029,
164 L.Ed.2d 782 (2006) (internal citations and quotations omitted). The
petitioner bears the burden of proving all three prongs of this test.
Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001). “If an
appellant fails to prove by a preponderance of the evidence any of the
Pierce prongs, the Court need not address the remaining prongs of the
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4
Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
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test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009),
appeal denied, 990 A.2d 727 (2010) (citation omitted).
“[In] Roe v. Flores–Ortega, 528 U.S. 470, 120 S.Ct. 1029 [(2000)],
the United States Supreme Court recognized an ineffective assistance of
counsel claim based upon trial counsel’s failure to consult with his client
concerning the client’s right to file a direct appeal from his judgment of
sentence.” Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super.2011).
“This Court applied Roe to a Pennsylvania criminal defendant seeking to
appeal from his judgment of sentence in Commonwealth v. Touw, 781
A.2d 1250 (Pa.Super.2001).” Id. at 682-83.
This Court analyzed ineffective assistance of counsel claims concerning
failure to file appeals as follows:
The Roe Court begins its analysis by noting: “We have
long held that a lawyer who disregards specific instructions
from the defendant to file a notice of appeal acts in a
manner that is professionally unreasonable.” Id. at 477
[120 S.Ct. 1029.] In Commonwealth v. Touw, 781 A.2d
1250 (Pa.Super.2001), this Court concisely summarized
the remainder of the Roe decision as follows:
The [United States Supreme] Court began its
analysis by addressing a separate, but antecedent,
question: “whether counsel in fact consulted with the
defendant about an appeal.” The Court defined
“consult” as “advising the defendant about the
advantages and disadvantages of taking an appeal,
and making a reasonable effort to discover the
defendant’s wishes.” The Court continued[:]
If counsel has not consulted with the
defendant, the court must in turn ask a
second, and subsidiary, question: whether
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counsel’s failure to consult with the defendant
itself constitutes deficient performance. That
question lies at the heart of this case: Under
what circumstances does counsel have an
obligation to consult with the defendant about
an appeal?
[Roe, at 478, 120 S.Ct. 1029]. The Court answered the
question by holding:
[C]ounsel has a constitutionally-imposed duty to
consult with the defendant about an appeal when
there is reason to think either (1) that a rational
defendant would want to appeal (for example,
because there are non-frivolous grounds for appeal),
or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in
appealing. In making this determination, courts
must take into account all the information
counsel knew or should have known.
[Id. at 480, 120 S.Ct. 1029]. A deficient failure on the
part of counsel to consult with the defendant does not
automatically entitle the defendant to reinstatement of his
or her appellate rights; the defendant must show
prejudice. The [Roe] Court held that “to show prejudice in
these circumstances, a defendant must demonstrate that
there is a reasonable probability that, but for counsel’s
deficient failure to consult with him about an appeal, he
would have timely appealed.” [Id.]
Carter, supra. at 683 (2011) (emphasis added).
Instantly, Appellant did not have any discussions with trial counsel
after sentencing. N.T., 6/20/14, at 23. Although Appellant claims he called
counsel and left messages expressing his desire to file post-sentence
motions and an appeal, counsel denies receiving the messages. Id.
However, when counsel received Appellant’s pro se post-sentence motion,
counsel realized that Appellant wanted to file one. Id. The court entered
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Appellant’s judgment of sentence on February 19, 2013. Appellant filed his
pro se post-sentence motion on March 1, 2013. The court denied this
motion on March 5, 2013. Although counsel did not remember the exact
date he received Appellant’s post-sentence motion, he recalled: “When I
received it, it was already after the ten days, and it was denied within a
couple days right after that. I’m not sure if I received the denial almost at
the same time, but we received the denial and that was the end of that
matter.” N.T. at 23-24.
In denying Appellant’s PCRA petition, the court reasoned:
In this case, [Appellant] failed to provide the court with
any testimony or evidence that he contacted Attorney
Supplee regarding an appeal. Absent any indication that
[Appellant] wanted to file an appeal, Attorney Supplee did
not have an obligation to consult with him regarding an
appeal. Counsel only has a duty to consult with his client
about an appeal when counsel has “reason to think either
(1) that a rational defendant would want to appeal…, or
(2) that this particular defendant reasonably demonstrated
to counsel that he was interested in appealing.” [Carter,
supra. at 683].
Attorney Supplee had no reason to think that [Appellant]
would want to appeal his sentence. [Appellant] plead
guilty to lesser counts of the Criminal Information and had
a binding agreement for a standard range sentence. The
court, following the agreement, sentenced [Appellant]
within the standard range. While Attorney Supplee may
have expressed his hope that the sentence would be less,
he made no such promise. When the court abided the
agreement reached between [Appellant] and the
Commonwealth, Attorney Supplee had no reason to
believe that [Appellant] would want to file an appeal.
Accordingly, the Appellant’s claim that counsel was
ineffective for not filing an appeal is meritless.
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Because the Appellant is unable to satisfy the prejudice
prong of the ineffectiveness of counsel prong, we need not
explore the remaining two prongs of the analysis.
PCRA Opinion at 9-10 (unnecessary capitalization omitted).
The PCRA court determined Appellant was unable to satisfy the
prejudice prong of the ineffectiveness of counsel test. To satisfy the
prejudice prong, however, Appellant must only show that there is a
reasonable probability that, but for counsel’s deficient failure to consult with
him about an appeal, he would have timely appealed. See Carter, supra.Further, although the PCRA court stated that “Appellant failed to
provide…any testimony or evidence that he contacted Attorney Supplee
regarding an appeal,” Appellant testified that he called counsel, wrote a
letter to counsel and filed a pro se post-sentence motion. Importantly,
counsel admitted receiving the pro se motion before the expiration of the
appeal period. The court erred by failing to take into account this
information, which should have reasonably demonstrated to counsel that
Appellant wanted to appeal. See Carter, supra.In view of the fact that Appellant never exercised his right to a direct
appeal, the trial court should have granted Appellant leave to file an appeal
nunc pro tunc.
Order reversed and case remanded with instructions that Appellant be
permitted to file a direct appeal nunc pro tunc within thirty (30) days of the
date of this Memorandum.
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Judge Bowes joins in the memorandum.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2015
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