Com. v. Sanchez, E. ( 2015 )

J-S03029-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ENRIQUE MANUEL SANCHEZ A/K/A
ENRIQUE MANUEL ORTIZ
Appellant No. 1819 EDA 2014
Appeal from the PCRA Order June 3, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000885-2012
CP-39-CR-0000886-2012
CP-39-CR-0000890-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 07, 2015
Appellant, Enrique Manuel Sanchez a/k/a Enrique Manuel Ortiz,
appeals from the order entered June 3, 2014, which denied his petition filed
pursuant to the Post-Conviction Relief Act (“PCRA”).1 No relief is due.
On February 11, 2013, Appellant entered a negotiated guilty plea to
Third Degree Murder, Possession of Firearms Prohibited, Firearms Not to be
Carried Without a License, Terroristic Threats (two counts), Recklessly
Endangering Another Person, Possession of a Controlled Substance, and
Simple Assault. Thereafter, the trial court sentenced Appellant pursuant to
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42 Pa.C.S.A. §§ 9541-9546.
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the agreement to an aggregate term of 40 to 80 years’ imprisonment.
Appellant did not file a direct appeal.
On October 24, 2013, Appellant filed a pro se PCRA petition. Counsel
was appointed, and an amended PCRA petition was filed on March 14, 2014,
alleging that trial counsel was ineffective for failing to file a direct appeal.
Following a hearing, at which trial counsel testified that Appellant never
requested a direct appeal, the trial court denied Appellant’s petition. This
timely appeal followed.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,
Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[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.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation
omitted). 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. 42 Pa.C.S.A.
§ 9543(a)(3). “[T]his Court applies a de novo standard of review to the
PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244,
259 (Pa. 2011) (citation omitted).
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Appellant alleges that trial counsel was ineffective for failing to file a
direct appeal as he allegedly requested. We note that the unjustified failure
to file a direct appeal is ineffective assistance of counsel per se and that a
defendant need not demonstrate his innocence or show that he would have
likely succeeded on appeal in order to meet the prejudice prong of the test
for ineffectiveness. See Commonwealth v. Mikell, 968 A.2d 779, 781 (Pa.
Super. 2009). However, before we will find counsel ineffective for failing to
pursue a direct appeal, Appellant bears the burden of proving that he
requested an appeal and that counsel disregarded his request. See
Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super. 2006). A mere
allegation will not suffice to prove that counsel ignored a defendant’s request
to file an appeal. See Commonwealth v. Spencer, 892 A.2d 840, 842
(Pa. Super. 2006).
Appellant contends that he instructed trial counsel to file an appeal at
the conclusion of the sentencing hearing, and that his mother also called
counsel to request an appeal on his behalf. See Appellant’s Brief at 6.
These allegations, however, were contradicted by trial counsel’s testimony
during the PCRA evidentiary hearing, which the PCRA court explicitly
credited. See N.T., PCRA Hearing, 05/12/14 at 20; PCRA Court Opinion,
7/23/14 at 5-6. Trial counsel testified that when he explained to Appellant
his limited appeal rights following the entry of his guilty plea, Appellant
never requested an appeal. See id., at 20. Trial counsel further asserted
that he never received any letter or other communication from Appellant’s
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family indicating a desire to pursue an appeal. See id. at 21. Counsel
explained that had Appellant requested he file a direct appeal, counsel would
have instructed Appellant to hire someone else because he does not
normally handle appellate work. See id. at 23. However, trial counsel was
adamant that he never had that conversation with Appellant because
Appellant never requested counsel file a direct appeal. See id.
Based on counsel’s testimony, as credited by the PCRA court, we are
constrained to find that Appellant has failed to adequately support his claim
that counsel ignored his request to file an appeal. See Commonwealth v.
Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) (a PCRA court’s
credibility determinations are binding on this Court where, as here, there is
record support for those determinations). Accordingly, as Appellant has
failed to meet his burden of proof, his claim that trial counsel was ineffective
for failing to file a direct appeal is without merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2015
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