Com. v. Miller, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JUSTIN RAY MILLER
Appellant No. 2056 WDA 2014
Appeal from the PCRA Order of November 24, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No.: CP-56-CR-0000928-2011
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED MAY 05, 2015
Justin Ray Miller appeals the November 24, 2014 order denying his
petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-46. We affirm.
In a previous memorandum, we set forth the factual and procedural
history of this case as follows:
On November 8, 2012, a jury found [Miller] guilty of burglary,
criminal trespass, and theft by unlawful taking.[1] On November
20, 2012, [Miller] filed a pro se motion to dismiss counsel for
ineffectiveness. On December 6, 2012, the court sentenced
[Miller] to a term of not less than eighteen nor more than thirty-
six months’ imprisonment. The Public Defender’s Office
represented [Miller] at trial and sentencing.2
2
The record indicates that Attorney Jeffery W. Whiteko
represented [Miller] through the trial and Attorney
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18 Pa.C.S. §§ 3502(a), 3503(a)(1)(ii), and 3921(a), respectively.
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Benjamin F. Goodwin represented him at the sentencing
hearing.
[Miller], although still represented by the Public Defender’s
Office, filed an otherwise timely pro se direct appeal on
December 14, 2012 in violation of the prohibition of hybrid
representation. See Commonwealth v. Jette, 23 A.3d 1032,
1035-44 (Pa. 2011); Commonwealth v. Ellis, 626 A.2d 1137,
1039-41 (Pa. 1993). On February 25, 2013, this Court
dismissed [Miller’s] appeal for failing to file a docketing
statement pursuant to Pa.R.A.P. 3517.[3] [Miller] did not
petition the Pennsylvania Supreme Court for allowance of
appeal.
On November 14, 2013, [Miller] timely filed a pro se PCRA
petition. [Therein, Miller claimed ineffective assistance of
counsel due to counsel’s failure to file a direct appeal and
sentencing errors.] The PCRA court appointed Attorney James
V. Natale to represent [Miller], and counsel filed an amended
PCRA petition on January 3, 2014. The court scheduled a
hearing for March 18, 2014. (PCRA Court Order, 1/09/14).
However, the PCRA court then ordered that “at the time set for
hearing, the Superior Court having denied [Miller’s] [a]ppeal on
February 25, 2013, the request of [Miller] to appeal the case
nunc pro tunc is DENIED.” (PCRA Court Order, Dated 3/18/14
and Filed 3/21/14). There is no indication in the record that the
March 18, 2014 hearing occurred. On April 16, 2014, [Miller]
again filed a prohibited pro se but otherwise timely appeal. See
Jette, supra at 1035-44; Ellis, supra at 1039-41.
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3
Pa.R.A.P. § 3517 provides as follows:
Whenever a notice of appeal to the Superior Court is filed, the
Prothonotary shall send a docketing statement form which shall
be completed and returned within ten (10) days in order that the
Court shall be able to more efficiently and expeditiously
administer the scheduling of argument and submission of cases
on appeal. Failure to file a docketing statement may result in
dismissal of the appeal.
Pa.R.A.P. § 3517
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Nevertheless, since counsel filed a statement of errors and a
brief, [this Court reviewed] counsel’s statement of errors and
brief. Pursuant to the PCRA court’s order, [Miller] filed a
counseled [Pa.R.A.P.] 1925(b) statement on May 6, 2014. The
court entered its [Pa.R.A.P.] 1925(a) statement in lieu of an
opinion dated May 23, 2014 and filed on May 27, 2014.
Commonwealth v. Miller, 615 WDA 2014, slip op. at 1-3 (Pa. Super. Sept.
29, 2014) (emphasis in original) (some footnotes omitted).
On September 29, 2014, this Court vacated the order denying Miller’s
PCRA petition without hearing, and remanded for a hearing. Id. at 7. On
November 24, 2014, the PCRA court held a hearing on Miller’s PCRA petition.
Assistant Public Defender Benjamin Goodwin (“Goodwin”), Miller’s counsel at
sentencing, testified. Following Miller’s sentencing on December 6, 2012,
Goodwin asked Miller if he wanted to appeal his sentence, and Miller declined
and executed a rejection of appeal form. Notes of Testimony (“N.T.”),
11/24/2014, at 3-5. Miller admitted to signing the rejection of appeal form.
Id. at 17. Goodwin also testified that neither he nor the Public Defender’s
Office had any subsequent conversations or correspondence with Miller after
that date. Id. at 6. Miller then testified that he mailed a letter to Goodwin’s
office on December 7, 2012, requesting that an appeal be filed in his case.
Id. at 14-17. A copy of the letter was admitted into evidence. Id. at 16.
Goodwin denied ever receiving the letter, id. at 11, and Miller failed to offer
any evidence to prove that Goodwin had received Miller’s letter requesting
an appeal. The PCRA court ultimately denied Miller’s PCRA petition, finding
that “Attorney Goodwin was a credible witness,” and that Miller had signed
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“a [r]ejection of [a]ppeal, that [Miller] himself filed an appeal pro se on
December 14, 2012, that appeal having been denied by [this Court] for
violations of Pennsylvania Rules of Appellate Procedure 3517 on February
25, 2013.” Id. at 25.
On December 11, 2014, Miller timely filed a notice of appeal and a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). On January 26, 2015, the PCRA court filed a statement in lieu of
an opinion pursuant to Pa.R.A.P. 1925(a).
Miller raises one issue for our review:
Whether [Miller’s] legal counsel, Benjamin F. Goodwin, Esq. in
his capacity as a public defender, was ineffective for failing to file
an appeal of [Miller’s] judgment of sentence when [Miller] at his
PCRA hearing admitted into evidence a letter dated December 7,
2012 instructing Attorney Goodwin to file an appeal in his
case[?]
Brief for Miller at 3.
The “standard of review for an order denying post-conviction relief is
limited to whether the record supports the post-conviction court’s
determination, and whether that decision is free of legal error.”
Commonwealth v. Allen, 732 A.2d 582, 586 (Pa. 1999). The PCRA court’s
findings “will not be disturbed unless there is no support for the findings in
the certified record.” Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.
Super. 2008). “Where . . . there is record support for a PCRA court’s
credibility determinations, we, as a reviewing court, are bound by those
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determinations.” Commonwealth v. Abu-Jamal, 720 A.2d 79, 93 (Pa.
1998) (citation omitted).
Herein, Miller alleges, as he did in his timely PCRA petition, that
counsel was ineffective due to the failure to file an appeal of Miller’s
judgment of sentence. Brief for Miller at 7. We disagree.
Counsel is presumed effective, and an appellant bears the burden to
prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195
(Pa. 2012). An appellant must demonstrate that: (1) his underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his
action or inaction; and (3) the appellant suffered actual prejudice as a
result. See Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
Where, as in the instant case, the claim is counsel’s failure to file a direct
appeal, Pennsylvania utilizes a per se ineffectiveness test, Commonwealth
v. Lantzy, 736 A.2d 564, 571 (Pa. 1999) (“a failure to file or perfect [a
direct] appeal results in a denial so fundamental as to constitute prejudice
per se”), so long as an appellant establishes that he “requested [counsel to
file] an appeal and that counsel disregarded the request.” Commonwealth
v. Hudson, 485 A.2d 487, 489 (Pa. Super. 1984).
In addition, the PCRA court must hold a hearing to determine “whether
[an] [a]ppellant requested that counsel so appeal. If it is determined that
this request was made and counsel failed to comply, [an] [a]ppellant’s rights
must be reinstated.” Commonwealth v. Daniels, 737 A.2d 303, 305 (Pa.
Super. 1999). However, a “[m]ere allegation will not suffice; the burden is
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on [an] [a]ppellant to plead and prove that his request for an appeal was
ignored or rejected by trial counsel.” Commonwealth v. Harmon, 738
A.2d 1023, 1024 (Pa. Super. 1998) (citations omitted). Furthermore, an
appellant “must present the facts supporting each issue asserted . . . and if
they do not appear on the record . . . must identify affidavits, documents, or
other evidence proving the alleged facts.” Commonwealth v. Collins, 687
A.2d 1112, 1115 (Pa. 1996) (citation omitted).
In his brief, Miller concedes that, following his sentencing on December
6, 2012, he “signed a form stating that he did not wish to appeal his
conviction and judgment of sentence.” Brief for Miller at 10. Despite signing
the rejection of appeal form, Miller nonetheless claims that he sent a letter
to Goodwin the following day, requesting that Goodwin file an appeal on his
behalf. N.T. at 16. Goodwin maintains that he never received the letter at
the Public Defender’s Office or at his home office, and never received any
other correspondence indicating that Miller wanted Goodwin to appeal his
judgment of sentence. Id. at 11. In addition, Miller admits that he did not
know the address where he sent the letter, that he did not send the letter to
the Public Defender’s Office, and that he did not receive any certification or
correspondence indicating that Goodwin received the letter. Id. at 15-17.
Based upon the testimony presented at the PCRA hearing, the PCRA
court determined that Goodwin was a credible witness, and therefore found
Miller’s claim that he sent a letter to Goodwin requesting an appeal to be
unconvincing. Consequently, the PCRA court denied Miller’s PCRA petition.
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Credibility determinations made by the PCRA court are binding upon
this Court so long as there is support for the conclusions in the record.
Abu-Jamal, 720 A.2d at 93. There is ample support in the record for the
PCRA court’s credibility determinations because Miller failed to produce any
evidence to establish that he sent the letter to Goodwin requesting appeal,
or that Goodwin ever received the letter. Therefore, the record supports the
PCRA court’s finding that Goodwin was credible, and that Miller did not
request an appeal. Because his underlying claim lacks merit, Miller’s claim
of ineffective assistance of counsel is meritless.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2015
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