Com. v. Ingram, H. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
HOWARD INGRAM, : No. 729 EDA 2015
:
Appellant :
Appeal from the PCRA Order, February 10, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0005634-2008
BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 03, 2016
Howard Ingram appeals from the order entered February 10, 2015,
denying his PCRA1 petition. We affirm.
In a prior memorandum, this court set forth the history of this case as
follows:
On November 26, 2007, Appellant was charged
with murder, possession of an instrument of crime,
and three violations of the Uniform Firearms Act –
persons not to possess, possession of an unlicensed
firearm, and possession of a firearm in public in
Philadelphia. The complaint averred that on
November 25, 2007, Appellant shot David Howarth
to death near 1615 Brill Street, Philadelphia.
Appellant was not permitted to carry a gun due to
his prior criminal record and thus was unlicensed to
carry the weapon in question.
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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The record contains a written guilty plea
colloquy that established the following.[2] On
October 19, 2009, Appellant tendered a negotiated
guilty plea to third degree murder and possession of
an instrument of crime. The Commonwealth
withdrew the firearms charges. The sentence was to
be not more than fifteen to forty-five years in jail.
On October 19, 2009, the court accepted the guilty
plea and sentenced Appellant in accordance with the
plea arrangement to fifteen to forty-five years
incarceration. Appellant’s post-sentence rights were
set forth in written form, including the fact that he
had to file an appeal with [sic] thirty days and had
the right to file a post-sentence motion. Appellant
and his attorney executed the explanation of
Appellant’s post-sentence rights. Neither a
post-sentence motion nor a direct appeal was filed.
On May 21, 2010, Appellant filed a timely
pro se PCRA petition. He sought both to withdraw
his guilty plea on the basis that it was induced by
ineffective assistance of counsel and reinstatement
of his direct appeal rights nunc pro tunc. In that
petition, Appellant specifically averred that counsel
did not comply with his request to file a
post-sentence motion and that counsel failed to
“protect petitioner’s rights to file his appeal, as
requested by petitioner.” Pro Se PCRA Petition,
[5]/2[1]/10, at 3. PCRA counsel was appointed and
filed an amended petition, seeking the right to file a
direct appeal. Counsel averred that Appellant
“wanted and requested that his attorney file an
appeal in this matter, . . . but it was never done.”
Amended Petition, 9/21/12, at 2. In the amended
petition, Appellant demanded that he either be
granted an evidentiary hearing or accorded
immediate reinstatement of his direct appeal rights.
On December 3, 2012, the PCRA court issued a
Pa.R.Crim.P. 907 notice to dismiss the petition
2
The trial court also conducted a thorough oral plea colloquy and explained
appellant’s post-sentence and appeal rights. (Notes of testimony, 10/19/09
at 12-15.)
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without a hearing on the basis that the issues raised
were meritless. The petition was dismissed and this
appeal followed. The docket indicates that on
November 28, 2013, the PCRA court issued a
“No Opinion Letter.” Appellant raises a single issue:
Whether the trial court erred in
dismissing Petitioner’s amended Post
Conviction Relief Act (PCRA) petition
without an on the record evidentiary
hearing where the amended petition
alleged that trial counsel rendered
ineffective assistance by failing to file
notice of appeal from the judgment of
sentence following a guilty plea as
requested by Petitioner?
Appellant’s brief at 2.
Commonwealth v. Ingram, No. 364 EDA 2013, unpublished memorandum
at 1-3 (Pa.Super. filed August 19, 2014).
On appeal, this court reversed and remanded for an evidentiary
hearing, finding that there were outstanding issues of material fact, i.e.,
whether appellant asked for a direct appeal. Id. at 4. “Indeed, even when
a direct appeal is not requested, a defendant is entitled to an evidentiary
hearing based upon an averment that trial counsel was ineffective for
neglecting to consult with him about the filing of one.” Id., citing
Commonwealth v. Carter, 21 A.3d 680 (Pa.Super. 2011). We
relinquished jurisdiction. Id. at 5.
In fact, there was an evidentiary hearing held on appellant’s PCRA
petition, on December 3, 2012, at which appellant and plea counsel testified.
The hearing was held before the Honorable Carolyn Engel Temin, who also
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presided over appellant’s guilty plea hearing. Judge Temin has since retired.
The confusion appeared to stem from the fact that after holding an
evidentiary hearing on the matter, Judge Temin issued Rule 907 notice,
which is required when a PCRA petition is to be dismissed without a hearing.
(Docket #D6.) In addition, on April 10, 2013, after the appeal was filed,
PCRA counsel was permitted to withdraw. Current counsel,
J. Michael Farrell, Esq., was appointed on April 16, 2013. Attorney Farrell
was unaware that a hearing had occurred on December 3, 2012.
On remand, a status hearing was held on February 10, 2015, before
the Honorable Glenn B. Bronson. Judge Bronson noted that Judge Temin
did, in fact, hold a hearing on appellant’s PCRA petition and made credibility
determinations, specifically rejecting appellant’s allegation that he asked trial
counsel to withdraw his guilty plea and file an appeal. (Notes of testimony,
2/10/15 at 5.) On February 10, 2015, Judge Bronson denied appellant’s
petition, noting that this court’s decision remanding the case was clearly
premised on the erroneous belief that no hearing had been held and that
“Judge Temin did, in fact, conduct a hearing on defendant’s claim and issued
detailed factual and credibility determinations before rejecting his allegations
as incredible[.]” (Order, 2/10/15 at 1; Docket #D13.)
A timely notice of appeal was filed on March 12, 2015. On March 13,
2015, appellant was ordered to file a concise statement of errors complained
of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b),
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42 Pa.C.S.A. Appellant filed his Rule 1925(b) statement on Monday, April 6,
2015.3 On May 12, 2015, the PCRA court issued a Rule 1925(a) opinion.
On September 8, 2015, Attorney Farrell filed a petition to withdraw
and accompanying “Anders brief.”4 In a September 17, 2015 per curiam
order, Attorney Farrell was directed to provide the Superior Court
Prothonotary with copies of a letter to appellant advising him of his right to
retain new counsel or proceed pro se in this appeal. See Commonwealth
v. Friend, 896 A.2d 607 (Pa.Super. 2006) (counsel must forward to the
petitioner a copy of the “no-merit” letter and a statement advising the
petitioner that, in the event the court grants the application of counsel to
withdraw, the petitioner has the right to proceed pro se or with the
3
Friday, April 3, 2015 was a court holiday (Good Friday). Therefore,
appellant’s Rule 1925(b) statement was timely. See 1 Pa.C.S.A. § 1908
(whenever the last day of any period of time referred to in a statute shall fall
on Saturday or Sunday, or on any day made a legal holiday by the laws of
this Commonwealth or of the United States, such day shall be omitted from
the computation).
4
Attorney Farrell has filed an Anders brief rather than a Turner/Finley
no-merit letter. Anders v. California, 386 U.S. 738 (1967);
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On an appeal from the
denial of a PCRA petition, a Turner/Finley letter is the appropriate filing.
However, we may accept an Anders brief instead. See Commonwealth v.
Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004), appeal denied,
882 A.2d 477 (Pa. 2005) (“[B]ecause an Anders brief provides greater
protection to the defendant, we may accept an Anders brief in lieu of a
Turner/Finley letter.”). See also Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009) (guiding Pennsylvania courts’ application of Anders).
Despite counsel’s error, we find that he has complied substantially with the
Turner/Finley requirements. Hence, we overlook his procedural misstep.
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assistance of privately retained counsel); Commonwealth v. Widgins, 29
A.3d 816, 818 (Pa.Super. 2011) (the additional requirement imposed by the
Friend decision remains intact). On October 2, 2015, copies of the letter
from Attorney Farrell to appellant were received by this court. Appellant has
not filed a pro se response to Attorney Farrell’s petition to withdraw.
The sole issue for our review is appellant’s allegation that plea counsel,
Helen Levin, Esq., was ineffective for failing to file post-sentence motions
and/or a direct appeal on his behalf. Appellant sought reinstatement of his
direct appeal rights nunc pro tunc.
The PCRA court’s order is subject to the following
principles on review:
Our scope of review when examining a
PCRA court’s denial of relief is limited to
whether the court’s findings are
supported by the record and the order is
otherwise free of legal error.
Commonwealth v. Jermyn, 551 Pa.
96, 709 A.2d 849 (1998);
Commonwealth v. Morales, 549 Pa.
400, 701 A.2d 516 (1997);
Commonwealth v. Carbone, 707 A.2d
1145 (Pa.Super.1998). We will not
disturb findings that are supported by
the record. Commonwealth v. Yager,
454 Pa.Super. 428, 685 A.2d 1000
(1996) (en banc), appeal denied, 549
Pa. 716, 701 A.2d 577 (1997);
Commonwealth v. Bell, 706 A.2d 855
(Pa.Super.1998), appeal denied, 557
Pa. 624, 732 A.2d 611 (1998).
Commonwealth v. Lambert, 765 A.2d 306, 323
(Pa.Super.2000). Furthermore, as Appellant’s issue
is stated in terms of ineffectiveness of counsel,
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Appellant must show that: (1) his claim has
arguable merit; (2) counsel’s performance had no
reasonable basis; and (3) counsel’s action or inaction
worked to Appellant’s prejudice. Commonwealth v.
Miller, 560 Pa. 500, 746 A.2d 592 (2000).
Commonwealth v. Qualls, 785 A.2d 1007, 1009-1010 (Pa.Super. 2001).
Generally, a petitioner who has pled guilty and later
seeks post conviction relief must prove that the
ineffectiveness of his plea counsel “unlawfully
induced” his plea, making it involuntary or
unknowing. 42 Pa.C.S.A. § 9542(a)(2)(iii); Yager,
supra at 1004. However, the case of a petitioner
who was denied a requested direct appeal by the
ineffectiveness of his trial or plea counsel presents a
special problem of constitutional dimension. In
Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d
564 (1999), our Supreme Court resolved this
problem as follows:
[W]here there is an unjustified failure
to file a requested direct appeal, the
conduct of counsel falls beneath the
range of competence demanded of
attorneys in criminal cases, [denying]
the accused the assistance of counsel
guaranteed by the Sixth Amendment to
the United States Constitution and
Article I, Section 9 of the Pennsylvania
Constitution, and constitutes prejudice.
. . . Therefore, in such circumstances,
and where the remaining requirements
of the PCRA are satisfied, the petitioner
is not required to establish his
innocence or demonstrate the merits of
the issue or issues which would have
been raised on appeal.
Id. at 226-27, 736 A.2d at 572 (footnotes and
citations omitted).
Counsel’s unjustified failure to file a direct appeal will
constitute prejudice per se under Lantzy, if the
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petitioner can establish that he did ask counsel to file
an appeal. Commonwealth v. Harmon, 738 A.2d
1023, 1024 (Pa.Super.1999), appeal denied, 562
Pa. 666, 753 A.2d 815 (2000).
Id. at 1010. See also Commonwealth v. Bath, 907 A.2d 619, 622-623
(Pa.Super. 2006), appeal denied, 918 A.2d 741 (Pa. 2007) (counsel has a
duty to adequately consult with the defendant as to the advantages and
disadvantages of an appeal where there is reason to think that a defendant
would want to appeal, e.g., because there are non-frivolous grounds for
appeal, or the defendant reasonably demonstrated to counsel that he was
interested in appealing), discussing Roe v. Flores-Ortega, 528 U.S. 470
(2000), and Commonwealth v. Touw, 781 A.2d 1250 (Pa.Super. 2001).
At the PCRA hearing held on December 3, 2012, appellant testified
that he asked plea counsel, Attorney Levin, to file a motion for
reconsideration of sentence. (Notes of testimony, 12/3/12 at 8.) According
to appellant, he spoke with Attorney Levin immediately following the guilty
plea proceeding. (Id. at 10-11, 13.)
Attorney Levin testified that she has been a public defender since
1985, and was assigned to the homicide unit in 1995. (Id. at 14.) She
remembered appellant’s case. (Id. at 15.) Attorney Levin recalled that they
were not anticipating a guilty plea and were prepared to go to trial. (Id. at
16.) Attorney Levin testified that she had no recollection of appellant asking
her to file post-sentence motions or an appeal, and there is no indication
that he did so in her file. (Id.) Attorney Levin testified that if appellant had
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asked her to file a motion for reconsideration of sentence, she would have
explained to him that the trial court could not reconsider a negotiated
sentence, but that she could file a motion to withdraw the guilty plea on his
behalf. (Id. at 20-21.) However, she does not recall appellant ever asking
her to file any post-sentence motions. (Id.)
After hearing all the testimony, Judge Temin found that appellant’s
guilty plea was entered knowingly, intelligently, and voluntarily, and that he
did not ask Attorney Levin to file any post-sentence motions or an appeal:
I believe Ms. Levin’s testimony, which is -- and if
[he] had asked her to file an appeal, she would have
proceeded as she testified that if -- she would have
indicated that I couldn’t reconsider the sentence,
that she couldn’t ask me to reconsider the sentence.
But if he wanted to file an appeal, she would have
filed an appeal. Whether or not she thought it was
going to be a successful appeal, she would have
done that. So the petition is denied.
Id. at 25.
Essentially, the PCRA court made a credibility determination, which is
unassailable on appeal. See Widgins, 29 A.3d at 820, citing
Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009) (“The PCRA
court’s credibility determinations are binding on this Court, where the record
supports those determinations.”). We have no basis on which to set aside
the PCRA court’s determination that appellant did not request the filing of
post-sentence motions or a direct appeal; nor was there any reason for
Attorney Levin to think that appellant would want to take an appeal.
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Appellant had entered a negotiated plea following a thorough and probing
plea colloquy. The PCRA court specifically found that appellant’s testimony
that he asked Attorney Levin to file a motion for reconsideration was not
believable. As the record supports the PCRA court’s credibility
determination, we agree with counsel that appellant’s claim lacks merit and
the instant appeal is frivolous. Therefore, we will affirm the order denying
appellant nunc pro tunc relief, and grant Attorney Farrell’s petition to
withdraw.
Petition to withdraw granted; order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2016
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