Com. v. Moss, S. ( 2014 )

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37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. :
:
STEPHEN MOSS, :
:
Appellant : No. 741 WDA 2014
Appeal from the PCRA Order April 4, 2014,
in the Court of Common Pleas of Mercer County,
Criminal Division, at No: CP-43-CR-0001492-2010
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 07, 2014
Stephen Moss (Appellant) appeals from the April 4, 2014 order which
denied his petition for relief filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On September 1, 2010, Appellant was arrested and charged with
persons not to possess firearms, possession of a small amount of marijuana,
and possession of drug paraphernalia. He was convicted by a jury of these
charges on August 11, 2011, and was sentenced to a term of five to ten
n consecutive to any existing sentence. Appellant timely
filed a motion to modify the sentence as being excessive, which was denied.
Appellant timely appealed, and on August 2, 2012, a panel of this Court
luding that Appellant
failed to raise a substantial question concerning the discretionary aspects of
*Retired Senior Judge assigned to the Superior Court.
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his sentence. See Commonwealth v. Moss, 60 A.3d 556 (Pa. Super. 2012)
(unpublished memorandum at 3).1
On June 17, 2013, Appellant filed, pro se, a PCRA petition. Counsel
was appointed and an amended petition was filed. A hearing was held on
April 3, 2014, and on April 4, 2014, the PCRA court entered an order
denying Appellant relief. Appellant timely filed a notice of appeal. The PCRA
court ordered Appellant to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925, and Appellant complied.
ef petition
alleging that trial counsel was ineffective for failing to raise on direct appeal
the issues of sufficiency of the evidence and the denial of the omnibus
motion on the grounds the Appellant asked counsel to raise those issues on
Preliminarily we note that, in reviewing the propriety of an order
granting or denying PCRA relief, an appellate court is limited to ascertaining
whether the record supports the determination of the PCRA court and
whether the ruling is free of legal error. Commonwealth v. Johnson, 966
A.2d 523, 532 (Pa. 2009). This Court grants great deference to the findings
1
rior opinion.
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of the PCRA court if the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 2007). Furthermore,
to be entitled to relief under the PCRA, the petitioner must plead and prove
by a preponderance of the evidence that the conviction or sentence arose
from one or more of the errors enumerated in section 9543(a)(2) of the
PCRA, which includes ineffective assistance of counsel. See 42 Pa.C.S.
§ 9543(a)(2)(ii).
assistance of counsel, we bear in mind that counsel is presumed to be
effective. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). To
overcome this presumption, Appellant bears the burden of proving the
(1) the underlying substantive claim has arguable merit; (2)
counsel whose effectiveness is being challenged did not have a reasonable
basis for his or her actions or failure to act; and (3) the petitioner suffered
Id.claim will be denied if he fails to meet any one of these three prongs. Id.On appeal, Appellant argues that
the PCRA Court has err
to determine the merits of the issues once it has been shown
Once the Appellant requested that his Trial Counsel raise the
additional issues in his direct appeal, Trial Counsel should have
included those issues in the appeal to allow this Honorable
Superior Court to consider them.
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case back to the trial level so that a proper direct appeal can be prepared
pertaining to the sufficiency of the evidence and the denial of the omnibus
Id.It is well-
of his right of direct appeal by counsel's failure to perfect an
appeal is per se without the effective assistance of counsel, and
Commonwealth v. Johnson, 889 A.2d 620, 622 (Pa. Super.
2005) (emphasis added) (citing Commonwealth v. Halley, 582
Pa. 164, 870 A.2d 795 (2005) (failing to file a Pa.R.A.P.1925(b)
statement on behalf of an accused seeking to appeal his
sentence, resulting in the waiver of all claims, constitutes an
actual or constructive denial of counsel and entitles the accused
to a direct appeal nunc pro tunc regardless of his ability to
establish the merits of the issues that were waived);
Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999)
(failing to file a requested direct appeal denies the accused the
assistance of counsel and the right to a direct appeal, and the
accused is entitled to reinstatement of his direct appeal rights)).
See Commonwealth v. Franklin, 823 A.2d 906 (Pa. Super.
2003) (holding that reinstatement of direct appeal rights was
proper where the appellant's brief on direct appeal was so
extreme circumstances, where counsel has effectively
abandoned his or her client and cannot possibly be acting in the
client's best interests, our Supreme Court has held that the risk
Commonwealth v.
West, 883 A.2d 654, 658 (Pa. Super. 2005).
However, it is also well-settled that the reinstatement of
direct appeal rights is not the proper remedy when appellate
counsel perfected a direct appeal but simply failed to raise
certain claims. See Johnson, supra. Where a petitioner was not
entirely denied his right to a direct appeal and only some of the
issues the petitioner wished to pursue were waived, the
reinstatement of the petitioner's direct appeal rights is not a
proper remedy. See Halley, 582 Pa. at 172, 870 A.2d at 801
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completely foreclose appellate review, and those which may
Johnson; supra (noting this
Court has expressly distinguished between those cases where a
PCRA petitioner is entitled to a direct appeal nunc pro tunc
where prior counsel's actions, in effect, entirely denied his right
to a direct appeal, as opposed to a PCRA petitioner whose prior
counsel's ineffectiveness may have waived one or more, but not
all, issues on direct appeal); Commonwealth v. Ginglardi, 758
A.2d 193 (Pa. Super. 2000) (indicating that where two of the
three issues presented on direct appeal were waived the relief
afforded under Lantzy was unavailable to a PCRA petitioner). In
such circumstances, the appellant must proceed under the
auspices of the PCRA, and the PCRA court should apply the
traditional three-prong test for determining whether appellate
counsel was ineffective.
Commonwealth v. Grosella, 902 A.2d 1290, 1293-94 (Pa. Super. 2006).
Thus, in this case, because appellate counsel did indeed perfect
traditional three-prong test outlined in Martin, supra
wholly fails to do so. Moreover, pursuant to Grosella, supra, the relief
Appellant asks us to grant, the reinstatement of his right to direct appeal, is
improper in this case. Accordingly, we hold that the PCRA court did not err
as a matter of law in denying Appellant relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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