Com. v. Thompson, G. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GARY THOMPSON :
:
Appellant : No. 1774 EDA 2021
Appeal from the PCRA Order Entered June 16, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0001679-2015
BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED JUNE 22, 2022
Gary Thompson (Appellant) appeals from the order dismissing his first
petition filed pursuant to the Post Conviction Relief Act (PCRA). 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The PCRA court detailed the case history as follows:
On January 29, 2015, [Appellant], in concert with three
others, robbed Robert Gotwalt on the 3100 block of D Street in
Philadelphia. One of the men had a gun and used it to hit Gotwalt
several times over the head. [Appellant] and his co-defendants
were pulled over in a vehicle shortly after the robbery and
arrested. The gun and a [ski] mask used in the robbery were also
found in the vehicle.
A [consolidated, non-jury] trial was held on November 16
and 17, 2016. At the end of the trial, [Appellant] was found guilty
of aggravated assault, robbery, conspiracy, [several firearms
offenses,] receiving stolen property, simple assault, recklessly
endangering another person, and possessing an instrument of a
crime. On February 10, 2017, [Appellant] was sentenced to an
aggregate sentence of 3.5 to 7 years [of] incarceration, followed
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by 2 years of probation. [Appellant] did not file a post-sentence
motion or a notice of appeal.
On August 10, 2017, [Appellant timely] filed a pro se PCRA
petition, seeking reinstatement of his direct appeal rights. On
August 30, 2017, James R. Lloyd, Esquire [(PCRA counsel)],
entered his appearance as appointed PCRA counsel. On October
10, 2017, [PCRA counsel] filed an amended PCRA petition. On
February 14, 2018, the Commonwealth filed a motion to dismiss.
On April 9, 2018, [PCRA counsel] filed a second amended PCRA
petition.
On September 10, 2018, an evidentiary hearing [(PCRA
hearing)] was held on one issue: whether [Appellant] requested
trial counsel to file an appeal. [Appellant] testified that at both
his trial and sentencing, he was represented by Judge Hall, Esquire
[(Attorney Hall, trial counsel, or Hall)]. N.T., 9/10/18, p. 8-9.
When asked about requesting Mr. Hall to file an appeal on his
behalf, [Appellant] testified as follows:
[APPELLANT]: At the sentencing hearing, Judge Gordon
had made a statement where he said that he was thinking
about the case every [sic] since trial and he said he didn’t
know if he was sending the right people to jail.
So as soon as I heard that, I asked [Attorney] Hall,
when he asked me “Are you okay with the sentence,” I
said, “Yes, but I want to file an appeal.” And he said he
was going to talk to me and I never heard from him since.
***
PCRA COUNSEL: Okay. Before that did you ever tell
[Attorney] Hall that you wanted to file an appeal or was
that the first time you told him?
[APPELLANT]: That was the first time.
PCRA COUNSEL: Did that take place -- where did this
conversation happen?
[APPELLANT]: As we were still sitting at the sentencing.
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Id. at 9-10. [Appellant] further testified that after his sentencing,
he did not attempt to contact Mr. Hall. Id. at 11. [Appellant] did
ask his mother to reach out to Mr. Hall, but she told [Appellant]
that she was unable to get ahold of [Hall]. Id. at 12. …
The Commonwealth then called Attorney Hall to testify.
Hall affirmed that he represented [Appellant] through the waiver
trial and sentencing. Id. at 17-18. Hall also affirmed that
[Appellant] was charged with robbery and aggravated assault and
that the DNA found on the ski mask matched [Appellant’s DNA].
Hall testified about [Appellant] requesting an appeal as follows:
HALL: I spoke to [Appellant] briefly regarding an appeal,
and I said something along the lines of — and, Judge, I’m
paraphrasing here — I said “I can think of no meritorious
claims.” And I indicated to [Appellant] that the DNA
evidence that matched his DNA was not good.
But I told him that I will take a second look at
things, and if there were, as I recall, any meritorious
appealable issues, then I will go on and file the appeal
anyway and ask the Judge to appoint new counsel because
I do not accept court appointed appeals, nor have I ever.
COMMONWEALTH: And so this conversation that you had
with [Appellant] regarding any potential appeal issues,
when did that take place?
HALL: I want to say during sentencing. I want to say it
was either during sentencing or immediately after trial
once the convictions were handed down. And if I recall
correctly, [Appellant’s] response was “Okay.”
COMMONWEALTH: And that was his response to your —
could you explain what that was in response to?
HALL: Sure. I told [Appellant] that if I don’t see anything
— and that particular day I didn’t see anything — but I told
him that I would take a look at things and see if I could
see anything, however, if he wanted me to appeal anyway,
I will ask the Judge to appoint new counsel or just go on
and file the appeal.
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And if [Appellant] came up with anything that he
wanted me to appeal, then he could either let me know or
have his mother give me a call. The reason I referred to
his mother is because from my time of representing
[Appellant], his mother and I have spoken either on the
phone or in person approximately 15 times. She had my
phone number. So, I recall [Appellant’s] response being
as what I just said, “Okay.”
COMMONWEALTH: So he didn’t ask you to file an appeal?
HALL: Absolutely not.
***
COMMONWEALTH: So what is your typical practice when
a client asks you to file an appeal?
HALL: If that request is made while we were still in court
or before the Judge, I would have asked the Judge to
formally withdraw my representation and appoint counsel.
COMMONWEALTH: And you would have done so on the
record?
HALL: Absolutely.
COMMONWEALTH: If [Appellant] had asked you to file an
appeal?
HALL: Absolutely.
COMMONWEALTH: And if someone had contacted you by
phone or letter regarding an appeal or a post sentence
motion, what is your typical practice?
HALL: I would have went on and filed the appeal and then
went into Judge Gordon’s courtroom and asked him to
appoint counsel, because I don’t accept those type of
appointments.
Id. at 18-22. Hall further testified that after sentencing, he did
not receive calls, emails, or letters from [Appellant’s] mother
requesting him to file an appeal. Id. at 22.
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On re-direct, Hall elaborated on the conversation he had
with [Appellant at sentencing]:
COMMONWEALTH: Did you tell [Appellant] that you would
file an appeal?
HALL: I did not.
COMMONWEALTH: Did you explain to him that he needed
to ask for an appeal to be filed?
HALL: I did not say those exact words, no.
COMMONWEALTH: So if it wasn’t in those exact words,
what was said?
HALL: I told [Appellant] that if he wanted me to file an
appeal on his behalf, or have an appeal filed period, then
he could let me know or he should let me know or either
have his mother contact me and I will just go on and do it
and ask the Judge to appoint counsel.
So I told [Appellant] that if I didn’t hear from him,
I would assume that he doesn’t want to appeal. And the
reason I said it that [] is because [Appellant] and I had a
fairly, somewhat lengthy conversation regarding his
sentence. I … indicated to [Appellant] that I felt that was
a very good sentence based on the charges he was found
guilty of.
Id. [at] 27-28. …
On January 31, 2019, [the PCRA] court sent [Appellant a
Pa.R.Crim.P.] 907 notice of intent to dismiss [Appellant’s PCRA
petition]. On February 19, 2019, [PCRA counsel] filed a response
to the 907 notice. On February 28, 2019, following a thorough
review of the record, this court dismissed [Appellant’s] PCRA
petition for lack of merit.
PCRA Court Opinion, 6/26/19, at 2-5.
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Appellant timely appealed, arguing Attorney Hall was ineffective for
failing to file a requested direct appeal. On April 7, 2020, this Court vacated
and remanded the case for the PCRA court “to make the necessary credibility
determination regarding whether Appellant requested that Attorney Hall file a
direct appeal.” Commonwealth v. Thompson, 236 A.3d 1057, at *6 (Pa.
Super. 2020) (unpublished memorandum).
On June 16, 2021, in compliance with this Court’s directive, the PCRA
court stated on the record:
I find credibility in favor of Attorney Hall. I do not believe
[Appellant] requested that [Hall] take an appeal. And so, the
petition is dismissed based upon lack of merit. I believe Attorney
Hall when he says [Appellant] did not ask him to file an appeal.
N.T., 6/16/21, at 5. That same day, the PCRA court entered an order
dismissing Appellant’s PCRA petition. Appellant timely appealed. Although
the PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement
of errors, it issued a Rule 1925(a) opinion in which it relied upon the rationale
in the prior June 26, 2019, opinion. See PCRA Court Opinion, 10/21/21, at
1-2; see also id. at 2 (stating the PCRA court, “did not find [Appellant] to be
credible and remained unconvinced that [Appellant] ever requested Hall to file
an appeal.”).
Appellant presents a single issue for our consideration:
Did the PCRA Court err and/or abuse its discretion when it denied
[Appellant’s] petition under the PCRA seeking leave to file a direct
appeal nunc pro tunc where trial counsel failed to file an appeal?
Appellant’s Brief at 4.
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“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court’s ruling is
supported by the record and free of legal error.” Commonwealth v. Spotz,
171 A.3d 675, 678 (Pa. 2017). We review the PCRA court’s decision for an
abuse of discretion. Commonwealth v. Roney, 79 A.3d 595, 603 (Pa.
2013). “It is an appellant’s burden to persuade us that the PCRA court erred
and that relief is due.” Commonwealth v. Stansbury, 219 A.3d 157, 161
(Pa. Super. 2019) (citation omitted).
We view the evidence of record in a light most favorable to the
Commonwealth, as the prevailing party below. We are bound by
the PCRA court’s credibility determinations, unless those
determinations are not supported by the record; however, we
review the PCRA court’s legal conclusions de novo.
Commonwealth v. Flor, 259 A.3d 891, 902 (Pa. 2021) (citations omitted);
see also Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super.
2014) (“As an appellate court, we do not assess credibility nor do we assign
weight to any of the testimony of record.”).
All PCRA petitions must be filed within one year of the date the judgment
of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1); see also
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (courts lack
jurisdiction to address untimely PCRA petitions). Here, Appellant timely filed
his PCRA petition within one year of his judgment of sentence becoming final
in March 2017.
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To obtain relief based on a claim of ineffective assistance of counsel, a
PCRA petitioner must establish, by a preponderance of the evidence, that: (1)
the underlying claim is of arguable merit; (2) there was no reasonable basis
for counsel’s action or failure to act; and (3) but for counsel’s error, there is a
“reasonable probability the result of the proceeding would have been
different.” Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015); see
also 42 Pa.C.S.A. § 9543(a)(2)(ii). Failure to satisfy any of the three prongs
is fatal to an ineffectiveness claim. Commonwealth v. Spotz, 84 A.3d 294,
311 (Pa. 2014). Counsel is presumed to be effective, and it is the petitioner’s
burden to prove otherwise. Id.Where defense counsel inexplicably fails to file a requested direct
appeal, we have explained that such inaction
constitutes ineffective assistance per se, such that the petitioner
is entitled to reinstatement of direct appeal rights nunc pro tunc
without establishing prejudice. However, before a court will
find ineffectiveness of counsel for failing to file a direct
appeal, the petitioner must prove that he requested a
direct appeal and counsel disregarded the request.
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super.
2011) (emphasis added; citations omitted).
Appellant argues Attorney Hall was per se ineffective for failing to file a
requested direct appeal:
[Appellant] indicated that he wanted to appeal. [Attorney Hall]
stated that he would look into potential appellate issues and file
an appeal if he found an issue that counsel considered to be
meritorious. [Attorney Hall] did not advise that [Appellant] had a
right to appeal regardless of trial counsel’s assessment of the
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merits of any potential appellate issues. Finally, the record clearly
reflects that [Attorney Hall] instructed [Appellant] that he had to
take any and all appellate action through counsel. [Attorney
Hall’s] subsequent failure to file an appeal after [Appellant] told
him that he wished to proceed with an appeal resulted in the loss
of the opportunity to challenge the verdict and sentence on
appeal.
Appellant’s Brief at 24 (emphasis in original). Appellant references his
testimony that he expressly asked Attorney Hall to file a direct appeal. Id. at
29-30 (citing N.T., 9/10/18, at 10 (Appellant stating, in response to Attorney
Hall asking Appellant at sentencing, “‘Are you okay with the sentence,’ I said,
‘Yes, but I want to file an appeal.’ And [Attorney Hall] said he was going to
talk to me and I never heard from him since.”)).
Appellant argues:
In essence, [trial] counsel told [Appellant] that he might file an
appeal, and then never bothered to tell [Appellant]: (1) that [trial
counsel] had not filed an appeal; or, more importantly, (2) that
[Appellant] had a right to file an appeal regardless of whether
[trial counsel] wanted to file an appeal.
Appellant’s Brief at 35.
Critically, the PCRA court found Attorney Hall’s testimony credible and
discredited Appellant’s testimony that he asked Attorney Hall to file an appeal.
See N.T., 6/16/21, at 4-5; PCRA Court Opinion, 10/21/21, at 2; see also
PCRA Court Opinion, 6/26/19, at 8 (“at no point is there any statement on the
record of [Appellant] requesting [Attorney] Hall to file a notice of appeal”;
Appellant admitted at the PCRA hearing “he did not attempt to contact Hall at
any time after sentencing to request that he file an appeal.”).
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As the PCRA court’s findings are supported by the record, we may not
disturb them. Flor, supra, at 902.
Finally, to the extent Appellant claims trial counsel was ineffective for
failing to advise him that he could file a direct appeal pro se, Appellant waived
this claim for failing to raise it in his PCRA petition or otherwise before the
PCRA court.1 See Pa.R.A.P. 302(a) (claims cannot be raised for the first time
on appeal); Roney, 79 A.3d at 611 (appellant/petitioner waived issues not
presented to the PCRA court); see also Pa.R.Crim.P. 902(B) (“Each ground
relied upon in support of the relief requested shall be stated in the [PCRA]
petition. Failure to state such a ground in the petition shall preclude the
defendant from raising that ground in any proceeding for post-conviction
collateral relief.” (emphasis added)).
Furthermore, at sentencing, Attorney Hall informed Appellant, on the
record, of Appellant’s right “to file an appeal asking that a higher court review
what the judge here has done today.” N.T., 2/10/17, at 26; see also id.
(counsel advising Appellant if he “cannot afford an attorney, one will be
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1 A claim that defense counsel was ineffective for failing to file a requested
direct appeal is distinct from a claim of counsel’s ineffectiveness for failing to
consult with defendant. Compare Commonwealth v. Lantzy, 736 A.2d
564, 571-72 (Pa. 1999) (discussing claims that defense counsel abandoned
defendant by failing to file requested direct appeal), with Commonwealth
v. Touw, 781 A.2d 1250, 1254 (Pa. Super. 2001) (discussing claims that
counsel failed to consult with defendant about an appeal).
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appointed to represent you.”). Appellant responded that he understood and
did not have any questions. Id. at 26-27.
Accordingly, since Appellant failed to plead and prove that he asked trial
counsel to file a direct appeal, the PCRA court did not abuse its discretion in
rejecting Appellant’s ineffectiveness challenge and dismissing his PCRA
petition. See, e.g., Commonwealth v. Mojica, 242 A.3d 949, 956 (Pa.
Super. 2020) (affirming denial of PCRA relief where appellant/defendant failed
to prove he asked defense counsel to file direct appeal); see also
Commonwealth v. Markowitz, 32 A.3d 706, 717 (Pa. Super. 2011) (“While
counsel cannot refuse to file a direct appeal because he believes there are no
issues to appeal, he is not required to file an appeal that is not requested.”);
cf. Lantzy, 736 A.2d at 572-73 (holding appellant proved defense counsel’s
ineffectiveness for failure to file a requested direct appeal, and remanding for
reinstatement of appeal rights).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2022
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