Com. v. Thompson, G. ( 2020 )

J-S04015-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 992 EDA 2019
Appeal from the PCRA Order Entered February 28, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001679-2015
BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 7, 2020
Appellant, Gary Thompson, appeals from the post-conviction court’s
February 28, 2019 order denying his petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant solely contends that
his trial counsel acted ineffectively by not filing a direct appeal on his behalf.
After careful review, we are compelled to vacate the court’s order and remand
for further proceedings.
In November of 2016, Appellant and three co-defendants proceeded to
a non-jury trial on charges relating to the robbery of a man on a Philadelphia
street in January of 2015. At the close of trial, the court convicted Appellant
of aggravated assault, robbery, conspiracy, and related offenses. On February
10, 2017, he was sentenced to an aggregate term of 3½ to 7 years’
incarceration, followed by 2 years’ probation. He did not file any post-
sentence motions, or a direct appeal.
J-S04015-20
On August 10, 2017, Appellant filed a pro se PCRA petition. Counsel
was appointed and an amended petition was filed on his behalf. Therein,
Appellant claimed that he asked his trial counsel, Judge Hall, Esq., to file a
post-sentence motion and a direct appeal, but Attorney Hall ineffectively failed
to do so. On September 10, 2018, the PCRA court conducted an evidentiary
hearing, at which Appellant and Attorney Hall both testified. According to
Appellant, just after the imposition of his sentence, he told counsel that he
wanted to file an appeal. See N.T. Hearing, 9/10/18, at 10. Appellant claimed
that Attorney Hall said that he would talk to Appellant about an appeal, but
Appellant never heard from Attorney Hall again. Id. at 10, 11. After
sentencing, Appellant was moved to several different jails, and when he finally
was settled at his “home facility” in July of 2017, he asked his mother to call
Attorney Hall to ask about the appeal. Id. at 11, 12. According to Appellant,
his mother could not reach counsel, so Appellant assumed that Attorney Hall
had not filed the appeal on his behalf. Id. at 12. He then filed his PCRA
petition seeking the restoration of his appeal rights nunc pro tunc. Id. at 12,
13.
Attorney Hall, however, testified that he and Appellant only spoke briefly
about an appeal, and counsel had informed Appellant that he could “think of
no meritorious claims.” Id. at 18. Attorney Hall insisted that Appellant never
asked him to file a post-sentence motion or an appeal, and he claimed that,
had Appellant done so, he would have filed an appeal. Id. at 18, 21. He also
-2-
J-S04015-20
testified that he had no contact with Appellant’s mother after the sentencing
hearing. Id. at 22.
At the close of the PCRA hearing, the court took the matter under
advisement. On January 31, 2019, it issued a Pa.R.Crim.P. 907 notice of its
intent to dismiss Appellant’s petition, simply stating that it was “without
merit.” Pa.R.Crim.P. 907 Notice, 1/31/19, at 2 (unnumbered). On February
28, 2019, the court issued an order dismissing the petition “based upon lack
of merit.” Order, 2/28/19, at 1 (unnumbered; unnecessary capitalization
omitted).
Appellant filed a timely notice of appeal. It does not appear that the
court directed him to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. On June 26, 2019, the court issued a single-
paragraph Rule 1925(a) opinion, simply setting forth procedural facts of
Appellant’s case, the issue he raised in his Rule 1925(b) statement, and a
declaration that, “[t]his [c]ourt’s decision should be affirmed.” PCRA Court
Opinion, 6/26/19, at 1 (unnumbered).
Herein, Appellant raises a single claim for our review: “Did the PCRA
[c]ourt err and/or abuse its discretion when it denied [A]ppellant[’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.
Preliminarily, we observe that,
“[o]n 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.”
-3-
J-S04015-20
Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013)
(citation omitted). “[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). “The PCRA court’s credibility determinations,
when supported by the record, are binding on this Court.”
Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259 (2011)
(citation omitted). “However, this Court applies a de novo
standard of review to the PCRA court’s legal conclusions.” Id.Commonwealth v. Medina, 92 A.3d 1210, 1214–15 (Pa. Super. 2014) (en
banc).
Additionally, we recognize:
Our standard of review when faced with a claim of ineffective
assistance of counsel is well settled. First, we note that counsel is
presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.
***
A petitioner must show (1) that the underlying claim has merit;
(2) counsel had no reasonable strategic basis for his or her action
or inaction; and (3) but for the errors or omissions of counsel,
there is a reasonable probability that the outcome of the
proceedings would have been different. The failure to prove any
one of the three prongs results in the failure of petitioner’s claim.
Our Supreme Court has held that counsel’s unexplained failure to
file a requested direct appeal constitutes ineffectiveness 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 the counsel disregarded the
request.
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011).
Here, Appellant testified at the PCRA hearing that he requested counsel
file a direct appeal on his behalf. Attorney Hall, on the other hand, testified
-4-
J-S04015-20
that Appellant never made that request. Thus, the PCRA court was required
to make credibility determination, which it failed to do. Our Supreme Court
has declared that “when a PCRA hearing is held, and the PCRA court makes
findings of fact, we expect the PCRA court to make necessary credibility
determinations.” Commonwealth v. Johnson, 966 A.2d 523, 539–40 (Pa.
2009). “Indeed, when a PCRA court has failed to make necessary credibility
determinations, we have not hesitated to remand for such findings.”
Commonwealth v. Spotz, 84 A.3d 294, 319 (Pa. 2014).
In this case, we conclude that we must remand for the court to make
the necessary credibility determination regarding whether Appellant
requested that Attorney Hall file a direct appeal. While we could presume that
the court believed Attorney Hall’s testimony that Appellant made no such
request, we cannot be certain that the court did not reject counsel’s testimony
and deny Appellant’s petition on some other basis. We decline to rest our
decision on speculation rather than explicit findings by the PCRA court.
Therefore, we vacate the court’s order and remand for it to make credibility
determinations on the record, and enter a new order ruling on Appellant’s
petition.
Order vacated. Case remanded. Jurisdiction relinquished.
-5-
J-S04015-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/07/2020
-6-