Com. v. Monaghan, M. ( 2020 )

J-A12045-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MITCHELL E. MONAGHAN :
:
Appellant : No. 161 WDA 2020
Appeal from the PCRA Order Entered January 8, 2020,
in the Court of Common Pleas of Jefferson County,
Criminal Division at No(s): CP-33-CR-0000419-2009.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED JULY 07, 2020
Mitchell E. Monaghan appeals from the order denying his first petition
filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546.
We affirm.
The pertinent facts and procedural history may be summarized as
follows. On May 5, 2010, Monaghan entered a guilty plea to the possession
with intent to deliver cocaine and heroin. That same day, the trial court
imposed a sentence of 2½ to 5 years of imprisonment and a consecutive
three-year probationary term. Monaghan was paroled from state
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* Retired Senior Judge assigned to the Superior Court.
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incarceration in April of 2011.1 Monaghan committed new crimes in 2012,
which resulted in the revocation of his parole, and he was recommitted for
twenty-four months.
Monaghan was reparoled in August of 2014. His maximum sentence of
incarceration expired in November 2016, and he began serving his three years
of probation. On January 23, 2017, the county adult probation department
filed a notice of a Gagnon I hearing,2 based on an incident of domestic
violence that occurred approximately two weeks earlier. Although the charges
originally filed as a result of this incident were withdrawn, the trial court found
probable cause to revoke based upon technical violations, and scheduled a
Gagnon II hearing. Although Monaghan held been represented by a county
public defender to this point, the public defender’s office withdrew. Monaghan
appeared with privately-retained counsel (“revocation counsel”) at the hearing
held on February 15, 2017. At the hearing, Monaghan admitted the violations,
but the trial court still heard testimony from Monaghan’s state parole agent,
as well as Monaghan’s girlfriend and her sister.
After hearing this testimony, the trial court found that Monaghan
violated his probation. The trial court requested an updated presentence
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1 The facts regarding Monaghan’s state parole history are taken from his
parole agent’s testimony at a hearing held on February 15, 2017. See N.T.,
2/15/17, at 7-8.
2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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report and continued the hearing to another date. On March 1, 2017, the
hearing reconvened and the trial court heard argument from revocation
counsel and Monaghan made a statement to the court. Although adult
probation recommended a minimum sentence of 7½ years, the trial court
imposed a new sentence of 4 to 15 years of imprisonment.
Although he never entered his appearance, Attorney David Shrager, who
was hired by Monaghan’s family, filed a timely post-sentence motion for
reconsideration, which the trial court denied by order entered March 13, 2017.
Monaghan did not file a direct appeal.
On December 18, 2017, Monaghan filed a pro se PCRA petition in which
he asserted, inter alia, that revocation counsel “rendered ineffective
assistance of counsel for failing to advise, consult or make a reasonable effort
to discuss with [him] his right to appeal.” PCRA Petition, 12/18/17, at 3. The
PCRA court appointed counsel. Monaghan was reparoled in May 2018.3
On August 19, 2019, PCRA counsel filed a motion for an evidentiary
hearing.4 On October 11, 2019, the PCRA court held an evidentiary hearing
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3See N.T., 10/11/19, at 12 (Monaghan testifies he served eighteen months
before being reparoled).
4Although it appears that PCRA counsel successfully sought an order from the
court requiring revocation counsel to return Monaghan’s file, there is no other
explanation for the almost two-year delay between Monaghan’s filing of his
pro se PCRA petition, and PCRA counsel’s request for an evidentiary hearing.
Our Supreme Court has made clear that “[t]he PCRA court [has] the ability
and responsibility to manage its docket and caseload and thus has an essential
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at which both Monaghan and revocation counsel testified. By order entered
January 8, 2020, the PCRA court denied Monaghan’s PCRA petition. This
timely appeal followed. Both Monaghan and the PCRA court have complied
with Pa.R.A.P. 1925.
Monaghan now raises the following issue:
1. Did the [PCRA] court err in denying [Monaghan’s] PCRA
petition when the court failed to find that [revocation
counsel] was ineffective for failing to consult with [him]
in a meaningful way subsequent to [the] imposition of
[the] revocation sentence . . . as to the advantages and
disadvantages of taking a direct appeal[?]
Monaghan’s Brief at 4.
Under the applicable standard of review, we determine whether the
ruling of the PCRA court is supported by the record and is free of legal error.
The PCRA court’s factual findings will not be disturbed unless there is no
support for the findings in the certified record. Commonwealth v. Barndt,
74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted). We apply a de
novo standard of review to the PCRA court’s legal conclusions.
Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014).
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA
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role in ensuring the timely resolution of PCRA matters.” Commonwealth v.
Renchenski, 52 A.3d 251, 260 (Pa. 2012) (citation omitted).
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appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
Monaghan’s claim alleges the ineffective assistance of revocation
counsel. To obtain relief under the PCRA premised on a claim that counsel
was ineffective, a petitioner must establish by a preponderance of the
evidence that counsel’s ineffectiveness so undermined the truth determining
process that no reliable adjudication of guilt or innocence could have taken
place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).
“Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) petitioner
was prejudiced by counsel's act or omission. Id. at 533. A finding of
"prejudice" requires the petitioner to show "that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different." Id. A failure to satisfy any prong of
the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
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When a defendant does not explicitly instruct counsel to file a direct
appeal, counsel may still be found ineffective if counsel does not consult with
the defendant about his appellate rights. Commonwealth v. Touw, 781
A.2d 1250 (Pa. Super. 2001). In Touw, this Court recognized that in Roe v.
Flores-Ortega, 528 U.S. 470 (2000), “the United States Supreme Court
defined “consult” as “advising the defendant about the advantages and
disadvantages of taking an appeal, and making a reasonable effort to discover
the defendant’s wishes.” Touw, 781 A.2d at 1254 (citing Flores-Ortega,
528 U.S. at 478)). We then cited the following from Flores-Ortega:
[C]ounsel has a constitutionally-imposed duty to consult
with the defendant about an appeal when there is reason to
think either (1) that a rational defendant would want to
appeal, or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in
appealing. In making this determination, courts must take
into account all the information counsel knew or should have
known.
Touw, 781 A.2d at 1254 (citing Flores-Ortega, 528 U.S. at 480)).
“A deficient failure on the part of counsel to consult with the defendant
does not automatically entitle the defendant to reinstatement of his or her
appellate rights.” Touw, 781 A.2d at 1254. As we noted, the High Court in
Flores-Ortega held that, in order “to show prejudice in these circumstances,
a defendant must demonstrate that there is a reasonable probability that, but
for counsel’s deficient failure to consult with him about an appeal, he would
have timely appealed.” Touw, 781 A.2d at 1254 (citing Flores-Ortega, 528
U.S. at 484)).
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Here, the PCRA court summarized its factual findings given the
testimony from the evidentiary hearing as follows:
In his discussions with Monaghan prior to sentencing,
[revocation counsel], explained that the [trial court] had
broad sentencing discretion. The result, he advised, could
be anywhere between a time-served sentence and one
ending with a 15-year maximum. Monaghan was
nonetheless unprepared for the latter and was stunned
when the [trial court] ordered him to prison for 4-15 years.
His only comment to [revocation counsel] before leaving the
courtroom, though, was that the sentence was harsh.
[Revocation counsel] agreed but indicated that there was
nothing he could do about it.
[Revocation counsel] and Monaghan spoke again that
afternoon, but the subject of an appeal was not broached.
[Revocation counsel, Monaghan] said, was only concerned
with getting paid and walked away upon learning that
[Monaghan] did not have the money to compensate him for
his appearance that day. [Revocation counsel], meanwhile,
could not recall the substance of their post-hearing
conversation but knew Monaghan’s rendition did not
comport with his general practice. Monaghan, in any event,
knew he could appeal the sentence but did not indicate that
he wanted to so, and [revocation counsel], who well
understood the deference afforded to sentencing judges and
had conveyed as much to [Monaghan], had no intention of
pursuing post-sentence motions or an appeal.
His own intentions notwithstanding, [revocation counsel]
knew within days that [Attorney David Shrager] was in the
process of preparing post-sentence motions on
[Monaghan’s] behalf. He even supplied documentation to
assist his colleague in that endeavor but, as was his habit,
did not withdraw his own appearance. Meanwhile, although
[Attorney] Shrager filed post-sentence motions for
[Monaghan] on March 10, 2019, he did not make himself
attorney of record and did not file a direct appeal after the
post-sentence motion proved unsuccessful.
Monaghan was far from ignorant of the procedural path
his case was taking. He had spoken with members of his
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family and knew they had retained [Attorney Shrager] “for
the appeal.” [Monaghan] did not communicate with
[Attorney] Shrager directly at any point, though, and when
he received a copy of the [trial court’s] order denying his
post-sentence motions, he did not reach out to either
[Attorney] Shrager or [revocation counsel] about a direct
appeal.
PCRA Court Opinion, 18/20, at 1-2.
Monaghan asserts that “under the above circumstances there would be
reason to believe that [revocation counsel] was aware [he] would want to file
a motion to modify sentence, and that [he] would, assuming that motion were
denied, want to file a direct appeal from the revocation sentence imposed by
the court attacking the discretionary aspects of that revocation sentence.”
Monaghan’s Brief at 10.
The PCRA court found no merit to this claim. Given its factual findings,
the PCRA court concluded that Monaghan did not prove prejudice because the
“duty” required of revocation counsel by Touw and Flores-Ortega, “never
attached.” Id. at 3. The court explained:
This was not a case where a defendant stood before the
court with little understanding of what might happen next.
Rather, Monaghan knew from discussions with [revocation
counsel] that sentencing was entirely at the [trial court’s]
discretion and that it had the authority to exercise its
discretion anywhere within the pendulum of no sanction to
a maximum term of imprisonment. He also knew he had
the right to appeal any sentence the [trial court] imposed.
As far as the record reflects, however, he did not indicate
ahead of time that he wanted to take an appeal if it was the
latter, while there is no question that he did not request an
appeal afterward.
Under the circumstances, moreover, [revocation
counsel] had little reason to think he needed to initiate a
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post-sentence, appeal-specific conversation. Though he
knew ahead of time what could happen, Monaghan did not
say, “I want to appeal if I get more than . . .,” and when
[revocation counsel] said there was nothing he could do
about what [Monaghan] characterized as a “harsh”
sentence, Monaghan again said nothing about wanting to
appeal. What both knew, though, was that the minimum
could have been 7½ years and that Monaghan would be
eligible for parole in less than a year. That being the case,
it would be disingenuous to say that [Monaghan’s] silence
should have given [revocation counsel] notice that he
wanted to appeal.
Even assuming there was a level of unreasonableness in
[revocation counsel’s] failure to consult with Monaghan, his
duty under Touw was fully discharged after he learned first-
hand that [Attorney] Shrager was going to further pursue
the matter. [Revocation counsel] surely realized at that
point that [Monaghan] did in fact want to explore his post-
sentencing options. In light of [Attorney] Shrager’s
involvement, and having not heard from Monaghan since
the date of sentencing, however, there was no cause for
[revocation counsel] to conclude that he needed to go back
and ascertain whether [Monaghan] wanted to file a direct
appeal. Whereas Monaghan understood from what his
family told him that [Attorney] Shrager was engaged for
“the appeal,” moreover the [the PCRA court] can reasonably
conclude that [Monaghan] did not even expect [revocation
counsel] to file one for him.
Though the [PCRA court] does not question the veracity
of Monaghan’s assertion that he wanted to file a direct
appeal, therefore, his own silence after sentencing, coupled
with his consent to [Attorney] Shrager’s involvement,
defeats his claim that [revocation counsel] was ineffective
for failing to consult with him regarding the advantages and
disadvantages of going that route.
PCRA Court Opinion, 1/8/20, at 3-4.
Our review supports the PCRA court’s conclusion. In short, the PCRA
court found that Monaghan was aware of his right to appeal, along with its
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advantages and disadvantages prior to the imposition of his revocation
sentence. We cannot disturb this credibility determination. See
Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999)
(explaining that when a PCRA court’s determination of credibility is supported
by the record, it cannot be disturbed on appeal).
In arguing to the contrary, Monaghan assails the PCRA court’s placing
“great weight” on the fact that Attorney Shrager filed a post-sentence motion
on his behalf, since revocation counsel remained his attorney of record.
Monaghan’s Brief at 14. Although revocation counsel never withdrew his
appearance as attorney of record, and Attorney Shrager did not enter his
appearance before filing the post-sentence motion—in which Monaghan
challenged his sentence as excessive—given the unique facts of this case, we
agree with the PCRA court that Monaghan could not establish prejudice under
the Touw and Flores-Ortega standard. We therefore affirm the PCRA court’s
order denying him post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2020
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