Com. v. Doyle, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMIEL WALIQUE DOYLE
Appellant No. 1153 MDA 2020
Appeal from the PCRA Order entered August 11, 2020
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0002116-2017
BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 12, 2021
Appellant, Jamiel Walique Doyle, appeals from the order entered in the
Dauphin County Court of Common Pleas on August 11, 2020, dismissing
Appellant’s petition for collateral relief pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. In addition, his counsel has filed
an application to withdraw. Upon review, we affirm the PCRA court’s order
and grant counsel’s application to withdraw.
Following a December 3, 2018 bench trial, Appellant was found guilty of
aggravated assault and not guilty of criminal mischief, charges that stemmed
from a March 3, 2017 altercation outside a Susquehanna Township bar. On
January 28, 2019, the trial court imposed a sentence of 50 to 120 months in
prison. Counsel informed the court that she would advise Appellant of his
post-sentence rights. Thereafter, Appellant did not file a direct appeal.
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On October 4, 2019, Appellant filed a timely pro se first PCRA petition.
Counsel was appointed and filed an amended petition alleging trial counsel
ineffectiveness for failing to file a motion for reconsideration of sentence or a
direct appeal. An evidentiary hearing was conducted by videoconference on
August 6, 2020. As the court explained:
At the PCRA hearing, [Appellant] testified that after his sentencing
hearing he and [trial counsel] spoke on the way out of the
courtroom regarding a direct appeal. He indicated that when he
asked [trial counsel] if he could appeal, she told him that it could
result in getting more jail time because the judge gave him a
break regarding sentencing. [Appellant] did not reach out to [trial
counsel] again personally, but he had [his fiancée] reach out to
her. [Appellant] testified that [his fiancée’s] discussion with [trial
counsel] resulted in an indication that if [Appellant] were to file a
post-sentence motion, his penalty could potentially get worse.
[Appellant’s fiancée] testified at the hearing and confirmed that
she had spoken to [trial counsel] after [Appellant] had been
sentenced. [Appellant’s fiancée] attested that [trial counsel]
indicated that filing an appeal could get [Appellant] more prison
time. [Appellant’s fiancée] testified that she told [trial counsel]
that “we didn’t want to get more time and that I would speak to
[Appellant] about it. And we had decided not to because we didn’t
want more time.”
PCRA Court Opinion, 12/22/20, at 2-3 (references to notes of testimony
omitted). Trial counsel also testified at the hearing. She testified that she
explained post-sentence rights to Appellant on the day of his hearing and
discussed the time limitations for filing an appeal. Appellant did not instruct
her to file an appeal and she did not speak with Appellant again about filing
an appeal. However, counsel did speak with Appellant’s fiancée and advised
her there were no guarantees Appellant would receive a mitigated sentence—
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as he did following his bench trial—if he appealed and received a new trial.
Appellant’s fiancée said she would talk with Appellant but “they were not
inclined to file an appeal.” Id. at 3. Counsel “never heard back from either
[Appellant or his fiancée] about filing an appeal.” Id.
Based on the testimony presented at the hearing, and in light of
Appellant’s failure to demonstrate that he requested counsel to file an appeal,
the PCRA court denied the petition. This timely appeal followed. The PCRA
court directed counsel to file a Rule 1925(b) statement. In response, counsel
filed a representation under Pa.R.A.P. 1925(d)(3) that no errors were being
asserted and counsel intended to seek to withdraw under
Anders/Santiago.1-2 The PCRA court issued its Rule 1925(a) opinion on
December 22, 2020, explaining that Appellant could not demonstrate
ineffectiveness for failing to file an appeal because he did not ask trial counsel
to file one.
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1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
2 The PCRA court noted that, in response to the court’s Rule 1925(b) order,
Appellant “filed numerous pro se statements of issues for appeal, along with
other motions and correspondence. It is well-established that a defendant is
not entitled to file pro se documents while represented by counsel.” PCRA
Court Opinion, 12/22/20, at 2 n.2 (citations omitted).
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Initially, we note that “[o]ur standard of review of the denial of a PCRA
petition is limited to examining whether the evidence of record supports the
court’s determination and whether its decision is free of legal error.”
Commonwealth v. Beatty, 207 A.3d 957, 960-61 (Pa. Super. 2019)
(citation omitted).
In this appeal, Appellant’s counsel has filed an Anders brief3 and an
application to withdraw. The Anders brief renews the challenge asserted
below, i.e., whether the [PCRA] court abused its discretion when it “improperly
dismissed [Appellant’s] PCRA claim.” Appellant’s Brief at 7. Before we
address the merits of the challenge, however, we must consider the adequacy
of counsel’s compliance with Anders and Santiago. Our Supreme Court
requires that counsel to do the following.
Prior to withdrawing as counsel . . . under Anders, counsel must
file a brief that meets the requirements established by our
Supreme Court in Santiago. The brief must:
(1) provide a summary of the procedural history and
facts, with citations to the record;
(2) refer to anything in the record that counsel
believes arguably supports the appeal;
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3 As this Court has recognized, a no-merit letter in accordance with
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), is the appropriate filing
when counsel seeks to withdraw on appeal from denial of PCRA relief.
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
“Because an Anders brief provides greater protection to a defendant, this
Court may accept an Anders brief in lieu of a Turner/Finley letter.” Id.(citation omitted).
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(3) set forth counsel’s conclusion that the appeal is
frivolous; and
(4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the relevant
facts of record, controlling case law, and/or statutes on
point that have led to the conclusion that the appeal is
frivolous.
Counsel also must provide a copy of the Anders brief to his client.
Attending the brief must be a letter that advises the client of his
right to: (1) retain new counsel to pursue the appeal; (2) proceed
pro se on appeal; or (3) raise any points that the appellant deems
worthy of the court[’]s attention in addition to the points raised
by counsel in the Anders brief.
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(quoting Santiago, 978 A.2d at 361) (additional citation omitted).
Counsel’s brief complies with these requirements by (1) providing a
summary of the procedural history and facts; (2) referring to matters of record
relevant to this appeal; and (3) explaining why the appeal is frivolous.
Counsel also sent his brief to Appellant with a letter advising him of the rights
listed in Orellana.4 All of Anders’ requirements are satisfied.
Appellant argues that the PCRA court abused its discretion when it
denied his PCRA petition, which claimed trial counsel ineffectiveness for failing
to file a direct appeal. Appellant cites case law establishing that counsel is per
se ineffective if a defendant establishes that the defendant asked counsel to
file an appeal and the request was disregarded. Appellant’s Brief at 11 (citing
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4 Appellant has not availed himself of the rights listed in Orellana and outlined
in counsel’s letter.
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Commonwealth v. Lantzy, 736 A.2d 564, 571 (Pa. 1999)). Further, if a
request for direct appeal is ignored by counsel, the defendant should be
granted an appeal nunc pro tunc. Id. at 12 (citing Commonwealth v.
Bronaugh, 670 A.2d 147, 149 (Pa. Super. 1995)).
While an ignored request to file an appeal warrants relief, the evidence
here establishes that Appellant did not request that trial counsel file an appeal.
As Appellant acknowledges:
The testimony reflected that trial counsel properly advised
Appellant and [his fiancée] regarding the procedures for filing a
direct appeal but also the potential pitfalls for filing a direct appeal.
It was established through [the fiancée’s] testimony that after
consultation with trial counsel, the Appellant elected not to file a
direct appeal.
Id. at 13.
The PCRA court concluded that Appellant did not ask trial counsel to file
an appeal. PCRA Court Opinion, 12/22/20, at 4. “This finding is supported by
the record as reflected in [trial counsel’s] testimony and credited by this court.
Further, [Appellant’s fiancée] indicated that [Appellant] had decided against
an appeal. Thus, [Appellant’s] claim lacks merit.” Id. (some capitalization
omitted).
We have examined the evidence of record and find it supports the PCRA
court’s determination. Further, we conclude the court’s decision is free of
legal error. Therefore, we affirm the August 11, 2020 order denying
Appellant’s petition. Further, we grant counsel’s application to withdraw.
Order affirmed. Application to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/12/2021
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