Com. v. White, W. ( 2021 )

J-S10023-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM HOWARD WHITE :
:
Appellant : No. 966 MDA 2020
Appeal from the PCRA Order Entered June 26, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0002171-2017,
CP-06-CR-0002172-2017, CP-06-CR-0002173-2017,
CP-06-CR-0002174-2017, CP-06-CR-0002653-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM HOWARD WHITE :
:
Appellant : No. 967 MDA 2020
Appeal from the PCRA Order Entered June 26, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0002171-2017,
CP-06-CR-0002172-2017, CP-06-CR-0002173-2017,
CP-06-CR-0002174-2017, CP-06-CR-0002653-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM HOWARD WHITE :
:
Appellant : No. 968 MDA 2020
Appeal from the PCRA Order Entered June 26, 2020
J-S10023-21
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0002171-2017,
CP-06-CR-0002172-2017, CP-06-CR-0002173-2017,
CP-06-CR-0002174-2017, CP-06-CR-0002653-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM HOWARD WHITE :
:
Appellant : No. 969 MDA 2020
Appeal from the PCRA Order Entered June 26, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0002171-2017,
CP-06-CR-0002172-2017, CP-06-CR-0002173-2017,
CP-06-CR-0002174-2017, CP-06-CR-0002653-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM HOWARD WHITE :
:
Appellant : No. 970 MDA 2020
Appeal from the PCRA Order Entered June 26, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0002171-2017,
CP-06-CR-0002172-2017, CP-06-CR-0002173-2017,
CP-06-CR-0002174-2017, CP-06-CR-0002653-2017
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 02, 2021
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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J-S10023-21
William Howard White appeals from the order denying his Post
Conviction Relief Act (“PCRA”) petition.1 White argues his plea counsel was
ineffective for failing to consult with him regarding a direct appeal. We affirm.
White entered an open guilty plea in 2018 to five counts of robbery.2
The trial court sentenced him to an aggregate sentence of 10 to 30 years’
incarceration. White did not file a post-sentence motion or a direct appeal.
White filed a timely PCRA petition, asserting multiple issues, including
that his plea counsel had been ineffective for failing to file a direct appeal on
his behalf. The PCRA court appointed counsel, who filed a no-merit letter3 and
request to withdraw.
The PCRA court denied counsel’s withdraw request and held an
evidentiary hearing on whether plea counsel had been ineffective for failing to
file a direct appeal. At the hearing,
[plea counsel] testified that [White] never asked him to file an
appeal. [Plea counsel] stated that he went over [White’s] post
sentence rights with [him] and that [he] signed a form
acknowledging those rights. [Plea counsel] informed [White] he
had ten days to submit an appeal to the trial court and thirty days
to submit an appeal to the Superior Court. [Plea counsel] also
testified that he met with [White] at Berks County Prison a few
days after [White] pleaded guilty and that [White] never asked
him to file an appeal. On cross examination, [plea counsel] again
____________________________________________
1 See 42 Pa.C.S.A. §§ 9541-9546.
2 White pleaded guilty to four counts of robbery under 18 Pa.C.S.A. §
3701(a)(1)(ii) and one count of robbery under 18 Pa.C.S.A. § 3701(a)(1)(v).
3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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reiterated that [White] never asked him to file an appeal on [his]
behalf.
PCRA Court Opinion, filed 11/4/20, at 3-4. Conversely, White testified “he was
not sure if he ever received his post sentence rights and that he asked [plea
counsel] to appeal for reconsideration of his sentence.” Id. at 4. White also
testified “that, after he pleaded guilty, plea counsel told him that he could
possibly get more time if his sentence was reconsidered.” Id. The PCRA court
found plea counsel’s testimony more credible than White’s testimony, see id.
at 3, and dismissed the petition.4
White appealed, raising a single issue: “Did the PCRA court err by
denying relief where [White] demonstrated that he had indicated his desire to
appeal his sentence to his attorney?” White’s Br. at 3.
We assess an order denying PCRA relief under a well-settled standard
of review. Our task is to determine whether the conclusions of the PCRA court
are “supported by the record and free of legal error.” Commonwealth v.
Anderson, 234 A.3d 735, 737 (Pa.Super. 2020) (citation omitted).
White argues that because the PCRA court found as a fact that he had
not explicitly asked plea counsel to file a direct appeal, and “the extreme
likelihood of this finding being disturbed by this Honorable Court,” he will no
longer pursue his claim that plea counsel was ineffective per se for refusing to
file an appeal. White’s Br. at 12. Instead, White now argues that plea counsel
____________________________________________
4 The court also issued a Pa.R.Crim.P. 907 notice of its intention to dismiss
the issues for which it did not hold a hearing. White did not respond, and the
court dismissed the petition in relation to those issues as well.
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was ineffective for failing to adequately consult with him regarding the appeal.
Id. at 12-13 (citing Commonwealth v. Bath, 907 A.2d 619, 623 (Pa.Super.
2006)). In support of this theory, White asserts he “had already informed
[plea counsel], immediately following his sentencing in an open plea, where
he had no idea of the outcome, of his desire for reconsideration of that
sentence.” Id. at 13. White points out that plea counsel testified that “when
he spoke to [White] at Berks County Prison, [White] immediately began asking
about a motion for reconsideration.” Id. Counsel testified that he advised
White that he thought the sentence was fair, but never explained how White
responded to counsel’s advice. Id. White contends “[t]here can be no doubt
that had counsel properly consulted with him, [White] would have requested
an appeal.” Id. at 14.
Whether a defendant has been deprived the right to effective assistance
of counsel due to counsel’s failure to consult with him regarding a potential
appeal is a different issue than whether counsel was ineffective for failing to
file a direct appeal when explicitly asked to do so. See Bath, 907 A.2d at 622-
23. Whereas “the unjustified failure to file a requested direct appeal is
ineffective assistance of counsel per se,” counsel’s duty to consult with his
client regarding the advantages and disadvantages of filing an appeal only
arises when “counsel has reason to believe either (1) that a rational defendant
would want to appeal (for example, because there are non-frivolous grounds
for appeal), or (2) that this particular defendant reasonably demonstrated to
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counsel that he was interested in appealing.” Id. (quotation marks and citation
omitted).
Here, White argued to the PCRA court that he had asked his counsel to
file a direct appeal, and that counsel was ineffective per se for ignoring this
request. White did not argue to the PCRA court, as he does to this Court, that
he had reasonably demonstrated a desire to appeal and that counsel had failed
to adequately consult with him regarding a potential appeal. He has therefore
waived this issue for appeal. See Pa.R.A.P. 302(a); Commonwealth v.
Rosser, 135 A.3d 1077, 1087 (Pa.Super. 2016) (finding issue waived where
appellant switched legal theory on appeal). Moreover, White made no mention
of this issue in his Rule 1925(b) statement,5 and the trial court accordingly did
not address it in its Rule 1925(a) opinion. White has waived the issue in this
manner as well. See Pa.R.A.P. 1925(b)(4)(vii).
Even if White had not waived the issue, we would find it meritless. Plea
counsel testified that he advised White regarding his post-sentence and appeal
rights before White pleaded guilty. See N.T., 6/24/20, at 18-21. Directly after
sentencing, plea counsel discussed with White whether he should file a post-
sentence motion for reconsideration of his sentence. Id. at 21-22. They
discussed a post-sentence motion again a few days later, at the prison. Id.
Counsel advised White that it was White’s decision whether to file a post-
____________________________________________
5 In his statement, White describes his issue as follows: “The PCRA Court erred
in determining that Mr. White did not request a direct appeal to be filed by
counsel and in denying his direct appeal rights to be reinstated.” Pa.R.A.P.
1925(b) Statement, 8/11/20, at 1.
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sentence motion. Id. at 22. Counsel testified “there was never any discussion
about an appeal.” Id.; see also id. at 25. The PCRA court credited counsel’s
testimony, and we defer to the court’s credibility determination. White has
therefore failed to prove that he reasonably demonstrated a desire to appeal
and that counsel failed to consult with him.6
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/2/2021
____________________________________________
6 White does not argue that a rational defendant in his position would want to
appeal, or that an appeal would not have been frivolous, and we therefore
need not address whether counsel had a duty to consult on this basis.
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