Com. v. Chilcote, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
ANDY LEE CHILCOTE :
:
Appellant : No. 351 MDA 2021
Appeal from the PCRA Order Entered February 16, 2021
In the Court of Common Pleas of Franklin County
Criminal Division at CP-28-CR-0001116-2016
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: SEPTEMBER 17, 2021
Andy Lee Chilcote (Appellant) appeals from the denial of his petition filed
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, in
which Appellant alleged ineffective assistance of counsel. We affirm.
In May 2017, a jury found Appellant guilty of aggravated harassment by
prisoner and the trial court found Appellant guilty of summary harassment.
See 18 Pa.C.S.A. §§ 2703.1, 2709(a)(1). On June 7, 2017, the trial court
sentenced Appellant to 27 - 84 months of incarceration for aggravated
harassment and imposed a consecutive term of 45-90 days’ incarceration for
the summary offense.1
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1 These sentences were within the standard range of the sentencing
guidelines.
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Following the reinstatement of Appellant’s post-sentence and direct
appeal rights in 2019, Appellant’s court-appointed counsel, Matthew Stewart,
Esquire (appellate counsel), filed a post-sentence motion, which the trial court
denied in September 2019. Appellant, through appellate counsel, timely filed
a direct appeal challenging the sufficiency of the evidence supporting his
convictions and claiming his sentences were excessive. This Court affirmed.
See Commonwealth v. Chilcote, 237 A.3d 474 (Pa. Super. May 22, 2020)
(unpublished memorandum).
Relevant to this appeal, appellate counsel did not file a petition for
allowance of appeal (PAA) with the Supreme Court of Pennsylvania. As we
explain below, there is no evidence that Appellant asked appellate counsel to
do so.
On August 10, 2020, Appellant timely filed a pro se PCRA petition. The
PCRA court appointed Appellant new counsel, who filed an amended PCRA
petition alleging ineffectiveness of appellate counsel for failure to file a PAA.
The Commonwealth filed an answer on November 5, 2020.
The PCRA court held an evidentiary hearing on January 8, 2021.
Appellant testified on his own behalf and was the only witness. Appellant
stated that after appellate counsel informed him by letter that the direct
appeal with this Court was unsuccessful, Appellant had no further contact with
appellate counsel. N.T., 1/8/21, at 5. Appellant testified that he wanted to
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file a PAA, but did not have the chance to ask appellate counsel to do so. Id.
at 6.
On February 16, 2021, the PCRA court entered an opinion and
accompanying order denying relief. Appellant timely filed a notice of appeal.
Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
Appellant presents a single question for our consideration:
Whether it was an abuse of discretion to dismiss [Appellant’s]
PCRA Petition to reinstate [Appellant’s] right to file a Petition for
Allowance of Appeal to the Supreme Court where prior appellate
counsel failed to file the Petition for Allowance of Appeal despite
[Appellant’s] desire to do so?
Appellant’s Brief at 4.
In evaluating the denial of a PCRA petition, our review:
is limited to the examination of whether the PCRA court’s
determination is supported by the record and free of legal error.
The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record. This Court grants
great deference to the findings of the PCRA court, and we will not
disturb those findings merely because the record could support a
contrary holding.
Commonwealth v. Maxwell, 232 A.3d 739, 744 (Pa. Super. 2020) (en banc)
(citations and quotation marks omitted). We review the PCRA court’s decision
for an abuse of discretion. Commonwealth v. Roney, 79 A.3d 595, 603 (Pa.
2013). Further, 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 trial level.” Commonwealth v. Miller, 102 A.3d 988,
992 (Pa. Super. 2014) (citation omitted).
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To be entitled to relief based on a claim of ineffective assistance of
counsel, a PCRA petitioner must establish that: (1) the underlying claim is of
arguable merit; (2) there was no reasonable basis for counsel’s action or
inaction; 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). Failure to satisfy any of these prongs
is fatal to a claim of ineffective assistance of counsel. Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014). Counsel is presumed to provide effective
assistance, and it is solely the petitioner’s burden to prove ineffectiveness.
See id.It is settled law that “an indigent defendant in Pennsylvania is entitled
to the assistance of counsel in seeking allowance of appeal.” Commonwealth
v. Ratsamy, 934 A.2d 1233, 1240 (Pa. 2007); see also Pa.R.Crim.P.
122(B)(2) (when counsel is appointed, the appointment is effective through
all proceedings on direct appeal including proceedings before the Supreme
Court following the grant of allocatur). While appeal to the Supreme Court is
a matter of judicial discretion and not a matter of right, 2 a defendant can
establish prejudice for failure to file a PAA in certain circumstances. See
Commonwealth v. Liebel, 825 A.2d 630, 633 (Pa. 2003) (failure of counsel
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2 “Review by the Supreme Court is purely discretionary and will be granted
only where there exist both special and important reasons.” Commonwealth
v. Padden, 783 A.2d 299, 316 (Pa. Super. 2001) (citations and quotation
marks omitted); see also Pa.R.A.P. 1113(a).
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to file a PAA constitutes ineffectiveness where the defendant requested
counsel to file and counsel disregarded the request). Where counsel fails to
file a requested PAA, an appellant alleging ineffective assistance need not
show that the PAA would likely have been granted, but merely that it was
requested and counsel failed to act. See id. at 635; but see Padden, 783
A.2d at 316 (“It would be illogical to conclude that a miscarriage of justice
occurred by counsel’s failure to seek Supreme Court review unless it is
established that the issue was such that review would have been granted by
the Supreme Court.” (citation omitted)). However, a mere allegation will not
suffice to prove that counsel ignored a petitioner’s request to file a PAA.
Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999).
Here, Liebel and its progeny are inapplicable because Appellant never
asked appellate counsel to file a PAA. See N.T., 1/8/21, at 6 (Appellant stating
he had no communication with appellate counsel after learning the direct
appeal was unsuccessful); see also Pro se PCRA Petition, 8/10/20, at 4A
(asserting appellate counsel “did not discuss with me the filing of a Petition
for Allowance of Appeal.”).
We recognize that even where a defendant did not request counsel to
file a PAA, ineffectiveness may still be found “where there is reason to think
that a defendant would want to appeal.” Commonwealth v. Bath, 907 A.2d
619, 623 (Pa. Super. 2006). This Court explained:
[C]ounsel has a constitutional duty to consult with a
defendant about an appeal where counsel has reason to believe
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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
counsel that he was interested in appealing.
***
Where no request has been made, an appellant must
establish that a duty to consult was owed. [A]n appellant may
establish a duty to consult by indicating issues that had any
potential merit for further review. This does not require
appellant to demonstrate that the Supreme Court would likely
grant review to a petition for allowance of appeal, but only that
appellant must show that any issue rises above frivolity.
Bath, 907 A.2d at 623-24 (emphasis added; citations and quotation marks
omitted).
The circumstances in Bath are both analogous and instructive to our
disposition of Appellant’s claim. The appellant, Mr. Bath, raised the same
claim as Appellant regarding his counsel’s failure to file a PAA. In denying
relief, we explained:
[An] appellant must show that any issue rises above frivolity.
Bath has not even attempted this minimal undertaking. Bath
challenged the sufficiency of the evidence on direct appeal and
several other issues that were deemed waived for failure to
preserve them at trial. Appealing such issues further appears
manifestly frivolous. It was incumbent upon Bath to demonstrate
to this Court why that was not the case. Bath has offered no
argument in support of any of the issues raised on direct
appeal. Therefore, we find that Bath has not met his burden of
showing how he was prejudiced by counsel’s failure to consult with
him regarding a petition for allowance of appeal. In the absence
of prejudice, we cannot find that counsel was ineffective. See
Commonwealth v. Mallory, 888 A.2d 854, 862 (Pa. Super.
2005).
Id. (emphasis added, citation modified).
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Upon review of the record and the law, we likewise discern no merit to
Appellant’s claim that appellate counsel was ineffective for failing to consult
with him about filing a PAA. At the PCRA hearing, Appellant presented no
evidence regarding issues for which he sought Supreme Court review. Cf.
Bath, 907 A.2d at 623 (“an appellant may establish a duty to consult by
indicating issues that had any potential merit for further review.”).
Although appellate counsel was not called as a witness at the PCRA
hearing to testify about issues raised in Appellant’s direct appeal or to discuss
counsel’s reasons for not filing a PAA, our review of the record confirms the
PCRA court’s determination that “various pleadings do not reveal any issue
that ‘rises above frivolity.’” PCRA Court Opinion, 2/16/21, at 4. Appellant
alleged: “I would have wanted the [PAA] to be filed because I believe there is
a unique fact in my case, that of mental disability, that would serve to be fully
considered at the time of sentencing as well as it being a defense to the crimes
charged.” Pro se PCRA Petition, 8/10/20, at 4A.3 This Court in Appellant’s
direct appeal considered a similar claim and rejected it, finding sufficient
evidence to support Appellant’s convictions. See Chilcote, 237 A.3d 474(unpublished memorandum at *7) (“[Appellant] argues that the evidence
showed that he suffered from mental infirmities, which precluded him from
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3 Appellant raised another claim in his PCRA petition which does not apply to
this appeal. See PCRA Court Opinion, 2/16/21, at 4 (explaining the claim
pertained to a separate case that was not before the court).
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realizing his actions. . . . It is the province of the jury as the trier of fact to
determine issues of credibility. . . . Despite [Appellant’s] testimony, the jury
credited the Commonwealth’s witnesses and evidence, which it was free to
do.”); see also Trial Court Opinion (post-sentence motions), 9/5/19, at 4
(rejecting Appellant’s discretionary sentencing challenge and stating the
sentencing court appropriately considered Appellant’s “mental health issues”).
Accordingly, we conclude that Appellant “[a]ppealing such issues further
appears manifestly frivolous. It was incumbent upon [Appellant] to
demonstrate to this Court why that was not the case,” but Appellant failed to
do so. Bath, 907 A.2d at 624.
In sum, Appellant has failed to advance any non-frivolous issues that
could have been presented to the Supreme Court, and he has not met his
burden of showing how he was prejudiced by appellate counsel’s failure to
consult with him about filing a PAA. See id. Thus, Appellant’s ineffectiveness
claim fails and the PCRA court did not abuse its discretion in denying relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2021
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