Com. v. Reason, B. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRIAN REASON :
:
Appellant : No. 647 EDA 2021
Appeal from the PCRA Order Entered March 12, 2021
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003260-2016
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED OCTOBER 1, 2021
Appellant, Brian Reason, appeals from the order entered on March 12,
2021, dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel for Appellant, C. Curtis Norcini,
Esquire (“Attorney Norcini”), filed a Turner/Finley1 no-merit brief and a
petition to withdraw as counsel. We grant counsel's petition to withdraw and
affirm the March 12, 2021 order.
A prior panel of this Court briefly summarized the facts and procedural
history of this case as follows:
From the record, we discern[ed] that Appellant had a history of
violence against his long-term paramour. On May 2, 2017,
Appellant entered a negotiated guilty plea on charges related to
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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[a] physical confrontation. Specifically, Appellant agreed to plead
guilty to intimidation of witnesses or victims and simple assault
and be sentenced to an aggregate term of eighteen to sixty
months of imprisonment, and the Commonwealth agreed to
dismiss the remaining charges. The trial court expressed
misgivings due to Appellant's criminal history in general, and
repeated incidents with the victim, even opining that an
aggravated-range sentence would likely be imposed if Appellant
were convicted at a trial, but accepted the plea and sentenced
Appellant accordingly. Appellant thanked the court for accepting
the standard-range plea and dismissal of additional charges. See
N.T. Guilty Plea, 5/2/17, at 27. Appellant filed no post-sentence
motion or direct appeal.
Appellant filed a timely pro se PCRA petition alleging four claims
of ineffective assistance of plea counsel, including the claim that
plea counsel failed to file a requested direct appeal. See PCRA
Petition, 5/7/18, at 4.
Commonwealth v. Reasons,2 241 A.3d 450 (Pa. Super. 2020) (unpublished
memorandum) at *1.
We ultimately remanded the matter for the PCRA court to appoint
substitute PCRA counsel and to conduct a hearing on the sole issue of whether
Appellant requested that plea counsel file a direct appeal. Id. at *4. We
deemed Appellant’s remaining PCRA claims waived. Id. Following this
Court’s remand, on October 27, 2020, the PCRA court appointed Attorney
Norcini to represent Appellant. The PCRA court held an evidentiary hearing
on March 11, 2021. By order and opinion entered on March 12, 2021, the
PCRA court denied Appellant relief on the sole issue subject to our remand
and thereby dismissed the PCRA petition. This timely appeal resulted.
____________________________________________
2 Appellant has corrected the record. His last name is “Reason,” not
“Reasons.” See Reasons, 241 A3d at n.1; see also PCRA Court Opinion,
3/12/2021, at 2 n.1.
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The Turner/Finley brief raises the following issue for review:
1. Did the PCRA court commit an abuse of discretion by denying
relief on Appellant’s claim that plea counsel provided ineffective
assistance of counsel for failing to file a notice of appeal
following Appellant’s sentencing hearing?
Turner/Finley Brief, at 7.
Preliminarily, however, we address counsel's Turner/Finley brief and
accompanying petition to withdraw as counsel. When PCRA counsel opines
that a petitioner's appeal is without merit and counsel seeks to withdraw,
Turner/Finley counsel must review the case zealously [and] then
submit a no-merit [brief] to this Court, detailing the nature and
extent of counsel's diligent review of the case, listing the issues
which the petitioner wants to have reviewed, explaining why and
how those issues lack merit, and requesting permission to
withdraw. Counsel must also send to the petitioner: (1) a copy of
the no-merit [ ]brief; (2) a copy of counsel's petition to withdraw;
and (3) a statement advising petitioner of the [immediate] right
to proceed pro se or by new counsel.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (quotation
marks, citations, and original paragraph formatting omitted). If counsel
satisfies the technical requirements of Turner/Finley, then this Court must
conduct its own review of the merits of the case. Id. If this Court agrees with
counsel that the claims are without merit, then counsel will be permitted to
withdraw. Id.Here, Attorney Norcini has complied with the requirements of
Turner/Finley. The Turner/Finley brief details that Attorney Norcini
conducted a review of Appellant's case, including Appellant's claim of
ineffective assistance of plea counsel, but ultimately determined that the claim
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lacked merit because there was no evidence that Appellant requested that
plea counsel file a direct appeal following the entry of his negotiated plea.
Attorney Norcini provided Appellant with a copy of his Turner/Finley no-merit
brief and a copy of his petition to withdraw as counsel, as demonstrated by
his April 30, 2021 letter to Appellant. Moreover, Attorney Norcini advised
Appellant that he had the immediate right to proceed in the appeal pro se or
through privately-retained counsel. As counsel complied with the
Turner/Finley requirements to withdraw from representation, we now review
whether the PCRA court correctly dismissed Appellant's PCRA petition.
“Our standard of review from the grant or denial of post-conviction relief
is limited to examining whether the PCRA court's determination is supported
by the evidence of record and whether it is free of legal error.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation
omitted). “We will not disturb findings that are supported by the record.” Id.Moreover,
[o]ur 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 [the petitioner].
***
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.
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Our Supreme Court has held that counsel's unexplained failure to
file a requested direct appeal constitutes ineffective assistance 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 that counsel disregarded the
request.
Id. at 1244 (internal citations omitted).
Here, the PCRA court determined there was no evidence that Appellant
asked plea counsel to file an appeal. PCRA Court Opinion, 3/12/2021, at 1-9.
At the PCRA evidentiary hearing, counsel testified that there were no
communication issues with Appellant and Appellant never expressed
dissatisfaction with the entry of his guilty plea or the negotiated plea deal
reached with the Commonwealth. N.T., 3/10/2021, at 5-6. In fact, plea
counsel stated that the trial court initially was reluctant to accept the plea deal
due to the lenient nature of its sentence. Id. at 5. The terms of the plea deal
were placed on the record, Appellant signed a written guilty plea colloquy and
answered questions during an oral colloquy, and the trial court ultimately
accepted Appellant’s guilty plea. Id. at 5-6. After the plea deal was accepted,
plea counsel had multiple conversations with Appellant and various family
members, who requested Appellant’s file in this matter. Id. at 7. However,
there was no request for counsel to file an appeal on Appellant’s behalf. Id.
Instead, at the guilty plea hearing, Appellant thanked the trial court twice for
accepting his guilty plea when “the [trial court] didn’t want to take the offer
and wanted to give him more time.” Id. at 8. Appellant admitted that he did
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not express dissatisfaction with plea counsel at the plea hearing and he did
not request an appeal with the trial court following sentencing. Id. at 10-12.
Appellant confirmed that he thanked the trial court twice for accepting his
guilty plea but claimed he did so upon the advice of counsel. Id. at 15.
Appellant did not have any documentation, such as an e-mail, text, or letter,
to prove that he requested an appeal. Id. at 13.
Ultimately, the PCRA court found plea counsel’s testimony credible and
Appellant’s testimony not credible. PCRA Court Opinion, 3/12/2021, at 3 and
8. Those findings are supported by the record, and we will not disturb them.
As the PCRA court noted, the trial court “extensively colloquized [Appellant]
throughout the plea [and Appellant] never indicated in either words or actions
that he was anything less than thrilled that the [trial c]ourt accepted the
negotiated plea.” Id. at 4. The PCRA court further acknowledged that
Appellant “was satisfied with his attorney and even expressed his thanks to
the [trial c]ourt twice for accepting the negotiated plea agreement.” Id. at 5.
Moreover, here, there is no dispute that Appellant’s appeal rights were
explained to him in both the written and oral colloquies at the time he entered
his plea. Id. at 6-7. Upon review, there was simply no evidence that
Appellant requested an appeal. Instead, Appellant expressed his gratitude,
on the record, for the negotiated plea deal he received. Based upon all of the
foregoing, Appellant has not demonstrated, by a preponderance of the
evidence, his entitlement to collateral relief on grounds that plea counsel
disregarded a requested appeal. Accordingly, Appellant’s sole appellate issue
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lacks merit. Thus, we grant Attorney Norcini’s petition to withdraw and affirm
the March 12, 2021 order dismissing Appellant’s PCRA petition.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/2021
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