Com. v. Jordan, M.

J-S36014-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS D. JORDAN, :
:
Appellant. : No. 473 EDA 2017
Appeal from the PCRA Order, January 13, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0009862-2013,
CP-51-CR-0010246-2013, CP-51-CR-0010247-2013,
CP-51-CR-0011620-2010.
BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 18, 2018
Marcus D. Jordan appeals from the order denying his first petition for
relief filed under the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§
9541-46. We affirm.
The PCRA summarized the pertinent facts and procedural history as
follows:
On October 24, 2013, [Jordan] entered non-negotiated
pleas of guilt before the Honorable Chris R. Wogan, on four
separate bills of information, to numerous charges of
[Robbery], Assault and related Weapons Offenses. Judge
Wogan bifurcated [Jordan’s] sentencing, immediately
sentencing him to an aggregate 7 years [of] probation on
the weapons offenses. On April 28, 2014, [Jordan] was
sentenced on the remaining charges, resulting in an
aggregate sentence of 9 to 35 years of incarceration
followed by 27 years of probation.
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[Jordan] subsequently filed a pro se motion to reconsider
sentence, on May 5, 2014, at CP-51-CR-0009862-2013
only. This motion was denied by operation of law on
September 4, [2014].
On August 23, 2015, [Jordan] timely filed the instant pro
se PCRA petition[.] On April 23, 2016, [PCRA counsel] was
appointed as counsel to represent [Jordan] for the purposes
of his PCRA petition. On July 12, 2016, [PCRA counsel] filed
[an] amended PCRA petition and memorandum of law on
[Jordan’s] behalf. On August 2, 2016, the Commonwealth
filed a motion to dismiss [Jordan’s] PCRA petition. On
January 13, [2017], the [PCRA court], after a hearing,
entered an Order dismissing [Jordan’s] PCRA petition as
being without merit.
PCRA Court Opinion, 9/21/17, at 1-2 (footnotes omitted). This timely appeal
follows. Both Jordan and the PCRA court have complied with Pa.R.A.P. 1925.
Jordan raises the following issues:
I. Whether the [PCRA] Court erred in not granting relief
on the PCRA petition alleging trial counsel was
ineffective for not filing a motion for reconsideration.
II. Whether the [PCRA] court erred in not granting relief
on the PCRA petition alleging trial counsel was
ineffective for not filing a direct appeal.
See Jordan’s Brief at 3.
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 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.
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Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(internal citations and quotations omitted).
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. In assessing a claim of ineffectiveness, when it is clear that the petitioner
has failed to meet the prejudice prong, the court may dispose of the claim on
that basis alone, without a determination of whether the first two prongs have
been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).
Counsel cannot be deemed ineffective for failing to pursue a meritless claim.
Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).
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Jordan claims that he is entitled to the reinstatement of his direct appeal
rights because trial counsel failed to file a motion to reconsider his sentence
and a direct appeal, even though he requested him to do so.
In his first issue, Jordan asserts that trial counsel was ineffective for
failing to file a motion for reconsideration of his sentence. He then presents
his entire argument as follows:
[Jordan’s claim of trial counsel’s] ineffectiveness is of
arguable merit. [Jordan] told his attorney on the day he
was sentenced that he wanted him to put in a motion for
reconsideration of sentence. His girlfriend also asked
counsel to do so. To insure that it happened, [Jordan] filed
for reconsideration pro se. [Jordan] then found out later
that [counsel’s motion was not] was put in.
Counsel’s failure to file a motion to reconsider the
sentence is clearly ineffective assistance of counsel. For
starters, counsel’s failure to file a motion to reconsider
[Jordan’s] sentence is of arguable merit. In
Commonwealth v. Eby, 784 A.2d 204 (Pa. Super. 2001)
the Court noted that, “unless the particular facts of the case
in question are distinguishable from the typical case of that
same offense, a sentence within the standard range would
be called for.” [Id. at 208-09]. Counsel’s failure to file a
motion to reconsider is of arguable merit as the
probationary aspect of the sentence clearly was outside of
such guidelines.
Secondly, there was no “reasonable basis” for counsel
not to file a motion to reconsider [Jordan’s] sentence. No
valid reasonable basis was offered by the Commonwealth or
the PCRA Court for this and the Commonwealth neglected
to call Trial Counsel in to testify or rebut [Jordan’s]
contentions at the evidentiary hearing.
Finally, [Jordan] suffered actual prejudice as a result of
counsel’s failure to file a motion to reconsider [his]
sentence. He cannot appeal the sentence to the appellate
court since no reconsideration of sentence was filed.
Because counsel failed to file the Motion as requested, no
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appeal was filed by counsel. Had [counsel] filed the
Reconsideration Motion as requested, he would have known
to file an appeal as [Jordan] asked him if the Motion was
denied.
Jordan’s Brief at 17.
At the January 13, 2017 PCRA hearing, Jordan was the only witness to
testify. Although trial counsel, at the time of the hearing, was working in
another courtroom, Jordan did not call him to testify. After hearing Jordan’s
direct testimony, as well as the Commonwealth’s cross-examination of him,
the PCRA court determined that Jordan could not establish “actual prejudice.”
The court explained:
It is clear from the record that [Jordan] has failed to meet
the third prong of the [ineffectiveness] test, that is, he failed
to establish that there is a reasonable probability that the
act or omission prejudiced [Jordan] in such a way that the
outcome of the proceeding would have been different.”
Prior to accepting his plea, Judge Wogan, after reviewing
the charges against him, noted for the record that [Jordan]
was facing 119 ½ to 239 years, relating only to those
charges to which he was pleading guilty. After an extensive
guilty plea colloquy, Judge Wogan reviewed [Jordan’s] pre-
sentence report, mental health report, argument of counsel
and heard the testimony of both [Jordan] and his mother.
Prior to imposing sentence, Judge Wogan stated for the
record; “My reasons for giving a way below guideline
sentence, which you will hear this again from me throughout
this hearing, is that you’ve pled guilty and accepted
responsibility, which are mitigating factors, and you
appeared to be sincere today in saying that you were sorry
and apologizing to the victims. Although, unfortunately,
they won’t hear that.” The Commonwealth was seeking an
aggregate sentence of 12 ½ to 25 years. However, as
noted, Judge Wogan ultimately imposed a significantly
reduced sentence of 9 to 35 years of incarceration followed
by 27 years of probation.
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Furthermore, [Jordan] concedes that the only relief he
was seeking was a review of his sentence resulting in an
adjustment of his [probationary sentences] to run
concurrently as opposed to consecutively. This is clearly
contrary to Judge Wogan’s expressed intent at sentencing.
As it is clear on the record that [Jordan’s] complaint is
without merit, there was no reason for the Court to receive
trial counsel’s testimony, as it was rendered moot. After a
careful review of the record and given the vicious nature of
[Jordan’s] crimes, the Court concludes that there is no
reasonable probability the outcome of counseled post-
[sentence] motions would have been different had trial
counsel filed such motions seeking reconsideration of
[Jordan’s] sentence.
PCRA Court Opinion, 9/21/17, at 5-6. We agree.
Jordan’s bare assertion that he suffered “actual prejudice” because his
sentencing claim would not be preserved on appeal is unavailing. In Reaves,
923 A.2d 1119 (Pa. 2007), our Supreme Court addressed whether a PCRA
petitioner whose counsel failed to file a motion to reconsider sentence suffered
prejudice. The Superior Court had “summarily concluded” that prejudice was
presumed because counsel’s inaction “effectively waived [Reaves’] right to
challenge this issue on appeal.” Reaves, 923 A.2d at 1123 (citing Reaves,
3190 EDA 2003, unpublished memorandum at 4-5).
Our Supreme Court disagreed. Instead, the Court held that a PCRA
petitioner raising a claim of ineffectiveness regarding counsel’s failure to file
a motion for reconsideration must establish actual prejudice. See Reaves,
923 A.2d at 1130. Specifically, the Court held that a PCRA petitioner must
show that filing the motion would have led to a more favorable sentence:
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The Commonwealth argues that the Superior Court’s
prejudice analysis misses the mark because the panel
improperly focused on the effect of counsel’s inaction upon
the [appeal], rather than looking to the outcome of the
underlying [proceeding] itself. The Commonwealth is
correct. Although contemporaneous objections operate to
preserve issues for appellate review, they serve an equally
important function in obviating appeals by affording the
trial court a timely opportunity to correct mistakes and/or
to reconsider decisions. Whether [counsel] can be deemed
ineffective, then, depends upon whether [a defendant] has
proven that a motion to reconsider sentence if filed . . .
would have led to a different and more favorable outcome
at [sentencing]. In this context, the only way the
proceeding would have been more favorable would be if
counsel’s objection secured a reduction in the sentence. The
Superior Court panel erred as a matter of law in failing to
appreciate the actual focus of the [actual] prejudice
standard.
Reaves, 923 A.2d at 1131-32 (emphasis in original; footnote omitted). Our
Supreme further concluded that Reaves did not establish actual prejudice,
since “[on] this record, there is no reason to believe that, if only counsel had
asked for a statement of reasons for the sentence at the [time of sentencing]
that statement or explanation alone would have led the court to reduce the
sentence”). Id. at 1132.
Here, we agree with the PCRA court that Jordan failed to establish actual
prejudice. Our Supreme Court in Reaves rejected a petitioner’s claim of
actual prejudice based merely upon counsel’s failure to preserve an appellate
issue. Moreover, although Jordan included a Pa.R.A.P. 2119(f) statement in
his brief regarding the discretionary aspects of his sentence, in his
accompanying argument, Jordan does not develop the claim beyond his bare
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assertion that the probationary sentence he received on some of the charges
fell outside the sentencing guidelines. Compare Reaves, 923 A.2d at 1132-
33 (remanding so that this Court may address additional claims of ineffective
assistance Reaves raised involving the discretionary aspects of the sentence
imposed). Jordan has provided no basis to disturb the PCRA court’s
determination that a motion for sentence reconsideration would have resulted
in a reduced sentence.1 Given these circumstances, the PCRA court did not
err in dismissing Jordan’s first ineffectiveness claim.
We next address Jordan’s second claim that trial counsel was ineffective
for failing to file his appeal. As this Court has summarized:
Generally, if counsel ignores a defendant’s request to file
a direct appeal, the defendant is entitled to have his
appellate rights restored. Commonwealth v. Lantzy, 558
Pa. 214, 736 A.2d 564 (1999). In Lantzy, our Supreme
Court held that an unjustified failure to file a direct appeal
upon request is prejudice per se, and if the remaining
requirements are satisfied, a defendant does not have to
demonstrate his innocence or the merits of the issue he
would have pursued on appeal to be entitled to relief.
However, such relief is only appropriate where the petitioner
plead and proves that a timely appeal was in fact requested
and that counsel ignored that request. Commonwealth v.
Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999). A mere
allegation will not suffice to prove that counsel ignored a
petitioner’s request to file an appeal.
____________________________________________
1 Jordan’s bare assertions within his Rule 2119(f) statement that the trial court
“imposed a sentence that was so manifestly excessive as to constitute to
severe a punishment” and that the trial court “did not properly take into
account the rehabilitative needs of [Jordan]” does not alter our conclusion.
See Jordan’s Brief at 14.
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Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006).
In support of this claim, Jordan contends that his testimony that he
requested that trial counsel file an appeal was uncontested. See Jordan’s
Brief at 19. We disagree. Our review of the record reveals that, upon direct
examination, Jordan conceded that, after he was sentenced and informed of
his post-sentence rights, he informed the court that he did not want to file an
appeal. See N.T., 1/13/17, at 12-13. Upon cross-examination, Jordan
acknowledged his statement at sentencing several times. See id., at 17-26.
Moreover, although Jordan faults the Commonwealth for failing to
present trial counsel’s testimony, it is well settled that this burden falls upon
Jordan. See Commonwealth v. Jones, 596 A.2d 885 (Pa. Super. 1991)
(explaining that a PCRA petitioner must produce trial counsel at a PCRA
evidentiary hearing to meet his burden of proof).
Finally, because Jordan acknowledged his prior statements at
sentencing, the PCRA court itself determined that trial counsel’s testimony
was not needed. See N.T., 1/13/17, at 26 (stating, “I don’t know if we have
to hear from [trial counsel] if [Jordan] says he never asked him to file an
appeal”). Given the denial of post-conviction relief, the PCRA court found
Jordan’s prior statements to be credible. Although Jordan testified that he
“didn’t know what was really going on,” and that he was “in a state of shock
during that moment,” when he made these statements at sentencing, we
cannot disturb this credibility determination. This Court “must defer to the
credibility determinations made by the [PCRA] court that observed a witness’s
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demeanor first hand.” Commonwealth v. Todd, 820 A.2d 707, 712 (Pa.
Super. 2003); see also Commonwealth v. Harmon, 738 A.2d 1023, 1025
(Pa. Super. 1999) (explaining that when a PCRA court’s credibility
determination is supported by the record, it cannot be disturbed on appeal).
In sum, the PCRA court correctly determined that Jordan did not
establish either of his claims of trial counsel’s ineffectiveness, and the PCRA
court properly dismissed his amended PCRA petition. We therefore affirm the
PCRA court’s order denying post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/18
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