Com. v. Weaver, D.

J-S24045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONEZ S. WEAVER, :
:
Appellant : No. 11 MDA 2018
Appeal from the PCRA Order December 18, 2017
in the Court of Common Pleas of Berks County,
Criminal Division at No(s): CP-06-CR-0001794-2013
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 15, 2018
Donez S. Weaver (“Weaver”) appeals from the Order denying his first
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In August 2015, a jury convicted Weaver of two counts each of
possession with intent to deliver a controlled substance and possession of a
controlled substance.1 The matter proceeded to a sentencing hearing on
September 17, 2015, wherein Weaver was represented by retained counsel,
Elizabeth Ebner, Esquire (hereinafter “trial counsel”). The trial court imposed
an aggregate term of 63 to 126 months in prison. Trial counsel then stated
to the trial court that she had advised Weaver of his post-sentence and appeal
____________________________________________
1 See 35 P.S. § 780-113(a)(30), (16).
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rights, and that Weaver had signed a written Notice detailing said rights.
Notably to the instant appeal, trial counsel did not file a direct appeal.
On March 4, 2016, Weaver, pro se, filed a timely PCRA Petition, in
response to which the PCRA court appointed him PCRA counsel. PCRA counsel
thereafter filed an Amended PCRA Petition, asserting that trial counsel was
ineffective for failing to file a requested direct appeal. The Commonwealth
filed an Answer to the Amended Petition, after which the PCRA court scheduled
an evidentiary hearing.
At the August 8, 2017 evidentiary hearing (hereinafter “the PCRA
hearing”), Weaver testified that he had instructed trial counsel that he wanted
to file a direct appeal immediately after the jury rendered its verdict. In
contrast, trial counsel testified that Weaver never instructed her to file an
appeal. The PCRA court summarized the relevant testimony at the PCRA
hearing as follows:
According to [Weaver’s] testimony at the … PCRA hearing, he did
not have any discussions about an appeal with [trial counsel]
before, during, or after the sentencing hearing. [Trial counsel]
testified that she had an appeal discussion with [Weaver] at the
sentencing hearing. [Trial counsel] reviewed the written [N]otice
of post-sentence rights with [Weaver], which included information
regarding the time limits for filing post-sentence motions and an
appeal. [Weaver] and [trial] counsel both signed this written
[N]otice. Upon conclusion of the sentencing hearing, [trial counsel
asserted, Weaver] asked [trial] counsel what she thought about
an appeal. [Trial c]ounsel shared her opinion that she did not
think an appeal would be successful. [Weaver] told [trial] counsel
that he would let her know if he wanted to appeal. Had [Weaver]
informed [trial] counsel that he wanted to appeal, [trial counsel
maintained, she] would have filed the appeal to preserve his rights
despite being owed counsel fees. [Trial c]ounsel heard nothing
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from [Weaver], and her file[] contains no notes, correspondence,
or other indication that [Weaver] wanted to appeal.
PCRA Court Memorandum and Order, 12/18/17, at 1-2.
On December 18, 2017, the PCRA court denied Weaver’s PCRA Petition.
Weaver then filed a timely Notice of Appeal.
Weaver now presents the following question for our review:
Whether the PCRA court erred in dismissing the Amended PCRA
Petition when there was an unjustified failure by trial counsel to
properly consult with [Weaver] about whether to file a direct
appeal and, thereafter[,] failing to file the appeal, which denied
[Weaver] the effective assistance of counsel guaranteed by the
Sixth Amendment to the U.S. Constitution and Article I, Section 9
of the Pennsylvania Constitution[,] as well as the right to direct
appeal under Article V, Section 9[,] and constituted prejudice for
the purposes of 42 Pa.C.S.A. § 9543(a)(2)(ii)?
Brief for Appellant at 2 (capitalization omitted).
When reviewing an order denying a PCRA petition, we examine whether
the determination of the PCRA court is supported by the record and free of
legal error. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).
Moreover, it is well established that a “PCRA court’s credibility determinations,
when supported by the record, are binding on this Court[.]” Commonwealth
v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014) (citation omitted).
To be entitled to relief for 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 failure to act; 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
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A.3d 435, 444 (Pa. 2015). Failure to satisfy any of the three 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 be effective, and it is solely
the petitioner’s burden to prove ineffectiveness. See id.
Regarding an ineffectiveness claim based on counsel’s failure to file a
direct appeal, we observe that “Article V, Section 9 of the Pennsylvania
Constitution guarantees a direct appeal as of right.” Commonwealth v.
Lantzy, 736 A.2d 564, 571 (Pa. 1999). “[W]hen a lawyer fails to file a direct
appeal requested by the defendant, the defendant is automatically entitled to
reinstatement of his direct appeal rights.” Commonwealth v. Markowitz,
32 A.3d 706, 714 (Pa. Super. 2011). A PCRA petitioner “has the burden of
proving that he requested a direct appeal and that his counsel heard but
ignored or rejected the request.” Commonwealth v. Maynard, 900 A.2d
395, 398 (Pa. Super. 2006); see also Commonwealth v. Harmon, 738 A.2d
1023, 1024 (Pa. Super. 1999) (stating that “[m]ere allegations will not
suffice.”).
However, even where a defendant does not ask his or her attorney to
file a direct appeal, counsel may still be ineffective if counsel does not consult
with the client about his or her appellate rights. Markowitz, 32 A.3d at
714 (citing Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)); see also
Commonwealth v. Green, 168 A.3d 173, 177 (Pa. Super. 2017) (stating
that “the question is not simply whether consultation occurred, it is whether
that consultation was adequate within the meaning of that term as expressed
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in Flores-Ortega[,]” which “makes plain that the consultation must, at
minimum, encompass advice regarding an actual appeal, not simply how to
preserve issues for a theoretical appeal.”).
Here, Weaver argues that trial counsel was ineffective for failing to (1)
file an appeal in response to Weaver’s request; and (2) adequately consult
with Weaver concerning an appeal, in accordance with Flores-Ortega and its
progeny. See Brief for Appellant at 5-14. Weaver contends that pursuant to
case law, there is an “onus [placed] on [criminal] defense counsel to do more
than have a perfunctory discussion with a defendant about his appeal
rights[,]” and PCRA relief will be granted “when counsel fell short of an
adequate … consultation with a defendant about whether he wants to file an
appeal.” Id. at 9-10 (citing, inter alia, Flores-Ortega). In arguing that trial
counsel’s consultation was insufficient, Weaver contends that trial counsel’s
“brief discussion with [Weaver] about whether to file an appeal took place in
the holding area of the courtroom after sentencing, but she never discussed
the advantages or disadvantages of filing an appeal with [Weaver].” Id. at
12. Additionally, Weaver complains that trial counsel
certainly knew that [Weaver’s] appeal rights would expire if no
action was taken, yet she tried to lay the responsibility on
[Weaver] by saying that she told him she would wait to hear from
him[, i.e., regarding whether he wanted to file an appeal,] rather
than making an affirmative effort to consult with him about filing
an appeal. [Trial counsel] did not even contact [Weaver] after
trial or sentencing.
Id.
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In rejecting Weaver’s claim of trial counsel’s ineffectiveness, the PCRA
court reasoned as follows:
[Weaver] inconsistently testified that he told [trial] counsel[,]
after the guilty verdict[,] that he wanted to appeal and also,
incredibly, that he did not have any appeal-related discussions
with [trial] counsel before, during, or after the sentencing hearing.
[Trial c]ounsel credibly testified that she discussed the merits of
an appeal with [Weaver] after he was sentenced. [Trial c]ounsel’s
testimony is supported by the record[] containing a written
[N]otice to [Weaver] that set forth his right to appeal, which
[N]otice bears his signature, and which [N]otice he acknowledged
receiving on the record in open court.
Having consulted with [Weaver] about the merits of an
appeal[,] and having left that consultation with [Weaver’s]
comment that he would contact [trial counsel] about an appeal if
he wanted one, [trial] counsel met her duty as an advocate and
was justified in waiting for express direction from [Weaver] if he
wished to appeal. [Weaver] did not meet his burden of proving
that he gave [trial counsel] an express direction to file an appeal
after their September 17, 2015 (day of sentencing) discussion.
PCRA Court Memorandum and Order, 12/18/17, at 3.
The PCRA court chose to find credible the testimony presented by trial
counsel, and, since the certified record supports the PCRA court’s findings, we
are bound by its credibility determinations. See Mitchell, supra; see also
Green, 168 A.3d at 177 (stating that “we are bound by the credibility
determination [of the PCRA court] that a conversation between [defense]
counsel and [a]ppellant regarding appellate rights occurred.”).
Moreover, contrary to Weaver’s claim, the record reveals that trial
counsel sufficiently consulted with Weaver concerning an appeal, unlike the
facts in the cases upon which Weaver relies. Cf. Green, 168 A.3d at 177
(holding that defense counsel was ineffective where his consultation with
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defendant regarding his appeal rights and issue preservation was inadequate);
Commonwealth v. Rivera, 154 A.3d 370, 378 (Pa. Super. 2017) (en banc)
(stating that “plea counsel was ineffective for failing to consult with Rivera
regarding whether he wished to appeal the non-frivolous issue concerning the
legality of his negotiated sentence”); Commonwealth v. Donaghy, 33 A.3d
12, 16 (Pa. Super. 2011) (holding that defense counsel was ineffective where
defendant had sent counsel a letter that “sufficiently demonstrated a desire
to appeal, such that counsel should have made a reasonable effort to discover
[defendant’s] wishes[,] as required under Flores-Ortega.”) (quotation marks
omitted).
In the instant case, trial counsel testified that, after she had advised
Weaver of his appeal rights via the written rights Notice, she expressly
answered Weaver’s question concerning the potential for success on appeal.
See N.T., 8/8/17, at 17 (wherein trial counsel testified (which testimony the
PCRA court found credible) that: (1) she replied to Weaver that there was
little chance of a successful appeal, particularly in light of the fact that a
defense witness had presented trial testimony that was harmful to the
defense; and (2) Weaver had expressed his agreement with this assessment
of the impact of the defense witness’s testimony). Moreover, according to
trial counsel’s testimony, she told Weaver to contact her if he desired her to
file an appeal, but he never contacted her. Id. Therefore, the record reflects
that trial counsel sufficiently consulted with Weaver about his appellate rights
and the merits of an appeal. See Markowitz, supra; Green, supra.
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Accordingly, we conclude that Weaver’s claim that trial counsel was
ineffective for failing to file a requested direct appeal lacks merit. The PCRA
court did not err in denying Weaver’s first PCRA Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/15/2018
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