Com. v. Rivera-Morel, G.

J-S77015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY STEVEN RIVERA-MOREL,
Appellant No. 421 MDA 2016
Appeal from the PCRA Order entered January 12, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division, at No(s): CP-22-CR-0002952-2013
CP-22-CR-0003366-212
CP-22-CR-0006033-2013
BEFORE: PANELLA, J., OLSON, J., PLATT, J.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 22, 2016
Gregory Steven Rivera-Morel (“Appellant”) appeals from the order
denying his first petition for relief filed under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The pertinent facts and procedural history are as follows. On March 10,
2014, Appellant entered a negotiated guilty plea at three separate dockets
to various charges including robbery, simple assault, a firearm violation, and
intimidation of a witness. On June 25, 2014, the trial court sentenced
Appellant, in accordance with the plea agreement, to an aggregate term of
____________________________________________

Retired Senior Judge assigned to the Superior Court.
J-S77015-16
seven to fourteen years of imprisonment. Appellant filed neither a post-
sentence motion nor a direct appeal.
On March 23, 2015, Appellant filed a timely pro se PCRA. The PCRA
court appointed counsel and PCRA counsel later filed a supplemental PCRA
petition requesting the reinstatement of Appellant’s direct appeal rights nunc
pro tunc. The PCRA court held an evidentiary hearing. Appellant presented
his own testimony and rebuttal testimony from his mother. Appellant’s trial
counsel also testified. At the conclusion of the hearing, the PCRA court took
the matter under advisement. The PCRA court ultimately dismissed
Appellant’s PCRA petition. This timely appeal follows.
Appellant raises one issue for our review: “Whether [trial] counsel
provided deficient performance when counsel failed to file a Notice of Appeal,
even though Appellant plead guilty, effectively denying Appellant his
Constitutional right to direct appeal.” Appellant’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.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.
2015) (internal citations and quotations omitted).
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It is well settled that
[t]o plead and prove ineffective assistance of counsel a
petitioner must establish: (1) that the underlying issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice resulted from
counsel's act or failure to act.
Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012)
(citation omitted).
Appellant claims that he is entitled to the reinstatement of his direct
appeal rights because he twice asked trial counsel to file an appeal, but was
told that, by entering a negotiated guilty plea, he forfeited his appellate
rights. 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.
Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006).
In the present case, the PCRA court heard the testimony from
Appellant and his mother in support of his claim that he timely requested
trial counsel to file appeal and that trial counsel told him he forfeited his
right to do so because he entered a negotiated guilty plea. Conversely, trial
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counsel testified that Appellant never made such a request and that she
never told him he forfeited his appellate rights by pleading guilty. The PCRA
court resolved this matter of credibility against Appellant:
This [c]ourt finds that [Appellant’s] veracity is in question
in light of his admission that he failed to read his guilty plea
colloquy and failed to question counsel or the court on any
matters he did not understand. It is quite clear from the record
that his appeal rights were presented to him orally by [trial
counsel] prior to and during his court appearance to plead guilty
and in the written plea colloquy. Further, this [c]ourt finds [trial
counsel’s] testimony credible that she discharged her duty to
inform [Appellant] of his appeal rights on multiple occasions but
he failed to request that an appeal be filed. Furthermore, had
[Appellant] forgotten to make such a request during his
sentencing hearing, [trial counsel] followed up with a letter
outlining his rights and met with his mother on more than one
occasion which presented additional opportunities during which
he could have sent a message to counsel regarding his desire [to
file an appeal].
In conclusion, this [c]ourt finds that [Appellant’s] claim of
ineffective assistance of counsel is without merit. Trial counsel
did not fail to file a direct appeal; rather, the evidence shows
that [Appellant] did not request that counsel take such action.
Therefore, the instant Petition should be dismissed.
PCRA Court’s Opinion 1/12/16, at 5-6.
There is record support for the PCRA court’s credibility determinations.
Where there is such support, “we, as a reviewing court, are bound by those
determinations.” Commonwealth v. Abu-Jamal, 720 A.2d 70, (Pa. Super.
1998) (citation omitted). See also Reyes-Rodriguez, 111 A.3d at 779;
Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
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