Com. v. Greenawalt, L.

J-S15039-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LONNIE DEAN GREENAWALT, JR. :
:
Appellant : Nos. 1433-1440 WDA 2018
Appeal from the PCRA Order Entered September 17, 2018
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000346-2016;
CP-26-CR-0001469-2016; CP-26-CR-0001470-2016;
CP-26-CR-0001471-2016; CP-26-CR-0001472-2016;
CP-26-CR-0001707-2016; CP-26-CR-0001730-2016;
CP-26-CR-0002149-2016
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED JUNE 04, 2019
Appellant, Lonnie Dean Greenawalt, Jr., appeals from the orders entered
in the Fayette County Court of Common Pleas, which dismissed his first
petition brought pursuant to the Post Conviction Relief Act (“PCRA”). 1 We
affirm.
The relevant facts and procedural history of this case are as follows. On
November 8, 2016, Appellant entered a negotiated guilty plea at eight
separate docket numbers to numerous crimes including, but not limited to,
burglary, criminal trespass, theft, aggravated assault by vehicle while driving
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
___________________
*Retired Senior Judge assigned to the Superior Court.
J-S15039-19
under the influence of alcohol or a controlled substance, and careless driving.
At the plea hearing, the parties agreed Appellant was entering the guilty pleas
in exchange for a “package deal” of an aggregate 10 to 20 years’
imprisonment at all dockets. The court accepted Appellant’s plea as knowing,
intelligent, and voluntary. On December 15, 2016, the court sentenced
Appellant to the negotiated aggregate sentence of 10 to 20 years’
incarceration. Appellant did not file post-sentence motions or a direct appeal.
On December 14, 2017, Appellant timely filed a pro se PCRA petition.
The court appointed counsel the next day, who filed an amended PCRA petition
on March 22, 2018. The court held a PCRA hearing on May 14, 2018, at which
Appellant and plea counsel testified.2 Appellant testified, inter alia, that he
asked counsel to file post-sentence motions and a direct appeal on his behalf
at the conclusion of the sentencing hearing. Appellant claimed he saw a
defense investigator about a week after sentencing and inquired about his
post-sentence motions and direct appeal. Appellant said he also wrote counsel
two letters after the sentencing hearing to check the status of those filings but
received no response. Appellant conceded he did not have copies of the
letters. Appellant insisted he wanted to challenge the 10-to-20 year sentence,
where Appellant believed he would receive only an aggregate sentence of 7 to
14 years. (See N.T. PCRA Hearing, 5/14/18, at 4-13).
____________________________________________
2Appellant was represented by different attorneys in the Public Defender’s
Office at the plea and sentencing proceedings. Sentencing counsel was
deceased at the time of the PCRA hearing.
-2-
J-S15039-19
Plea counsel testified, inter alia, that Appellant knew he would receive a
package plea deal of 10 to 20 years’ imprisonment in exchange for his guilty
pleas at the eight dockets. Plea counsel said Appellant’s file did not contain
any letters from Appellant following sentencing. Plea counsel explained the
Public Defender’s Office does not destroy letters from a client. Plea counsel
confirmed there was no indication that Appellant had requested, formally or
informally, to file post-sentence motions or a direct appeal. (See id. at 14-
18).
On September 17, 2018, the PCRA court denied relief. In its order and
opinion denying relief, the court expressly stated it found Appellant’s
testimony incredible and plea counsel’s testimony credible. Appellant timely
filed a notice of appeal at each underlying docket on October 4, 2018, 3 along
with a voluntary concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b).
Appellant raises two issues for our review:
WHETHER THE PCRA COURT ERRED IN NOT FINDING [PLEA
COUNSEL] INEFFECTIVE FOR FAILING TO FILE A MOTION
FOR MODIFICATION OF SENTENCE?
WHETHER THE PCRA COURT ERRED IN NOT FINDING [PLEA
COUNSEL] INEFFECTIVE FOR FAILING TO FILE A NOTICE OF
APPEAL ON APPELLANT’S BEHALF?
____________________________________________
3 See Commonwealth v. Walker, ___ Pa. ___, 185 A.3d 969 (2018)
(requiring separate notices of appeal from single orders which resolve issues
arising on separate trial court docket numbers). This Court sua sponte
consolidated the appeals.
-3-
J-S15039-19
(Appellant’s Brief at 3).4
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d
319 (2008). This Court grants great deference to the findings of the PCRA
court if the record contains any support for those findings. Commonwealth
v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
A.2d 74 (2007). If the record supports a post-conviction court’s credibility
determination, it is binding on the appellate court. Commonwealth v.
Dennis, 609 Pa. 442, 17 A.3d 297 (2011).
Appellant argues he asked sentencing counsel to file post-sentence
motions and a direct appeal on his behalf. Appellant claims counsel had no
reasonable basis for failing to file post-sentence motions and an appeal after
Appellant made repeated requests for counsel to do so. Appellant insists
prejudice is presumed in this case because counsel’s ineffectiveness resulted
in the denial of Appellant’s right to pursue direct appellate relief. Appellant
concludes the court erred by dismissing his PCRA petition, and this Court must
vacate and remand for reinstatement of Appellant’s right to file post-sentence
____________________________________________
4 Appellant combines his questions presented into one argument section,
which is a technical violation of the rules of appellate procedure. See
Pa.R.A.P. 2119(a) (stating argument section shall be divided into as many
parts as there are questions to be argued).
-4-
J-S15039-19
motions and a direct appeal nunc pro tunc. We disagree.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),
appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). Generally, when asserting
a claim of ineffective assistance of counsel, the petitioner is required to plead
and prove: (1) the underlying claim has arguable merit; (2) counsel had no
reasonable strategic basis for her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability the outcome of the
proceedings would have been different. Commonwealth v. Turetsky, 925
A.2d 876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).
“Actual or constructive denial of the assistance of counsel, however, falls
within a narrow category of circumstances in which prejudice is legally
presumed.” Commonwealth v. Lane, 81 A.3d 974, 978 (Pa.Super. 2013),
appeal denied, 625 Pa. 658, 92 A.3d 811 (2014). Our Supreme Court has
held:
[W]here there is an unjustified failure to file a requested
direct appeal, the conduct of counsel falls beneath the range
of competence demanded of attorneys in criminal cases,
denies the accused the assistance of counsel guaranteed by
the Sixth Amendment to the United States Constitution and
Article I, Section 9 of the Pennsylvania Constitution, as well
as the right to direct appeal under Article V, Section 9, and
constitutes prejudice for purposes of Section 9543(a)(2)(ii).
Therefore, in such circumstances, and where the remaining
requirements of the PCRA are satisfied, the petitioner is not
required to establish his innocence or demonstrate the
merits of the issue or issues which would have been raised
on appeal.
-5-
J-S15039-19
Commonwealth v. Lantzy, 558 Pa. 214, 226-27, 736 A.2d 564, 572 (1999)
(internal footnote omitted). In other words, if counsel neglects to file a
requested direct appeal, “counsel is per se ineffective as the defendant was
left with the functional equivalent of no counsel.” Commonwealth v.
Markowitz, 32 A.3d 706, 715 (Pa.Super. 2011), appeal denied, 615 Pa. 764,
40 A.3d 1235 (2012).
Even if a defendant does not expressly ask counsel to file a direct appeal,
counsel still has a duty “to adequately consult with the defendant as to the
advantages and disadvantages of an appeal where there is reason to think
that a defendant would want to appeal.” Commonwealth v. Bath, 907
A.2d 619, 623 (Pa.Super. 2006), appeal denied, 591 Pa. 695, 918 A.2d 741(2007) (emphasis added). Where the defendant did not request counsel to
file a direct appeal but counsel failed to consult with the defendant, counsel is
not per se ineffective and the court applies the traditional three-prong test “to
decide whether counsel rendered constitutionally ineffective assistance by
failing to advise [the] client about his appellate rights.” Markowitz, supra
at 716.
Pursuant to [Roe v. Flores-Ortega, 528 U.S. 470, 120
S.Ct. 1029, 145 L.Ed.2d 985 (2000) and its Pennsylvania
expression, Commonwealth v. Touw, 781 A.2d 1250(Pa.Super. 2001)], counsel has a constitutional duty to
consult with a defendant about an appeal where counsel has
reason to believe 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.” [Id.] at 1254 (quoting Roe[,
-6-
J-S15039-19
supra] at 480, 120 S.Ct. [at 1036]).
Bath, supra at 623. “Where a petitioner can prove either factor, he
establishes that his claim has arguable merit.” Markowitz, supra at 716.
Prejudice in this context means a defendant must show a reasonable
probability that, but for counsel’s failure to consult, the defendant would have
sought additional review. Touw, supra at 1254.
Likewise, where counsel fails to file requested post-sentence motions,
the traditional three-prong test applies to determine whether counsel was
ineffective. Commonwealth v. Grosella, 902 A.2d 1290 (Pa.Super. 2006)
(distinguishing between counsel’s failure to file direct appeal which completely
forecloses appellant from direct review and counsel’s failure to file post-
sentence motions which narrows ambit of claims appellant can raise on direct
appeal). See also Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119(2007) (holding defendant must satisfy traditional three-prong ineffectiveness
test concerning counsel’s failure to file post-sentence motions).
Instantly, the PCRA court expressly rejected Appellant’s testimony that
he had asked counsel to file post-sentence motions and/or a direct appeal
after sentencing. Rather, the court found plea counsel’s testimony credible
that nothing in Appellant’s file indicated Appellant had made any request,
formally or informally, for counsel to file post-sentence motions and/or a direct
appeal. Plea counsel also testified that Appellant knew the terms of the plea
bargain called for a negotiated sentence of 10 to 20 years. We are bound by
-7-
J-S15039-19
the PCRA court’s credibility determinations. See Dennis, supra. Thus,
counsel cannot be deemed per se ineffective for failing to file a direct appeal
or ineffective under the traditional three-prong test for failing to file post-
sentence motions. See Lantzy, supra; Lane, supra; Markowitz, supra.See also Reaves, supra; Grosella, supra.Additionally, given the guilty plea and negotiated sentence, the only
issues Appellant could raise on appeal would have been the jurisdiction of the
court, the validity of the guilty plea, or the legality of his sentence. See
Commonwealth v. Eisenberg, 626 Pa. 512, 98 A.3d 1268 (2014) (stating
upon entry of guilty plea, defendant waives all claims and defenses, except
those surrounding jurisdiction of court, validity of plea, and legality of
sentence imposed); Commonwealth v. Reid, 117 A.3d 777 (Pa.Super.
2015) (explaining upon entry of guilty plea followed by imposition of
specifically negotiated sentence, defendant waives challenge to discretionary
aspects of sentencing).
Here, Appellant does not contend, and nothing in the record suggests,
that the trial court lacked jurisdiction or that the sentence is illegal. Further,
the record makes clear Appellant entered his guilty plea in exchange for a
“package deal” aggregate sentence of 10 to 20 years’ imprisonment at all
dockets. The court subsequently imposed the specifically negotiated
sentence, so Appellant received the benefit of his bargain. Under these
circumstances, counsel would have had no reason to think Appellant wanted
-8-
J-S15039-19
to challenge the sentence; and Appellant failed to demonstrate he was
interested in an appeal. See Bath, supra. Thus, the PCRA court properly
denied relief on the grounds asserted. Accordingly, we affirm.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/2019
-9-