Com. v. Hann, K.

J-S07044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KELCEY LEE HANN
Appellant No. 898 MDA 2014
Appeal from the PCRA Order April 28, 2014
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001262-2010
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED APRIL 17, 2015
Kelcey Lee Hann appeals from the order entered April 28, 2014, in the
Court of Common Pleas of Franklin County, denying, after a hearing, his first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §
9541 et seq. Hann seeks relief from the December 14, 2011, judgment of
sentence of five to ten years’ imprisonment, imposed after a jury found him
guilty of one count of aggravated assault.1 In this appeal, Hann’s sole claim
is that trial counsel was ineffective for failing to perfect a direct appeal to
this Court, as requested.2 For the reasons set forth below, we affirm.
____________________________________________
1
18 Pa.C.S. § 2702(a)(1).
2
Hann preserved this issue by timely complying with the order of the PCRA
court to file a statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b).
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The PCRA court concisely set forth the background of this case, which
we incorporate by reference. See PCRA Court Opinion, 4/28/2014, at 1–2.
The principles that guide our review are as follows:
On appeal from the denial of PCRA relief, our standard of review
requires us to determine whether the ruling of the PCRA court is
supported by the record and free of legal error. Commonwealth
v. Washington, 592 Pa. 698, 927 A.2d 586, 593-94 (Pa. 2007).
To be eligible for relief based on a claim of ineffective assistance
of counsel, a PCRA petitioner must demonstrate by a
preponderance of the evidence that (1) the underlying claim is of
arguable merit; (2) no reasonable basis existed for counsel's
action or omission; and (3) there is a reasonable probability that
the result of the proceeding would have been different absent
such error. Commonwealth v. Steele, 599 Pa. 341, 961 A.2d
786, 796 (Pa. 2008).
Commonwealth v. Widgins, 29 A.3d 816, 819 (Pa. Super. 2011).
It is well settled that the unjustified failure to file a requested direct
appeal is ineffective assistance of counsel per se and that an appellant need
not show that he likely would have succeeded on appeal in order to meet the
prejudice prong of the test for ineffectiveness. Commonwealth v. Bath,
907 A.2d 619, 622 (Pa. Super. 2006), appeal denied, 918 A.2d 741 (Pa.
2007). However, “[b]efore a court will find ineffectiveness of counsel for
failing to file a direct appeal, the defendant must prove that he requested an
appeal and that counsel disregarded that request.” Id. (citation omitted).
At the December 27, 2013, PCRA hearing, trial counsel, Karl Rominger,
Esquire, who was retained by Hann’s mother, testified regarding his
discussion of a direct appeal with Hann’s family. He stated, “[W]hen we got
the denial [of the post sentence motion] … they [Hann’s parent’s] were
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going to decide whether they wanted to pay for the appeal or whether he
was going to serve his time, and I indicated to them that they needed to let
me know what he wanted to do, and I would act accordingly, and I never
heard back from them.” N.T., 12/27/2014, at 22. Hann, in his testimony,
stated that after sentencing, trial counsel “said that he was going to file
motions, and see what happened with that, then he was going to file my
appeal.” Id. at 45. Hann further testified that after the trial court granted
his post-sentence motion for bail, trial counsel told him “to go home and
spend time with your family and if we get the appeal granted, which means
… a new trial, then we’ll be talking about the payments ….” Id. at 48.
The PCRA court found Hann’s testimony lacking in credibility, found
trial counsel’s testimony to be credible, and concluded no relief was due on
Hann’s claim of ineffectiveness for failure to file a direct appeal. The PCRA
Court, in support of its determination, opined:
In considering [Hann’s] credibility we assessed his demeanor, his
apparent uncertainty in what he wanted to say, and the overall
shaky delivery of his testimony. In the Court’s experience it
would seem exceptionally unlikely that an attorney that is
privately retained for a fee would offer to go through an entire
appeal process without requiring any payment or even
discussing payment with the client until after an appeal is
granted as [Hann] suggests was the case with Attorney
Rominger. As such, we do not believe [Hann’s] testimony in
regards to his conversations with trial counsel.
At the PCRA hearing trial counsel testified that he had
spoken with [Hann’s] family members immediately after
[Hann’s] sentencing hearing about the filing of a direct appeal.
Attorney Rominger testified that “the family was trying to decide
whether they wanted to pay for an appeal or not or whether he
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wanted to start serving his time and be done with his sentence.”
He further testified that he met with [Hann’s] family members
instead of [Hann] directly because he did not know [Hann] had
been released on bail. Attorney Rominger met with [Hann’s]
family members on a couple of occasions where “[he] indicated
to them that they needed to let [him] know what [Hann]
wanted to do, and [he] would act accordingly, and [he] never
heard back from them.” Moreover, Attorney Rominger testified
that [Hann’s] fee agreement did not include the cost of an
appeal, as is the regular practice at his firm. He testified, “[w]e
make that very clear that you are hiring us for either a resolution
short of jury trial or a jury trial, and either one would include
sentencing.” Attorney Rominger uses a separate fee agreement
for post-trial matters including appeals. He indicated that he told
[Hann’s] family that he would charge about $2000 to file an
appeal and such fee was never paid, as admitted to in [Hann’s]
own testimony.
Upon review of the record and consideration of the
testimony taken at the PCRA hearing we make the following
findings of fact. [Hann] retained Attorney Rominger throughout
his trial as a private attorney meaning his representation as
counsel was based on fee agreements. This is not the case
where trial counsel was appointed and it is expected that
appointed counsel continue representation after sentencing. The
original fee agreement was for representation throughout trial
and did not include representation on appeal, as is the regular
practice of Attorney Rominger’s firm. Furthermore, from the
outset of his representation[,] Attorney Rominger had
communicated with [Hann’s] family in regards to Attorney
Rominger’s representation of [Hann]. [Hann] even testified that
his mother was the one who hired Attorney Rominger. Attorney
Rominger met with [Hann’s] family on multiple occasions,
advised them that the cost of an appeal would be about $2000
and that they needed to inform him as to whether they wanted
to proceed with an appeal. [Hann’s] family indicated to trial
counsel that they were not sure if they wanted to pay for an
appeal or whether [Hann] would just serve his sentence. [Hann]
and his family never paid a fee to Attorney Rominger for the
filing of an appeal, as made clear by [Hann’s] own testimony.
[Hann] bears the burden of demonstrating that he
requested an appeal. [Hann’s] failure and his family’s failure to
pay any money towards an appeal is strong circumstantial
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evidence against a showing of an affirmative request for appeal.
The initial fee agreement and the fact that [Hann’s] family was
informed of the cost of appeal put [Hann] on notice that
representation by trial counsel did not automatically carry over
to an appeal, as a new fee agreement was required for
representation on appeal. While trial counsel informed the Court
during the sentencing hearing that he was intending on filing an
appeal, it was clearly subject to a request by [Hann] or [Hann’s]
family pursuant to his discussion with [Hann’s] family directly
after the sentencing hearing where trial counsel told [Hann’s]
family they needed to let him know if they wanted to file an
appeal. [Hann] and his family never made such a request.
As discussed earlier, we find [Hann’s] testimony relating to
his conversations with Attorney Rominger relating to the filing of
an appeal to be incredible. Even if we were to believe [Hann’s]
testimony, his interaction with Attorney Rominger after the bail
and restitution hearing did not amount to a request to file an
appeal. While it may suggest the mere possibility of filing an
appeal, the testimony does not indicate that [Hann] actually
requested Attorney Rominger to proceed with the filing of an
appeal.
It is [Hann’s] burden to establish that he actually requested trial
counsel to file an appeal. In light of the evidence before the
Court, including testimony taken at the PCRA hearing, [Hann]
has failed to meet his burden. Attorney Rominger’s decision not
to file an appeal to the Superior Court was justified as he was
not requested to do so. Therefore, [Hann’s] ineffective
assistance of counsel claim based on trial counsel’s failure to file
an appeal must fail.
PCRA Court Opinion, 4/28/2014, at 4–7.
In light of the conflicting testimony presented at the PCRA hearing, we
apply the following legal maxim. “The PCRA court’s credibility
determinations are binding on this Court, where the record supports those
determinations.” Widgins, supra, 29 A.3d at 820 (citation omitted). See
also Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011) (appellate
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courts are required to give great deference to a PCRA court’s credibility
determinations, and if supported by the record, the determinations are
binding on a reviewing court). Our review confirms that the PCRA court’s
findings and determinations are supported by the record and, therefore, we
must accept them. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2015
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