Com. v. Nelson, D.

J-S95010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONNELL NELSON
Appellant No. 3169 EDA 2015
Appeal from the PCRA Order September 18, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No: CP-39-CR-0000023-2014; CP-39-CR-0000025-
2014; and CP-39-CR-0000027-2014
BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 13, 2017
Appellant Donnell Nelson appeals from the September 18, 2015 order
of the Court of Common Pleas of Lehigh County (“PCRA court”), which
denied his request for collateral relief under the Post Conviction Relief Act
(the “Act”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm
The facts and procedural history of this case are undisputed. Briefly,
on June 12, 2014, Appellant entered into a negotiated plea of nolo
contendere to two counts of persons not to possess firearms, and two counts
of possession of a controlled substance with intent to deliver and received an
aggregate sentence of 4½ to 9 years’ imprisonment. Appellant did not file a
direct appeal. On March 2, 2015, Appellant pro se filed the instant PCRA
petition. The PCRA court appointed counsel, who filed an amended petition,
raising an ineffective assistance of counsel claim. Specifically, Appellant
J-S95010-16
alleged that his trial counsel rendered ineffective assistance by failing to file
a direct appeal.1 On September 15, 2015, the PCRA court held a hearing on
Appellant’s petition, at which his trial counsel testified. Crediting trial
counsel’s testimony, the PCRA court concluded that Appellant failed to
request that an appeal be taken from his judgment of sentence. 2 See N.T.
PCRA Hearing, 9/18/15, at 32-22. In so doing, the PCRA court denied
Appellant relief. Appellant timely appealed to this Court.
On appeal,3 Appellant argues only that the PCRA court “erred by
finding that counsel was not ineffective for failing to take an appeal[.]”
____________________________________________
1
Although not clear from his PCRA petition or appellate brief, we assume
Appellant seeks to have his direct appeal rights reinstated nunc pro tunc.
2
As we explained in Commonwealth v. Spencer, 892 A.2d 840 (Pa.
Super. 2006):
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, 736 A.2d 564 (Pa.
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 of the PCRA 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 appropriate only where
the petitioner pleads 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.
Spencer, 892 A.2d at 842.
3
“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. Widgins, 29 A.3d 816,
819 (Pa. Super. 2011).
-2-
J-S95010-16
Appellant’s Brief at 6. After careful review of the record and the relevant
case law, we conclude that the PCRA court accurately and thoroughly
addressed the merits of Appellant’s claim. See PCRA Court Opinion, 3/8/16,
at 4-10. Accordingly, we affirm the PCRA court’s September 18, 2015 order.
We further direct that a copy of the PCRA court’s March 8, 2016 opinion be
attached to any future filings in this case.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2017
-3-
Circulated 02/28/2017 03:59 PM
IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTHOF PENNSYLVANIA
vs. No. 23, 25, 27 / 2014
DONNELLNELSON,
Appellant • I
:r:
OPINION
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KELLY L. BANACH, J.: :r
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On June 12, 2014, the Appellant entered negotiated nolo contendre p!eas to-;:
one count of Possession of Firearm Prohibited (18 Pa.C.S.A. §6501(a)(l)) in case 23 of
2014, one count of Manufacture, Delivery, or Possession With Intent to Manufacture
or Deliver (35 P.S. §780-113(a)(30)) and one count of Possession of Firearm Prohibited
(18 Pa.C.S.A. §6501(a)(l)) in case 25 of 2014, and one count of Manufacture, Delivery,
or Possession With Intent to Manufacture or Deliver (35 P.S. §780-113(a)(30)) in case
27 of 2014. In exchange for the nolo contendre pleas, the Commonwealth agreed to
bind the Court to minimum sentence of four and one half (4 '12) years, with all cases
and counts running concurrently. On the same date, the Appellant was sentenced to
serve no less than 4 '12 half years nor more than 9 years of incarceration. At the time,
the Appellant was represented by Earl Supplee, Esquire of the Office of the Public
Defender of Lehigh County.
On March 2, 2015, the Appellant filed a prose Petition for Post-Conviction
Relief. Attorney Robert Sletvold, Esquire was appointed to represent the Appellant
and the notes of testimony of the June 12, 2014 Hearing were ordered on March 6,
2015. On June 11, 2015, appointed counsel filed a Motion for Extension of Time to
2
..............
File an Amended PCRAPetition. On June 26, 2015, an Amended PCRAPetition was
filed.
On September 18, 2015, a PCRAHearing was held. Testimony was taken from
the Appellant and his trial counsel, Earl Supplee, Esquire, and arguments were made
by the Commonwealth and PCRACounsel Sletvold. At the conclusion of the hearing,
the Court denied the PCRAPetition.
The Appellant filed an appeal of the PCRAdenial on October 16, 2015 and a
Statement of Matters Complained of on Appeal on the same date. This Opinion
follows.
SUMMARY
OF THE FACTS
At approximately 5:47 p.m. on August 8, 2013, Sergeant KyleHough of the
AllentownPolice Department Vice and Intelligence Unit was conducting a drug
investigation in the area of Fourth and Whitehall Streets, City of Allentown, Lehigh
County, Pennsylvania. Previously, arrangements had been made by a Confidential
Informant (hereinafter «CI'')to call an individual using the street name "Black"to buy
a quantity of crack/cocaine by calling cellular telephone 484-347-5135. Allentown
Policesurveillance units in the area observed the Appellant meet with the CI and make
an exchange. The CI then returned to the police officers after the exchange was
completed and gave a quantity of cocaine to the Allentown Police Department. It field
tested positive for cocaine and weighed two grams. A cellular telephone with number
484-347-5135 was found on Mr. Nelson at a later point in time.
On September 17, 2013, at 11:40 a.m. Allentown Police responded to 325
South West Street, Apartment 1-A,City of Allentown, Lehigh County, Pennsylvania for
a domestic disturbance. It was alleged that the Appellant had a firearm and that he
had assaulted his step-daughter and his wife. The police responded and located a
3
Smith and Wesson .38 revolver with serial number JA2363 in the kitchen area. It was
later determined that the Appellant has a felony burglary conviction from North
Carolina in 1999, which made him a person not permitted to possess a firearm.
On the same date, the Appellant's wife, Denise McCoy, was present at 325
South West Street, Apartment 1-A, and gave consent to the police search that
apartment. A number of items were located inside of the apartment, in addition to the
Smith and Wesson .38 revolver with serial number JA2363. Specifically, in the
bedroom ceiling 20 bags of crack cocaine (weighing 81.2 grams) were found.
Documents belonging to the Appellant were also found in the residence.
During surveillance on September 17, 2013, members of the Lehigh County
Drug Task Force observed the Appellant carry a safe from the residence and place it in
the trunk of a silver Impala. A search warrant for the vehicle and for the safe inside
the trunk was obtained and a .22 caliber revolver, serial number 20025, was located
inside the trunk of the vehicle. Again, based on the 1999 felony burglary conviction,
the Appellant was not permitted to possess a firearm.
DISCUSSION AND CONCLUSIONS OF LAW
In his Statement of Matters Complained of on Appeal, the Appellant argues that
the Court erred when it failed to find trial counsel (Attorney Supplee) ineffective when
he failed to file an Appeal from the judgement of sentence.
At the PCRA Hearing, held on September 18, 2015, the Court heard testimony
from the Appellant, as well as Attorney Supplee. The Appellant testified that he
believed that at the time of sentencing that all of his sentences were going to run
concurrently, including sentences imposed in Northampton County. Immediately after
he was sentenced, the Appellant testified that he spoke to Attorney Supplee while still
4
in the courtroom about filing an Appeal in this matter to ensure that the agreement for
concurrency would be enforced.
On cross-examination, the Appellant admitted that although he was sentenced
in Northampton County on December 13, 2013 for charges of Driving Under the
Influence and Fleeing and Eluding Police, those charges were never discussed at the
time of the nolo contendre plea or at the time of Sentencing. The Appellant indicated
that when he requested Attorney Supplee to file an appeal, immediately following
sentencing while still in the courtroom, he was upset with Attorney Supplee's
representation and not about the time credit issue with Northampton County case and
concurrency with the Lehigh County cases.
The Appellant testified that Attorney Supplee never contacted him regarding an
appeal, but that his family members contacted Attorney Supplee regarding the
Appellant's desire to appeal his sentence. He was unable to tell the Court when the
familymembers attempted contact with Attorney Supplee.
Attorney Supplee was called to testify. He stated that he has been with the
Officeof the Public Defender since 1989 and has participated in thousands of cases.
Attorney Supplee testified that in the Appellant's case, he represented the Appellant
from the time of the Preliminary Hearing and had met with him several times prior to
the Appellant entering his negotiated nolo contendre plea. Attorney Supplee testified
that he had notes in his file that he saw the Appellant after he had returned to the
Lehigh County Jail from a writ lodged by Northampton County. He did not know the
particulars of the case(s) in Northampton County though, nor did he recall if he
discussed the Northampton County charges with the Appellant. He further indicated
that the plea negotiations between the Appellant and the Commonwealth never
included any reference to the Northampton County charges. The negotiated plea
5
included binding the Court to a minimum sentence and for several charges against the
Appellant to be withdrawn.
Attorney Supplee recalled the June 12, 2014 nolo contendre plea and
sentencing hearing. After the sentences in these matters were imposed, Attorney
Supplee testified that:
.. .I told him what I tell my clients after
sentencing. If it's been a binding agreement that the
Court goes along with that, I'll tell them, listen, the
Court went along with the agreement, I don't plan on
filing anything. If you want anything filed, you have
to contact me after the fact.
This was a binding plea. He got the benefit of
the bargain. He accepted it. There's no appeal
issues. So I would have told him, listen, if you want
something done, you've got to contact me.
And he never asked me to file anything. I
would have brought it right to the Court's attention
that if he didn't want the plea to try to withdraw it
right away. There's no rights to appeal, nothing to
file. He did not ask me at all to file an appeal that
day.
N.T. September 18, 2015, 20-21.
Further, Attorney Supplee testified that he had no further contact with Appellant after
the Appellant exited the courtroom on June 12, 2014. Attorney Supplee recalled that
members of the Appellant's family did contact him, but not with regard to the
Appellant's desire to appeal. Rather, they were contacting Attorney Supplee in an
effort to have personal documents recovered during the execution of the search
warrant of the safe returned to the family. "But they never mentioned anything that
Mr. Nelson wanted any kind of appeal." Id.at 22.
"To be eligible for relief, a PCRApetitioner must establish by a preponderance of
the evidence that his conviction or sentence resulted from one or more of the
circumstances enumerated in Section 9543(a)(2)of the PCRA,and that the allegation
of error has not been previously litigated or waived." Commonwealth v. Baumhammers,
6
.. ~.
92 A.3d 708, 714 (Pa. 2014). In the case at bar, the Appellant alleges that his attorney
was ineffective in failing to file an Appeal.
We note that the law presumes that counsel has rendered effective assistance to
his/her client and that the petitioner bears the burden of proving the contrary.
Commonwealth v. Copeland, 554 A.2d 54, 58 (Pa.Super. 1988)(internal citations
omitted); Commonwealth v. Rivers, 786 A.2d 923, 927 (Pa. 2000). Additionally, "[t]o
obtain relief on a claim of ineffective assistance of counsel, a petitioner must
demonstrate that counsel's performance was deficient and that such deficiencies
prejudiced the petitioner." Strickland v. Washington, 466 U.S. 668, 687, (1984). "[A]
petitioner establishes prejudice when he demonstrates 'that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A properly pled claim of ineffectiveness posits that: (1) the
underlying legal issue has arguable merit; (2) counsel's actions lacked an objective
reasonable basis; and (3) actual prejudice befell petitioner from counsel's act or
omission."' Commonwealth v. Tedford, 960 A.2d 1, 12 (Pa. 2008)(citing Strickland at
694). Furthermore, a claim of ineffectiveness must be rejected if the petitioner fails to
satisfy any of the prongs. Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa.Super.
2009). If the appellant is unable to demonstrate prejudice, the first two prongs of the
ineffective examination need not be addressed. Commonwealth v. Chmiel, 889 A.2d
501, 540 (Pa. 2005).
"The right of a criminal defendant to appeal is guaranteed in the Pennsylvania
Constitution, Article V § 9. However, before a court will find ineffectiveness of trial
counsel for failing to file a direct appeal, Appellant must prove that he requested an
appeal and that counsel disregarded this request.'' Commonwealth v. Harmon, 738
A.2d 1023, 1024 (Pa.Super. 1999)(citing Commonwealth v. Lehr, 583 A.2d 1234, 1235
7
(Pa.Super. 1990)). "Mere allegation will not suffice; the burden is on Appellant to plead
and prove that his request for an appeal was ignored or rejected by trial counsel."
Harmon at 1024 (citing Commonwealth v. Collins, 546 Pa. 616, 622, 687 A.2d 1112,
1115 (1996);Commonwealth v. Fanase, 446 Pa.Super. 654, 667 A.2d 1166, 1169
(Pa.Super. 1995)).
"[I]nRoe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, the United States
Supreme Court recognized an ineffectiveassistance of counsel claim based upon trial
counsel's failure to consult with his client concerning the client's right to file a direct
appeal from his judgment of sentence." Commonwealth v. Carter, 21 A.3d 680, 682
(Pa.Super.2011). The Pennsylvania Superior Court "applied Roe to a Pennsylvania
criminal defendant seeking to appeal from his judgment of sentence in Commonwealth
u. Touui, 781 A.2d 1250 (Pa.Super.2001)." Id.at 682-83.
In Roe, the Court began its analysis by determining "whether counsel in fact
consulted with the defendant about an appeal" and defined '"consult' as 'advising the
defendant about the advantages and disadvantages of taking an appeal and making a
reasonable effort to discover the defendant's wishes."' Carter at 683.
If counsel has not consulted with the defendant, the court
must in turn ask a second, and subsidiary, question:
whether counsel's failure to consult with the defendant
itself constitutes deficient performance. That question lies
at the heart of this case: Under what circumstances does
counsel have an obligation to consult with the defendant
about an appeal?
Id. (citingRoe, at 478, 120 S. Ct. 1029).
The Court answered the question by holding:
[C]ounselhas a constitutionally-imposed duty to
consult with the defendant about an appeal when
there is reason to think 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
8
demonstrated to counsel that he was interested in
appealing. In making this determination, courts
must take into account all the information counsel
knew or should have known.
Id. (citing Roe at 480, 120 S. Ct. 1029).
A deficient failure on the part of counsel to consult with the
defendant does not automatically entitle the defendant to
reinstatement of his or her appellate rights; the defendant
must show prejudice. The Roe Court held that "to show
prejudice in these circumstances, a defendant must
demonstrate that there is a reasonable probability that, but
for counsel's deficient failure to consult with him about an
appeal, he would have timely appealed."
Id.
The Appellant argues that Attorney Supplee was ineffectivefor failing to file an
Appealwith the Superior Court. The Appellant testified that he told Attorney Supplee
immediatelyfollowinghis Sentencing Hearing while still in the courtroom that he
wished to Appeal. Further, he suggested that his family members called Attorney
Supplee to tell him that the Appellant wished to file an appeal. The Appellant did not
provide evidence or call any further witnesses at the PCRAHearing to substantiate
either of his assertions of contact. Attorney Supplee indicated that he did not recall
any conversation with the Appellant regarding the Appellant's desire to appeal his
sentence while the Appellant was still in the courtroom. He testified that in situations
where a binding agreement is, in fact, imposed by the Court, it is his practice to
inform his clients that the client must contact Attorney Supplee if he wants additional
motions to be filed. Further, Attorney Supplee recalled that the Appellant's family
members did contact him, but only with regard to retrieving family documents seized
by the police, and that he did, in fact, assist the family with regaining the documents.
In this case, the Appellant failed to provide the Court with any testimony or
evidencethat he contacted Attorney Supplee regarding an appeal. Absent any
indication that the appellant wanted to file an appeal, Attorney Supplee did not have
9
an obligation to consult with him regarding an appeal. Counsel only has a duty to
consult with his client about an appeal when counsel has "reason to think either ( 1)
that a rational defendant would want to appeal ... , or (2) that this particular
defendant reasonably demonstrated to counsel that he was interested in appealing."
Commonwealth v. Carter, 21 A.3d 680, 683 (Pa.Super. 2011).
Attorney Supplee had no reason to think that the Appellant would want to
appeal his sentence. The Appellant plead nolo contendre to specific counts of each of
the Informations, in exchange for the Commonwealth agreeing to bind the Court to a
minimum of 4 Y2 years of incarceration. The Court, following the agreement,
sentenced the Appellant to serve no less than 4 Y2 years nor more than 9 years of
incarceration, to be served concurrently between all counts and cases. When the
Court abided the agreement reached between the Appellant and the Commonwealth,
Attorney Supplee had no reason to believe that the Appellant would want to file an
Appeal. Accordingly, the Appellant's claim that counsel was ineffective for not filing
an appeal is meritless.
Because the Appellant is unable to satisfy the prejudice prong of the
ineffectiveness of counsel test, we need not explore the remaining two prongs of the
analysis.
CONCLUSION
For all of the foregoing reasons, the Court believes that the Appellant's claims of
ineffectiveness of trial counsel are without merit and that the decision to deny the
instant PCRA Petition should be affirmed.
By the Court:
KeilyL.Bach, J.
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