Com. v. Rentas-Torres, J.

J-S36009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE RENTAS-TORRES :
:
Appellant : No. 294 EDA 2021
Appeal from the PCRA Order Entered January 6, 2021
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0001062-2018
BEFORE: LAZARUS, J., KING, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 10, 2021
Jose Rentas-Torres appeals from the order, entered in the Court of
Common Pleas of Northampton County, denying his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After
our review, we reverse and remand for the reinstatement, nunc pro tunc, of
Rentas-Torres’ post-sentence and direct appellate rights.
The PCRA court set forth the relevant factual and procedural history of
this case as follows:
On June 21, 2018, [Rentas-Torres] entered a negotiated guilty
plea to a single count of terroristic threats as a misdemeanor of
the first degree. The information charged [Rentas-Torres] as a
result of a domestic dispute with his girlfriend. On the same day,
[Rentas-Torres] was sentenced to six to twelve months in
Northampton County Prison followed by twelve months of
probation.
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* Retired Senior Judge assigned to the Superior Court.
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[Rentas-Torres] was granted parole on August 31, 2018. On
August 19, 2019, a Petition for Review of Probation/Parole was
filed with the court based upon [Rentas-Torres] receiving new
charges. A Gagnon II hearing was originally scheduled for March
11, 2020, but the matter was continued generally, pending
resolution of [Rentas-Torres’] new charges.
On July 22, 2020, a Gagnon II hearing was held before the court.
At the hearing, [Rentas-Torres] was represented by Assistant
Public Defender Anthony E. Rybak[, Esquire]. The evidence
established that [Rentas-Torres] had received new charges on
August 7, 2019, for possession with intent to deliver and criminal
use of a communication facility. Two weeks prior to the Gagnon
II hearing, [Rentas-Torres] pleaded guilty to criminal use of a
communication facility and was sentenced to one year less two
days to two years less one day in Northampton County Prison,
followed by two years of probation. The evidence also established
that, while he was on supervision, [Rentas-Torres] missed forty-
one of his scheduled drug tests and tested positive for opiates
days before his arrest on the new charges. [Rentas-Torres] has
a significant prior record, including convictions for possession with
intent to deliver, burglary, criminal trespass, false reports, simple
possession, theft, false identification to law enforcement, and
terroristic threats.
After finding that [Rentas-Torres] violated his probation, the court
revoked his probation and resentenced him to eighteen to thirty-
six months in state prison, concurrent to the sentence imposed in
his new case, with credit for time served. After [Rentas-Torres]
refused to sign a form outlining his post-sentence rights, the court
advised [Rentas-Torres] of those rights on the record.
[Rentas-Torres] did not ask Attorney Rybak to file a post-sentence
motion. No such motion was filed by [Rentas-Torres]. Rather,
the day after the Gagnon II hearing, [Rentas-Torres] filed a pro
se [PCRA petition]. One week later, [Rentas-Torres] filed a pro se
appeal to the Superior Court. Unaware of the appeal, on August
3, 2020, the court appointed counsel to represent [Rentas-Torres]
with regard to his [PCRA petition].
On August 18, 2020, the court appointed the same counsel to
represent [Rentas-Torres] with regard to his appeal. On October
1, 2020, the court entered an order denying [Rentas-Torres PCRA
relief]. On November 2, 2020, [Rentas-Torres’] appeal to the
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Superior Court was discontinued at the request of his court-
appointed counsel.
On November 6, 2020, [Rentas-Torres’] counsel filed the instant
[amended PCRA petition], in which he alleges that Attorney Rybak
was ineffective in representing [Rentas-Torres] at his Gagnon II
hearing and by failing to file a post-sentence motion and/or an
appeal from the sentence imposed at that hearing.
A hearing on [Rentas-Torres’ PCRA petition] was held on January
6, 2021. At the conclusion of that hearing, [Rentas-Torres’]
counsel advanced two arguments: first, that Attorney Rybak was
ineffective in failing to make a meaningful presentation on
[Rentas-Torres’] behalf prior to the resentencing; and second,
that Attorney Rybak was ineffective for failing to file a post-
sentence motion and/or appeal. After hearing argument from
counsel, the court entered the order appealed from, denying
[Rentas-Torres’ PCRA petition].
On January 22, 2021, [Rentas-Torres’] counsel filed the instant
appeal. On January 25, 2021, the court ordered [Rentas-Torres]
to file a [Pa.R.A.P. 1925(b)] concise statement of matters
complained of on appeal (“[Rule 1925(b)] Statement’), within
twenty-one days, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). [Rentas-Torres] filed his [Rule 1925(b)]
Statement on February 15, 2021[.]
PCRA Court Opinion, 2/24/21, at 1-4 (footnotes and citations to record
omitted).
Rentas-Torres raises the following claim for our review:
Whether the PCRA [c]ourt erred in failing to find that probation
violation counsel was ineffective in defense of the alleged
violation, in not making any coherent or other persuasive
sentencing presentation, and in failing to seek reconsideration of
sentence or appeal of the discretionary aspects of sentence?
Brief of Appellant, at 4.
It is well-settled that, in reviewing the denial of PCRA relief, “we examine
whether the PCRA court’s determination is supported by the record and free
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of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014)
(quotations and citations omitted). The PCRA court’s credibility
determinations are binding on this Court when they are supported by the
record; its legal conclusions, however, are subject to de novo review.
Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011).
Here, Rentas-Torres raises a claim of ineffectiveness of counsel. To
establish a claim of counsel’s ineffectiveness, a petitioner must overcome the
presumption that counsel was effective by proving “(1) that the underlying
claim has merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors or omissions of counsel, there is
a reasonable probability that the outcome of the proceedings would have been
different.” Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super.
2011) (citation omitted). “The failure to prove any one of the three prongs
results in the failure of petitioner’s claim.” Id.We first address Rentas-Torres’ claim as it relates to the revocation
portion of the proceedings. While Rentas-Torres focuses the vast majority of
his appellate argument on the resentencing aspect of his claim, we gather that
his argument as to counsel’s ineffectiveness related to revocation is grounded
in the fact that counsel, who was the “[on-]duty” public defender in the
courtroom and had never previously met Rentas-Torres, was unfamiliar with
Rentas-Torres’ case and failed to sufficiently prepare for the Gagnon II
hearing, or to consult with Rentas-Torres prior thereto. He is entitled to no
relief.
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Here, Rentas-Torres committed, and pled guilty to, a new crime while
serving his probationary sentence. “[T]he commission of a new crime violates
an implied condition of probation and suggests that the defendant is a poor
probation risk.” Commonwealth v. Nava, 966 A.2d 630, 634 (Pa. Super.
2009). Accordingly, upon a finding that a probationer has been convicted of
another crime, the VOP court has the authority to revoke probation and
impose a sentence of total confinement. See 42 Pa.C.S.A. §§ 9771(b), (c).
Moreover, in addition to pleading guilty to another offense, Rentas-
Torres committed multiple violations of the conditions of his probation,
including failing to submit to 41 required urine screens, remain drug-free, or
pay costs. See N.T. VOP Hearing, 7/22/20, at 2-3. As the PCRA court
correctly concluded, under these circumstances, “there was nothing Attorney
Ryback could have done to defend against the violation.” PCRA Court Opinion,
2/24/21, at 5. Therefore, inasmuch as his ineffectiveness claim relates to the
revocation of his probation, Rentas-Torres is entitled to no relief. See Ousley,
supra (where no reasonable probability exists that outcome of proceedings
would have been different, ineffectiveness claim fails). However, with regard
to his claim that counsel was ineffective during resentencing and for failing to
file a post-sentence motion for reconsideration of sentence and a direct
appeal, we find Rentas-Torres’ claim to be meritorious.
The record supports the PCRA court’s conclusion that Rentas-Torres did
not explicitly request that counsel file a motion for reconsideration or direct
appeal. However, even where a defendant does not expressly ask counsel to
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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) (emphasis
added). In such situations, counsel is not per se ineffective and the traditional
three-prong Strickland1 test “is necessary to decide whether counsel
rendered constitutionally ineffective assistance by failing to advise his client
about his appellate rights.” Commonwealth v. Markowitz, 32 A.3d 706,
716 (Pa. Super. 2011). Hence, an appellant “must plead and prove: (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.” Id.Pursuant to [Roe v. Flores–Ortega, 528 U.S. 470 (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[, 528 U.S.] at 480).
Bath, 907 A.2d at 623 (emphasis added). “Where a petitioner can prove
either factor, he establishes that his claim has arguable merit.” Markowitz,
32 A.3d at 716.
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1 Strickland v. Washington, 466 U.S. 668 (1984). See also
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (adopting Strickland
test).
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Additionally, an appellant is not required to show he had meritorious
issues for appeal to establish counsel was ineffective for failing to consult with
him regarding an appeal. Commonwealth v. Donaghy, 33 A.3d 12, 17 (Pa.
Super. 2011). See also Commonwealth v. Green, 168 A.3d 173, 178 n.5
(Pa. Super. 2017) (“[A] claim that lacks merit is not necessarily wholly
frivolous. The duty to consult arises if there is a non-frivolous issue to raise,
not an ultimately meritorious issue.”). Further, prejudice in this context
means an appellant must show a reasonable probability that, but for counsel’s
failure to consult, the appellant would have sought additional review. Touw,
781 A.2d at 1254. See also Donaghy, supra (reversing order denying PCRA
relief and remanding for reinstatement of appellant’s direct appeal rights nunc
pro tunc, where trial counsel failed to consult with appellant about desire to
file direct appeal; appellant sent trial counsel letter during 30–day appeal
period asking how long appellant had to file appeal and what types of issues
appellant could raise on appeal; appellant’s letter sufficiently demonstrated
desire to appeal such that counsel should have made reasonable effort to
discover appellant’s wishes; counsel’s testimony at PCRA hearing that counsel
believed appellant had no viable reasons for appeal does not absolve counsel
of duty to ascertain appellant’s wishes; counsel’s failure to consult with
appellant about filing direct appeal deprived appellant of constitutional right
to effective assistance of counsel).
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Here, the record demonstrates that Rentas-Torres was dissatisfied with
his sentence and sought a county sentence to be imposed due to his family
circumstances. Prior to sentencing, Rentas-Torres allocuted as follows:
THE COURT: Is there anything you’d like to say before I sentence
you for the probation violation?
THE DEFENDANT: Yes, [Y]our [H]onor. I used to take care of my
mother. My mother is 92 years old. I know I made a few mistakes
in my life. I’m a human being. Right now[,] my family is waiting
that I’m coming back home so I can take care of my mother. She’s
92 years old. If I leave for another six months, I don’t
know—I won’t be able to see her. I’m fighting for custody [of]
my son because I did everything I was supposed to do when I was
on probation.
I caught a new case, [Y]our [H]onor[,] yes. I did c[atch] a new
case, yes, and I [pled] to the new case and I take responsibility
for the new case. But I believe sending me upstate again is—
they’re not going to do no good to me. They going to hurt
me more because my family going to be hurt. I won’t be
able to see my mother, I won’t be able to see my son, and
they going to damage my life completely. Right now[,] I lost
my sister, I lost my brother, and these problems. Nothing to
justify what I did. I lost my brother and my sister and I lost my
father.
N.T. Gagnon II Hearing, 7/22/20, at 6-7 (emphasis added).
Based on the foregoing, as well as Rentas-Torres’ refusal to sign the
form containing his post-sentence rights, counsel certainly had a reasonable
basis to believe that Rentas-Torres was dissatisfied with his sentence and may
have wished to seek reconsideration and an appeal. Nonetheless, at the PCRA
hearing, counsel testified that he never filed a motion for reconsideration of
sentence on Rentas-Torres’ behalf, see N.T. PCRA Hearing, 1/6/21, at 8, did
not know if he went over Rentas-Torres’ post-sentence rights with him, see
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id., and “[did] not believe [he] spoke with him about a [motion for]
reconsideration [of sentence],” id. at 9, despite understanding that Rentas-
Torres was dissatisfied with his sentence. Id. at 10 (“[PCRA Counsel]: And
certainly from [Rentas-Torres’] reluctance to sign the post-sentence rights
form,] you gleaned that [he] was dissatisfied with the sentence that had been
imposed? [Attorney Ryback]: He seemed dissatisfied with the entire court
system, so—”). Indeed, Rentas-Torres ultimately filed a pro se appeal to this
Court a week after his resentencing.
Moreover, although the court recited Rentas-Torres’ post-sentence
rights orally in light of Rentas-Torres’ refusal to sign his post-sentence-rights
form, the court erroneously advised Rentas-Torres that he “[didn’t] have to
file a post-sentence motion with me to appeal the sentence. You can appeal
it directly to the Superior Court.” N.T. Gagnon II Hearing, 7/22/20, at 8-9.
To the contrary, “when a court revokes probation and imposes a new
sentence, a criminal defendant needs to preserve challenges to the
discretionary aspects of that new sentence either by objecting during the
revocation sentencing or by filing a post-sentence motion.” Commonwealth
v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008); see also Pa.R.Crim.P.
708(E) (“A motion to modify a sentence imposed after a revocation shall be
filed within 10 days of the date of imposition.”). Issues not preserved in the
lower court may not be raised on appeal. Pa.R.A.P. 302(a).
Here, Rentas-Torres did not object in open court following the imposition
of his revocation sentence. Accordingly, he was required to file a post-
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sentence motion for modification of sentence in order to preserve his
sentencing challenge on appeal. Kalicheck, supra. Where the court
provided him inaccurate information, and counsel—despite having a
reasonable basis to believe that Rentas-Torres might wish to appeal—never
consulted with Rentas-Torres to correct the misinformation or ascertain his
desire to challenge his sentence, we are constrained to conclude that Rentas-
Torres was denied his constitutional right to effective assistance of counsel
with regard to the sentencing phase of his Gagnon II hearing, as well as with
respect to the preservation of his post-sentence and appellate rights.
Accordingly, we vacate the PCRA order and remand the case to the PCRA court
for reinstatement, nunc pro tunc, of Rentas-Torres’ post-sentence and direct
appellate rights.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2021
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