Com. v. Mease, B.

J. S12033/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BLAINE THOMAS MEASE, : No. 1565 MDA 2017
:
Appellant :
Appeal from the PCRA Order, September 21, 2017,
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0006027-2015
BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 06, 2018
Blaine Thomas Mease appeals the order of September 21, 2017,
issued by the Court of Common Pleas of Philadelphia County that denied his
amended PCRA1 petition. After careful review, we affirm.
The factual and procedural history of this matter, as recounted by the
PCRA court, is as follows:
By Criminal Information docketed to No. 6027 of
2015, [appellant] was charged with burglary,
criminal attempt at simple assault, and criminal
mischief.[Footnote 1] The charges arose from an
incident on December 7, 2015, where [appellant]
entered the victim’s apartment without permission
with the intent to commit the crime of simple
assault. [Appellant] kicked the victim’s door in and
attacked the victim.
1 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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[Footnote 1] 18 Pa.C.S.A. § 3502(1)(1),
18 Pa.C.S.A. § 901(a), and 18 Pa.C.S.A.
§ 3304(a)(5), respectively.
After arraignment in the Court of Common Pleas of
Lancaster County, [appellant] entered a plea of
nolo contendere to the charges of burglary and
criminal attempt. The criminal mischief charge was
to be nolle prossed. There was no agreement as to
sentencing. The plea was presented on August 8,
2016, and, after an on-the-record colloquy, the plea
was accepted and sentencing was deferred pending
the completion of a pre-sentence investigation.
On November 9, 2016 [appellant] received the
following sentence: 1-1/2 to 5 years’ incarceration
for the burglary charge; and 6 to 24 months’
incarceration for the criminal attempt at simple
assault. These sentences were ordered to run
concurrently with each other. At the conclusion of
the sentencing hearing, [appellant] acknowledged
his post-sentence rights and indicated he had no
questions for the [c]ourt regarding his sentence or
his post-sentence rights. [Appellant] filed neither
post[-]sentence motions nor a direct appeal from the
above judgment of sentence. [Appellant] was
represented at the nolo contendere plea and
sentencing hearing by privately retained counsel,
Tilman P. Larson, Esquire.
On March 20, 2017, [appellant] pro se filed a
motion to modify and reduce sentence nunc pro
tunc, which this Court deemed a petition for
post[-]conviction collateral relief. In the motion,
[appellant] alleged a failure by his trial counsel to file
post-sentence motions and a direct appeal. Pursuant
to Rule 904(A) of the Pennsylvania Rules of Criminal
Procedure, Vincent J. Quinn, Esquire, was appointed
to represent [appellant] on his collateral claims.
After consulting with [appellant], Attorney Quinn
filed an amended petition on May 15, 2017, which
represented that Attorney Larson was ineffective for
failing to perfect an appeal of the plea and
sentencing allegedly requested by [appellant].
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The Commonwealth conceded the necessity of an
evidentiary hearing to adequately address this issue.
Accordingly, an evidentiary hearing was held via
videoconferencing on July 21, 2017.
Trial court opinion, 9/21/17 at 1-3 (citations and other footnotes omitted).
At the July 21, 2017 hearing, appellant called as a witness his attorney
at trial, Tilman P. Larson, Esq. (“Attorney Larson”). Attorney Larson testified
that he met with appellant after sentencing and asked him if he had any
questions about what had just occurred, if he wanted to appeal, if he would
pay the remainder of the fee owed to Attorney Larson, and informed
appellant that he would contact the mother of his two children to let her
know the result. (Notes of testimony, 7/21/17 at 8-9.) With regard to the
possibility of an appeal, Attorney Larson recalled the following:
The second item that we discussed, I asked him if he
wanted to appeal, and he said, well, it’s not worth it.
And I reminded him of the colloquy that he and I had
discussed for an hour and a half before he pled and
reminded him that it would be difficult, but if he
wanted to appeal, he could. And I received no
further indication from him that he wanted to appeal.
Id. at 8.
On cross-examination, Attorney Larson stated that he would have filed
an appeal had appellant asked him to do so. (Id. at 11.)
Appellant testified that when he spoke with Attorney Larson after
sentencing, Attorney Larson was primarily concerned with obtaining the
remaining $800 that appellant owed to Attorney Larson. (Id. at 15.)
Appellant testified that Attorney Larson did not discuss filing post-sentence
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motions and did not recall Attorney Larson’s discussing the filing of an
appeal. Appellant did not remember any discussion about the
commencement of the appellate process. (Id.) On cross-examination,
appellant admitted that he did not ask Attorney Larson to file an appeal.
(Id. at 17.)
By order dated September 21, 2017, the PCRA court denied the
amended PCRA petition. The PCRA court found Attorney Larson credible and
did not accept appellant’s testimony that Attorney Larson failed to confer
with him regarding the filing of an appeal. (Trial court opinion, 9/21/17 at
9.)
Appellant filed a notice of appeal on October 3, 2017. On October 4,
2017, the PCRA court ordered appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant complied
with the order on October 12, 2017. On October 17, 2017, the trial court
filed its memorandum opinion, pursuant to Pa.R.A.P. 1925(a), in which it
stated that it would rely on its opinion of September 21, 2017.
Appellant raises the following issue for this court’s review: “Whether
the [PCRA] court erred in denying [appellant’s] amended PCRA [petition]
when he was denied his right to an appeal as a result of his ineffective
assistance of counsel?” (Appellant’s brief at 4 (full capitalization omitted).)
Initially, we recite our standard of review:
This Court’s standard of review regarding an order
denying a petition under the PCRA is whether the
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determination of the PCRA court is supported by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
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). To establish a
claim of ineffective assistance of counsel, Appellant
must demonstrate (1) the underlying claim is of
arguable merit; (2) counsel’s action or inaction
lacked any reasonable basis designed to effectuate
Appellant’s interest; and (3) but for the errors and
omissions of counsel, there is a reasonable
probability that the outcome of the proceedings
would have been different. Commonwealth v.
Johnson, 868 A.2d 1278, 1281 (Pa.Super. 2005),
appeal denied, 583 Pa. 680, 877 A.2d 460 (2005)
(internal citations omitted); Gonzalez, supra. The
failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail.
Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651
(2003). “The threshold inquiry in ineffectiveness
claims is whether the issue/argument/tactic which
counsel has foregone and which forms the basis for
the assertion of ineffectiveness is of arguable
merit. . . .” Commonwealth v. Pierce, 537 Pa.
514, 524, 645 A.2d 189, 194 (1994). “Counsel
cannot be found ineffective for failing to pursue a
baseless or meritless claim.” Commonwealth v.
Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Commonwealth v. Taylor, 933 A.2d 1035, 1041-1042 (Pa.Super. 2007),
appeal denied, 951 A.2d 1163 (Pa. 2008).
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It is well settled that when a lawyer fails to file
a direct appeal requested by the defendant, the
defendant is automatically entitled to reinstatement
of his direct appeal rights. Commonwealth v.
Lantzy, 558 Pa. 214, 736 A.2d 564 (1999). Where
a defendant does not ask his attorney to file a direct
appeal, counsel still may be held ineffective if he
does not consult with his client about the client’s
appellate rights. Roe v. Flores-Ortega, 528 U.S.
470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000);
[Commonwealth v. Carter, 21 A.3d 680, 682-683
(Pa.Super. 2011)]. Such ineffectiveness, however,
will only be found where a duty to consult arises
either because there were issues of merit to raise on
direct appeal or the defendant, in some manner,
displayed signs of desiring an appeal. Roe v.
Flores-Ortega, supra.
Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa.Super. 2011),
appeal denied, 40 A.3d 1235 (Pa. 2012).
Appellant contends that the PCRA court’s order should be reversed and
his direct appeal rights should be reinstated due to the ineffectiveness of
Attorney Larson in failing to file an appeal. Appellant concedes that his
testimony regarding whether Attorney Larson asked him if he wanted to file
an appeal conflicts with Attorney Larson’s testimony. Appellant argues that
his version of the facts is correct because Attorney Larson is inexperienced,
they both agree that Attorney Larson asked about the payment of his fee,
and they both agree that Attorney Larson did not mention the filing of
post-sentence motions. Essentially, appellant is asking this court to reweigh
the facts and reassess the credibility determinations made by the PCRA
court. This court is not permitted to do so. A PCRA court’s credibility
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determinations are binding upon this court, if there is support for those
determinations in the record. Commonwealth v. Widgins, 29 A.3d 816,
820 (Pa.Super. 2011). Here, the PCRA court found Attorney Larson credible
and accepted his recitation of the past events. The determination is
supported by Attorney Larson’s testimony. Appellant’s claim of ineffective
assistance of counsel for failure to file an appeal is of no merit because
appellant told Attorney Larson that he did not want to appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2018
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