Com. v. Haworth, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MARC HAWORTH
Appellant No. 2850 EDA 2019
Appeal from the PCRA Order Entered September 9, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No.: CP-09-CR-0002723-2017
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED JULY 28, 2020
Appellant Marc Haworth appeals from the September 9, 2019 order of
the Court of Common Pleas of Bucks County (“PCRA court”), which denied,
without a hearing, his petition under the Post Conviction Relief Act, 42
Pa.C.S.A. §§ 9541-46. Upon review, we vacate and remand for an evidentiary
hearing.
The facts and procedural history of this case are undisputed. 1 On
October 16, 2017, Appellant pled guilty to multiple counts of home
improvement fraud, deceptive business practices, and theft. On January 5,
2018, the trial court sentenced Appellant to an aggregate term of five to ten
years’ imprisonment followed by a consecutive term of five years’ probation.
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1Unless otherwise noted, these facts are taken from the trial court’s November
25, 2019 opinion. See Trial Court’s Opinion, 11/25/19, at 1.
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Appellant also was directed to pay restitution for $191,404.52. On January
11, 2018, Appellant filed a post-sentence motion. Following a hearing, the
trial court denied the motion on April 17, 2018. Appellant did not file a direct
appeal. His judgment of sentence became final on May 17, 2018.
On March 14, 2019, Appellant pro se filed the instant PCRA petition. The
PCRA court appointed counsel, who, on July 19, 2019, filed an amended
petition, asserting claims of ineffective assistance of counsel. Appellant
alleged, inter alia, that his trial counsel was ineffective for failing to file a direct
appeal, advising and allowing him to enter into a guilty plea whose
consequences he did not fully appreciate, and failing to withdraw his guilty
plea. Appellant alleged that he “he requested counsel to file an appeal on his
behalf.” Amended Petition, 7/19/19, at ¶ 17(d). Appellant attached to his
amended petition a “Statement of Counsel Pursuant to Pa.R.Crim.P.
902(A)(12),” by which each of his two trial counsels respectively stated in
relevant part:
3. I decline to provide a detailed statement explaining all of my
reasons for my actions and recommendations when representing
[Appellant], but will state that at all times I used what I considered
to be my best judgment and brought to bear my years of
experience representing criminal defendants when representing
[Appellant].
4. I will testify and respond to all questions at a hearing ordered
by a court in lieu of an affidavit.
On August 6, 2019, the Commonwealth filed an answer opposing Appellant’s
amended petition. On August 15, 2019, the PCRA court issued a Pa.R.Crim.P.
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907 notice of its intent to dismiss the petition without a hearing. On
September 4, 2019, Appellant responded to the court’s Rule 907 notice,
requesting an evidentiary hearing in light of his allegation that he requested
his counsel to file a direct appeal. On September 9, 2019, the trial court
denied Appellant PCRA relief without a hearing. Appellant timely appealed.
Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
On appeal,2 Appellant presents two issues for our review.
[I.] Did the lower court err in denying Appellant’s [PCRA] petition
without a hearing where trial counsel was ineffective for failing to
file a direct appeal on Appellant’s behalf after being requested to
do so?
[II.] Did the lower court err in denying Appellant’s [PCRA] petition
without a hearing where trial counsel was ineffective for allowing
Appellant to pled guilty and for failing to withdraw Appellant’s
guilty plea under circumstances where the guilty plea was not
knowingly, voluntarily and intelligently entered?
Appellant’s Brief at 4 (unnecessary capitalizations omitted).
As stated, Appellant’s claims before us involve ineffective assistance of
counsel. A PCRA petitioner is entitled to relief if he pleads and proves that
prior counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A. §
9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner
must plead and prove by a preponderance of the evidence that (1) the
underlying legal claim has arguable merit; (2) counsel had no reasonable basis
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2“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
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for acting or failing to act; and (3) the petitioner suffered resulting prejudice.”
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015)
(en banc). “A petitioner must prove all three factors of the “Pierce[3] test,”
or the claim fails.” Id. Put differently, “[t]he burden of proving ineffectiveness
rests with Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa.
2005).
We first address Appellant’s claim that the PCRA court erred in declining
to hold an evidentiary hearing with respect to whether his trial counsels were
ineffective in failing to file an allegedly requested direct appeal.
Our Supreme Court has held that counsel’s unexplained failure to
file a requested direct appeal constitutes ineffective assistance per
se, such that the petitioner is entitled to reinstatement of direct
appeal rights nunc pro tunc without establishing prejudice.
However, before a court will find ineffectiveness of counsel for
failing to file a direct appeal, the petitioner must prove that he
requested a direct appeal and the counsel disregarded the
request. . . . .
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011) (internal
citations, and ellipsis omitted; formatting amended; emphasis added), appeal
denied, 30 A.3d 487 (Pa. 2011). With respect to an evidentiary hearing, we
explained in Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super. 2015)
(en banc), aff’d, 158 A.3d 618 (Pa. 2017):
There is no absolute right to an evidentiary hearing. See
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super.
2008). On appeal, we examine the issues raised in light of the
record “to determine whether the PCRA court erred in concluding
that there were no genuine issues of material fact and in denying
relief without an evidentiary hearing.” Id.____________________________________________
3 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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Burton, 121 A.3d at 1067. Moreover, “to obtain reversal of a PCRA court’s
decision to dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor, would have
entitled him to relief, or that the court otherwise abused its discretion in
denying a hearing.” Commonwealth v. D’Amato, 856 A.2d 806, 820 (Pa.
2004).
Instantly, our review of the record confirms that Appellant alleged in his
amended PCRA petition, in his response to the PCRA court’s Rule 907 notice,
and in his brief on this appeal that he requested his trial counsels to file a
direct appeal. According to Appellant, his counsels allegedly disregarded his
request. Moreover, trial counsels did not reject Appellant’s allegations in their
respective statements, which were not affidavits. They, however, appear
willing and able to participate in an evidentiary hearing. Given the serious
nature of Appellant’s claim, and the importance of direct appeals in criminal
cases, we remand this matter to the PCRA court to conduct an evidentiary
hearing and render necessary findings of fact to determine whether
Appellant’s contention that his counsels disregarded his request for a direct
appeal carries any merit. Without such findings, we are unable to engage in
meaningful appellate review of the PCRA court’s decision in this case.
Counsels’ unexplained failure to file a requested direct appeal constitutes
ineffective assistance per se.4
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4 We express no opinions on the merits of Appellant’s PCRA claims.
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Similarly, we are unable to conduct meaningful appellate review of
Appellant’s second issue that counsel refused to withdraw his guilty plea on
the basis the plea was not knowingly, voluntarily, and intelligently made.
Without a proper record upon which necessary findings of fact are made by
the PCRA court, this issue cannot be decided.
Upon remand, if the court determines, following a hearing, that
Appellant satisfies the criteria for collateral relief on any of the two issues
raised, then appropriate relief should be granted as is appropriate to the claim
made.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2020
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