Com. v. Jones, C.

Opinion

J-S63044-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA, : PENNSYLVANIA : Appellee : : v. : : CHIHEAM JONES, : : Appellant : No. 3681 EDA 2018

Appeal from the PCRA Order Entered November 26, 2018 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001930-2015

BEFORE: GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 17, 2020

Chiheam Jones (Appellant) appeals from the November 26, 2018 order

which denied his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant’s counsel has filed a petition to

withdraw and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).1

Upon review, we affirm the order and grant counsel’s petition to withdraw.

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1 “Counsel filed a brief pursuant to Anders [], apparently in the mistaken belief that an Anders brief is required where counsel seeks to withdraw on appeal from the denial of PCRA relief.” Commonwealth v. Widgins, 29 A.3d 816, 817 (Pa. Super. 2011). “A Turner/Finley no-merit letter, however, is the appropriate filing. See Commonwealth v. Turner, [] 544 A.2d 927 ([Pa.] 1988); Commonwealth v. Finley, [] 550 A.2d 213 ([Pa. Super.] 1988) (en banc).” Id. “Because an Anders brief provides greater (Footnote Continued Next Page)

* Retired Senior Judge assigned to the Superior Court. J-S63044-19

We glean the following facts from the record. On March 3, 2015, the

Commonwealth filed a criminal information against Appellant charging him

with possession of marijuana and possession with intent to deliver (PWID)

marijuana. On August 15, 2017, a jury found Appellant guilty of both

charges. On October 25, 2017, Appellant was sentenced to three to six

years of incarceration to be followed by four years of probation. Appellant

timely filed a post-sentence motion challenging the discretionary aspects of

his sentence. The trial court denied that motion on November 7, 2017. No

direct appeal was filed.

On January 9, 2018, Appellant filed pro se a PCRA petition. Counsel

was appointed, and an amended petition was filed claiming trial counsel was

ineffective due to his failure to file a direct appeal on Appellant’s behalf. The

PCRA court held a hearing on the petition on November 26, 2018.

At that hearing, Appellant testified that on the “same day when [he]

got found guilty,” he requested trial counsel file a direct appeal. N.T.,

11/26/2018, at 5. Appellant claimed that trial counsel confirmed with

Appellant that counsel would file a direct appeal after sentencing. Id. at 6.

In addition, Appellant testified that he sent counsel two letters requesting he

file a direct appeal. Appellant stated that he kept copies of both letters, but

left them in his jail cell. Id. at 9. In addition, Appellant testified that his

(Footnote Continued) _______________________ protection to a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley letter.” Id.

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sister, Latraya Jones, called counsel requesting a direct appeal. 2 Id. at 10.

Appellant stated that he also called counsel requesting a direct appeal.

The Commonwealth called trial counsel to testify. It was trial counsel’s

recollection that any communication he had with Appellant was regarding

another matter in which he was representing Appellant. Trial counsel

testified that he did not “recall being asked to file a notice of appeal during

his phone calls” with Appellant. Id. at 13. In addition, trial counsel did not

recall receiving any correspondence from Appellant requesting an appeal.

Id. at 15. The only letter counsel had in his file from Appellant was from

February 22, 2018, which was with regard to Appellant’s other case. Id. at

20.

At the close of the hearing, the PCRA court denied Appellant’s petition

on the record. Id. at 24. The PCRA court concluded that it found trial

counsel’s testimony “to be credible” and concluded that Appellant had

presented no credible support for his contention that he “wanted an appeal

of this matter.”3 Id.

____________________________________________ 2 Appellant’s PCRA counsel stated that he subpoenaed Latraya Jones to testify, but the subpoena was never able to be served successfully. N.T., 11/26/2018, at 10.

3 The PCRA court did not memorialize the oral order denying Appellant’s PCRA petition until December 27, 2018. See Order, 12/27/2018. Pursuant to Pennsylvania Rule of Appellate Procedure 301, an order is not appealable “until it has been entered upon the appropriate docket in the lower court.” Pa.R.A.P. 301(a)(1). Thus, at the time Appellant filed the instant notice of appeal, it was premature. However, because the PCRA court subsequently (Footnote Continued Next Page)

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Appellant timely filed a notice of appeal. The PCRA court did not order

Appellant to file a concise statement of errors complained of on appeal, but

filed an opinion addressing the issue raised at the hearing.

On appeal, Appellant’s counsel has filed both an Anders brief and a

petition to withdraw as counsel, which we review pursuant to the standard

required for a Turner/Finley no-merit letter. See Widgins, 29 A.3d at 817.

Accordingly, the following principles guide our review of this matter.

Prior to addressing the merits of the appeal, we must review counsel’s compliance with the procedural requirements for withdrawing as counsel. We have explained:

Counsel petitioning to withdraw from PCRA representation must proceed … under [Turner/Finley] and … must review the case zealously. Turner/Finley counsel must then submit a “no- merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.

***

Where counsel submits a petition and no-merit letter that … satisfy the technical demands of Turner/Finley, the court—[PCRA] court or this Court—must then conduct its own review of the (Footnote Continued) _______________________ entered the order on the docket, in the interest of judicial economy, we will consider this appeal. See Commonwealth v. Allen, 420 A.2d 653 (Pa. Super. 1980).

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merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.

Commonwealth v. Muzzy, 141 A.3d 509, 510-11 (Pa. Super. 2016) (some

internal citations omitted) (citing Commonwealth v. Doty, 48 A.3d 451,

454 (Pa. Super. 2012) (internal citations omitted) (quoting Commonwealth

v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007))).

Based upon our examination of counsel’s petition to withdraw and

brief, we conclude that counsel has complied substantially with the technical

requirements set forth above.4 “Thus, having concluded that counsel’s

petition to withdraw is Turner/Finley compliant, we now undertake our own

review of the case to consider whether the PCRA court erred in dismissing

Appellant’s petition.” Doty, 48 A.3d at 454.

Here, Appellant alleges that trial counsel was ineffective for failing to

file a direct appeal. Appellant’s Brief at 11-12. We review this issue mindful

of the following.

On appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record. The PCRA court’s factual determinations are entitled to deference, but its legal determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (internal

citations and quotation marks omitted). “The scope of review is limited to ____________________________________________ 4 Appellant has not filed a response to counsel’s petition.

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the findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the PCRA court level.”

Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012). Moreover, “[i]t

is well-settled that a PCRA court’s credibility determinations are binding

upon an appellate court so long as they are supported by the record.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).

“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.” Commonwealth v. Ousley, 21 A.3d

1238, 1244 (Pa. Super. 2011). “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.” Id.

Instantly, at the PCRA hearing, Appellant testified that he and his

sister, both verbally and in writing, requested trial counsel file a direct

appeal. N.T., 11/26/2018, at 6-10. On the other hand, trial counsel

testified that while he recalled conversations with Appellant related to his

other case, he did not recall any conversations with Appellant about filing a

direct appeal in this matter. Id. at 13-20. The PCRA court credited trial

counsel’s testimony. “Just as with any other credibility determination, where

the record supports the PCRA court’s credibility determinations, those

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determinations are binding on this court.” Commonwealth v. Abu-Jamal,

720 A.2d 79, 99 (Pa. 1998).

We conclude the record supports the PCRA court’s credibility

determination. This was not a case where trial counsel testified that he had

no recollection of Appellant’s case. Rather, trial counsel recalled specifically

that he had been communicating with Appellant and his sister about another

case, and at no point during those conversations did he recall a request for a

direct appeal in the instant matter. Furthermore, trial counsel produced a

letter from Appellant regarding his other case, which did not mention the

instant matter. Accordingly, we decline to disturb the credibility

determination of the PCRA court and conclude that Appellant did not satisfy

his burden to establish that he requested trial counsel file a direct appeal.

Because our own review of the record confirms that Appellant’s claim

is without merit, we affirm the order denying Appellant’s PCRA petition, and

we grant PCRA counsel’s petition to withdraw.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/17/20

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