Com. v. Reasons, B.

• Court: Superior Court of Pennsylvania
• Decided: October 20, 2020
• Docket: 1259 EDA 2020
• Status: Unpublished

Opinion

J-S45005-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN L. REASONS : : Appellant : No. 1259 EDA 2020

Appeal from the PCRA Order Entered March 27, 2020 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003260-2016

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 20, 2020

Brian L. Reasons1 appeals pro se from the order that denied his petition

for relief pursuant to the Post-Conviction Relief Act (“PCRA”), and granted

counsel’s petition to withdraw pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc). We vacate the order and remand for further

proceedings consistent with this memorandum.

The facts or procedural posture of this case are not readily apparent

from Appellant’s brief. From the record, we discern that Appellant had a

history of violence against his long-term paramour. On May 2, 2017,

Appellant entered a negotiated guilty plea on charges related to their most

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1 Although it has no impact on this appeal, we note that Appellant represents that his surname is “Reason” rather than “Reasons.” J-S45005-20

recent physical confrontation. Specifically, Appellant agreed to plead guilty to

intimidation of witnesses or victims and simple assault and be sentenced to

an aggregate term of eighteen to sixty months of imprisonment, and the

Commonwealth agreed to dismiss the remaining charges. The trial court

expressed misgivings due to Appellant’s criminal history in general, and

repeated incidents with the victim, even opining that an aggravated-range

sentence would likely be imposed if Appellant were convicted at a trial, but

accepted the plea and sentenced Appellant accordingly. Appellant thanked

the court for accepting the standard-range plea and dismissal of additional

charges. See N.T. Guilty Plea, 5/2/17, at 27. Appellant filed no post-sentence

motion or direct appeal.

Appellant filed a timely pro se PCRA petition alleging four claims of

ineffective assistance of plea counsel, including the claim that plea counsel

failed to file a requested direct appeal. See PCRA Petition, 5/7/18, at 4. PCRA

counsel was appointed and filed an application to withdraw and Turner/Finley

letter. Therein, counsel opined, inter alia, that assuming that Appellant had

requested an appeal, and that counsel lacked a reasonable basis for not filing

an appeal, Appellant could not establish prejudice because none of the issues

available to him on appeal had merit. See Application for Leave to Withdraw,

9/7/18, at Exhibit A pages 8-9.

At a subsequent status hearing, PCRA counsel received additional

materials to review from Appellant and his family. PCRA counsel also reviewed

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audio and visual materials that the Commonwealth provided in discovery.

Thereafter, PCRA counsel filed a supplemental Turner/Finley letter

confirming that her opinion that Appellant’s PCRA petition lacked merit

remained unchanged. See Supplemental Finley Letter, 10/19/18, at 1-2.

Appellant filed a pro se response, challenging PCRA counsel’s effectiveness

and requesting new counsel. See Case Correspondence, 4/29/18, at 7-9. The

PCRA court ordered PCRA counsel to review the issues raised and file a

response, and counsel complied. Appellant filed another pro se response,

again complaining of PCRA counsel’s performance and requesting an

evidentiary hearing. See Case Correspondence, 6/5/19, at 1-3. Again, the

PCRA court ordered counsel to file a response, and counsel complied.

Appellant, pro se, continued to file various documents, letters, motions, and

his “Book of Incontrovertible Physical Facts.”

Ultimately, the PCRA court issued notice of its intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907, indicating

that it reviewed all of the filings from Appellant and PCRA counsel, and

explaining its reasoning. In particular, the PCRA court concluded that

Appellant’s claim that plea counsel was ineffective for failing to file a requested

direct appeal failed because none of the claims that Appellant could have

raised following the guilty plea was meritorious. See Notice of Intent to

Dismiss, 3/2/20, at 7-8.

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Appellant filed a pro se response, reiterating his claims of ineffective

counsel and requesting an evidentiary hearing. See Response to 907 Notice,

3/19/20, at 1, 3. By order of March 27, 2020, the PCRA court2 denied

Appellant’s claims, dismissed his petition, and granted counsel’s application

for leave to withdraw.

Appellant timely filed a notice of appeal, in which he stated his

complaints with the PCRA court’s decision. Among them is the reiteration of

his contention that the PCRA court erred in allowing PCRA counsel to withdraw.

See Notice of Appeal, 4/23/20, at 2. The PCRA court issued a statement

pursuant to Pa.R.A.P. 1925, addressing the propriety of allowing PCRA counsel

to withdraw by, inter alia, stating its agreement with counsel’s Turner/Finley

analysis, and referencing the notice of intent to dismiss as providing analysis

of Appellant’s other arguments. See PCRA Court Opinion, 7/6/20, at 5-8.

We begin with the applicable law. “This Court’s standard of review

regarding an order denying a petition under the PCRA is whether the

determination of the PCRA court is supported by the evidence of record and is

free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super.

2017). “[A] PCRA court has discretion to dismiss a PCRA petition without a

hearing if the court is satisfied that there are no genuine issues concerning

2 The judge who had accepted Appellant’s guilty plea and initially ruled upon the PCRA matters retired on March 13, 2020, and the case was reassigned to a different judge. See Order, 3/16/20.

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any material fact; that the defendant is not entitled to post-conviction

collateral relief; and that no legitimate purpose would be served by further

proceedings.” Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa.Super. 2019)

(internal quotation marks omitted). With the exception of claims of PCRA

counsel ineffectiveness, once the PCRA court has issued notice of its intent to

dismiss the petition without a hearing, it has no duty to address any claims

not raised in the original petition or an amended petition filed with leave of

court. See Commonwealth v. Rykard, 55 A.3d 1177, 1192 (Pa.Super.

2012). Further, “[i]t is an appellant’s burden to persuade us that the PCRA

court erred and that relief is due.” Commonwealth v. Stansbury, 219 A.3d

157, 161 (Pa.Super. 2019) (internal quotation marks omitted).

For the most part, we find it difficult to apply these principles to the

instant appeal. Appellant’s brief does not contain a statement of questions

presented as required by Pa.R.A.P. 2111(a)(4), and also is in violation of

Pa.R.A.P. 2111(a)(1) (requiring a statement of jurisdiction); Pa.R.A.P.

2111(a)(3) (requiring a statement of the scope and standard of review);

Pa.R.A.P. 2111(a)(6) (requiring a summary of argument); and Pa.R.A.P.

2111(a)(8) (requiring an argument section). The brief further is devoid of

citations to the record, a synopsis of the evidence, or a statement of place of

preservation of issues as are required by Pa.R.A.P. 2119(c), (d), and (e),

respectively.

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Rather, Appellant’s brief in this Court consists of a three-page request

that we “review and decide this immediate petition based upon the evidence

and documentation provided herein that are incontrovertible facts, which are

counterfactual in the way of false and fabricated evidence/perjury, denying

me an evidentiary hearing and my due process rights.” Appellant’s brief at 1-

2. Appended thereto are hundreds of pages of photographs, photocopies of

legal publications, quotations, and correspondence, which appear to be what

Appellant terms his “Book of Incontrovertible Physical Facts” and other

“documentation and reports.” Id. at 2-3.

As our Supreme Court recently reiterated:

our appellate rules do not allow incorporation by reference of arguments contained in briefs filed with other tribunals, or briefs attached as appendices, as a substitute for the proper presentation of arguments in the body of the appellate brief. Were we to countenance such incorporation by reference as an acceptable manner for a litigant to present an argument to an appellate court of this Commonwealth, this would enable wholesale circumvention of our appellate rules which set forth the fundamental requirements every appellate brief must meet.

Commonwealth v. Housman, 226 A.3d 1249, 1264 (Pa. 2020) (cleaned

up).

Appellant’s disregard for the Rules of Appellate Procedure have left this

Court unable to conduct meaningful review of most of his claims. However,

the merit of one of his complaints is obvious from our review of the PCRA

court’s filings and requires us to vacate the order that permitted counsel to

withdraw, denied his claims, and dismissed the petition without a hearing.

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The general rule is that to prevail on a claim of ineffective assistance of

counsel, a PCRA petitioner is required to plead and prove that his underlying

claim has arguable merit, that counsel had no reasonable basis for her action

or inaction, and prejudice. Commonwealth v. Selenski, 228 A.3d 8, 15

(Pa.Super. 2020). However, it is well-settled that there are some

circumstances in which prejudice is presumed. In particular, it has long been

the law that counsel’s failure to file a requested direct appeal is per se

ineffectiveness, and warrants the reinstatement of direct appeal rights

regardless of the merit, or lack thereof, in the claims he wishes to raise. See,

e.g., Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999). However,

to benefit from this presumption of prejudice, the petitioner “must still prove

that he asked counsel to file a direct appeal.” Commonwealth v.

Markowitz, 32 A.3d 706, 715 (Pa.Super. 2011).

As noted above, PCRA counsel deemed Appellant’s claim that counsel

failed to file a direct appeal despite his request to be meritless because none

of the issues he could have raised had merit. 3 See Application for Leave to

Withdraw, 9/7/18, at Exhibit A pages 8-9 (explaining that there would be no

merit in a direct appeal because the trial court had jurisdiction, the sentence

3 See, e.g., Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014) (“[U]pon entry of a guilty plea, a defendant waives all claims and defenses other than those sounding in the jurisdiction of the court, the validity of the plea, and what has been termed the legality of the sentence imposed[.]”) (cleaned up).

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was legal, and Appellant’s statements during the plea colloquy precluded a

finding that the plea was involuntary). The PCRA court agreed with this

analysis, declining to have a hearing to establish whether Appellant did in fact

request an appeal, and then allowed PCRA counsel to withdraw.

Under Lantzy and its progeny, PCRA counsel’s analysis was completely

wrong, and the PCRA court erred in accepting it and concluding that a

complete lack of merit warranted the withdrawal of counsel and the dismissal

of the petition without a hearing. See, e.g., Commonwealth v. McGarry,

172 A.3d 60, 71 (Pa.Super. 2017) (holding PCRA court erred in dismissing

without a hearing claim that the petitioner requested that counsel file a direct

appeal). Appellant is entitled to a hearing on the claim that he requested plea

counsel to file an appeal, and he further is entitled to the appointment of new

PCRA counsel to represent him at the hearing. See Pa.R.Crim.P. 904

(providing petitioner is entitled to counsel in litigating first PCRA petition, or

any time a hearing is necessary); Commonwealth v. Betts, __ A.3d ___,

2020 PA Super 225, 2020 WL 5524288 (Pa.Super. Sept. 15, 2020) (remanding

for the appointment of substitute PCRA counsel for further litigation of first

PCRA petition).

We deem the remainder of Appellant’s claims waived based upon the

aforementioned defects in his brief. See, e.g., Commonwealth v. Sanford,

445 A.2d 149, 151 (Pa.Super. 1982) (declining to address the substance of

the appeal because the brief was “so defective as to preclude effective,

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appellate review”). Upon remand, the PCRA court shall appoint substitute

PCRA counsel and conduct a hearing solely on the question of whether

Appellant requested that plea counsel file a direct appeal.

Order vacated. Case remanded with instructions. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/20/2020

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