Com. v. White, W.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

WILLIAM HOWARD WHITE :

:

Appellant : No. 966 MDA 2020

Appeal from the PCRA Order Entered June 26, 2020 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002171-2017, CP-06-CR-0002172-2017, CP-06-CR-0002173-2017, CP-06-CR-0002174-2017, CP-06-CR-0002653-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

WILLIAM HOWARD WHITE :

:

Appellant : No. 967 MDA 2020

Appeal from the PCRA Order Entered June 26, 2020 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002171-2017, CP-06-CR-0002172-2017, CP-06-CR-0002173-2017, CP-06-CR-0002174-2017, CP-06-CR-0002653-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

WILLIAM HOWARD WHITE :

:

Appellant : No. 968 MDA 2020

Appeal from the PCRA Order Entered June 26, 2020

In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002171-2017, CP-06-CR-0002172-2017, CP-06-CR-0002173-2017, CP-06-CR-0002174-2017, CP-06-CR-0002653-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

WILLIAM HOWARD WHITE :

:

Appellant : No. 969 MDA 2020

Appeal from the PCRA Order Entered June 26, 2020 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002171-2017, CP-06-CR-0002172-2017, CP-06-CR-0002173-2017, CP-06-CR-0002174-2017, CP-06-CR-0002653-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

WILLIAM HOWARD WHITE :

:

Appellant : No. 970 MDA 2020

Appeal from the PCRA Order Entered June 26, 2020 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002171-2017, CP-06-CR-0002172-2017, CP-06-CR-0002173-2017, CP-06-CR-0002174-2017, CP-06-CR-0002653-2017

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.* MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 02, 2021

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* Retired Senior Judge assigned to the Superior Court.

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William Howard White appeals from the order denying his Post Conviction Relief Act (“PCRA”) petition.1 White argues his plea counsel was ineffective for failing to consult with him regarding a direct appeal. We affirm.

White entered an open guilty plea in 2018 to five counts of robbery.2 The trial court sentenced him to an aggregate sentence of 10 to 30 years’ incarceration. White did not file a post-sentence motion or a direct appeal.

White filed a timely PCRA petition, asserting multiple issues, including that his plea counsel had been ineffective for failing to file a direct appeal on his behalf. The PCRA court appointed counsel, who filed a no-merit letter3 and request to withdraw.

The PCRA court denied counsel’s withdraw request and held an evidentiary hearing on whether plea counsel had been ineffective for failing to file a direct appeal. At the hearing,

[plea counsel] testified that [White] never asked him to file an appeal. [Plea counsel] stated that he went over [White’s] post sentence rights with [him] and that [he] signed a form acknowledging those rights. [Plea counsel] informed [White] he had ten days to submit an appeal to the trial court and thirty days to submit an appeal to the Superior Court. [Plea counsel] also testified that he met with [White] at Berks County Prison a few days after [White] pleaded guilty and that [White] never asked him to file an appeal. On cross examination, [plea counsel] again

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1 See 42 Pa.C.S.A. §§ 9541-9546.

2 White pleaded guilty to four counts of robbery under 18 Pa.C.S.A. § 3701(a)(1)(ii) and one count of robbery under 18 Pa.C.S.A. § 3701(a)(1)(v).

3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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reiterated that [White] never asked him to file an appeal on [his]

behalf.

PCRA Court Opinion, filed 11/4/20, at 3-4. Conversely, White testified “he was not sure if he ever received his post sentence rights and that he asked [plea counsel] to appeal for reconsideration of his sentence.” Id. at 4. White also testified “that, after he pleaded guilty, plea counsel told him that he could possibly get more time if his sentence was reconsidered.” Id. The PCRA court found plea counsel’s testimony more credible than White’s testimony, see id. at 3, and dismissed the petition.4 White appealed, raising a single issue: “Did the PCRA court err by denying relief where [White] demonstrated that he had indicated his desire to appeal his sentence to his attorney?” White’s Br. at 3.

We assess an order denying PCRA relief under a well-settled standard of review. Our task is to determine whether the conclusions of the PCRA court are “supported by the record and free of legal error.” Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.Super. 2020) (citation omitted).

White argues that because the PCRA court found as a fact that he had not explicitly asked plea counsel to file a direct appeal, and “the extreme likelihood of this finding being disturbed by this Honorable Court,” he will no longer pursue his claim that plea counsel was ineffective per se for refusing to

file an appeal. White’s Br. at 12. Instead, White now argues that plea counsel

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4 The court also issued a Pa.R.Crim.P. 907 notice of its intention to dismiss

the issues for which it did not hold a hearing. White did not respond, and the court dismissed the petition in relation to those issues as well.

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was ineffective for failing to adequately consult with him regarding the appeal. Id. at 12-13 (citing Commonwealth v. Bath, 907 A.2d 619, 623 (Pa.Super. 2006)). In support of this theory, White asserts he “had already informed [plea counsel], immediately following his sentencing in an open plea, where he had no idea of the outcome, of his desire for reconsideration of that sentence.” Id. at 13. White points out that plea counsel testified that “when he spoke to [White] at Berks County Prison, [White] immediately began asking about a motion for reconsideration.” Id. Counsel testified that he advised White that he thought the sentence was fair, but never explained how White responded to counsel’s advice. Id. White contends “[t]here can be no doubt that had counsel properly consulted with him, [White] would have requested an appeal.” Id. at 14.

Whether a defendant has been deprived the right to effective assistance of counsel due to counsel’s failure to consult with him regarding a potential appeal is a different issue than whether counsel was ineffective for failing to file a direct appeal when explicitly asked to do so. See Bath, 907 A.2d at 622- 23. Whereas “the unjustified failure to file a requested direct appeal is ineffective assistance of counsel per se,” counsel’s duty to consult with his client regarding the advantages and disadvantages of filing an appeal only arises when “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

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counsel that he was interested in appealing.” Id. (quotation marks and citation omitted).

Here, White argued to the PCRA court that he had asked his counsel to file a direct appeal, and that counsel was ineffective per se for ignoring this request. White did not argue to the PCRA court, as he does to this Court, that he had reasonably demonstrated a desire to appeal and that counsel had failed to adequately consult with him regarding a potential appeal. He has therefore waived this issue for appeal. See Pa.R.A.P. 302(a); Commonwealth v. Rosser, 135 A.3d 1077, 1087 (Pa.Super. 2016) (finding issue waived where appellant switched legal theory on appeal). Moreover, White made no mention of this issue in his Rule 1925(b) statement,5 and the trial court accordingly did not address it in its Rule 1925(a) opinion. White has waived the issue in this manner as well. See Pa.R.A.P. 1925(b)(4)(vii).

Even if White had not waived the issue, we would find it meritless. Plea counsel testified that he advised White regarding his post-sentence and appeal rights before White pleaded guilty. See N.T., 6/24/20, at 18-21. Directly after sentencing, plea counsel discussed with White whether he should file a post- sentence motion for reconsideration of his sentence. Id. at 21-22. They discussed a post-sentence motion again a few days later, at the prison. Id.

Counsel advised White that it was White’s decision whether to file a post-

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5 In his statement, White describes his issue as follows: “The PCRA Court erred

in determining that Mr. White did not request a direct appeal to be filed by counsel and in denying his direct appeal rights to be reinstated.” Pa.R.A.P. 1925(b) Statement, 8/11/20, at 1.

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sentence motion. Id. at 22. Counsel testified “there was never any discussion about an appeal.” Id.; see also id. at 25. The PCRA court credited counsel’s testimony, and we defer to the court’s credibility determination. White has therefore failed to prove that he reasonably demonstrated a desire to appeal and that counsel failed to consult with him.6 Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/2/2021

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6 White does not argue that a rational defendant in his position would want to

appeal, or that an appeal would not have been frivolous, and we therefore need not address whether counsel had a duty to consult on this basis.