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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MEREDITH DESHAWN PENN,
Appellant No. 720 MDA 2014
Appeal from the PCRA Order April 15, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003847-2010
BEFORE: BOWES, PANELLA, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 07, 2014
Meredith Deshawn Penn appeals from the order entered April 15,
2014, denying his first counseled PCRA petition. We affirm.
A jury found Appellant guilty of burglary, criminal conspiracy, theft by
unlawful taking, criminal mischief, and carrying a firearm without a license.
-in at a
residence in Salisbury Township, Lancaster, Pennsylvania. Appellant was
observed by Michael Moffet fleeing from the residence. The witness initially
heard a noise from the home and walked over to investigate. He saw a
smashed window and chased Appellant before Appellant entered a Nissan
vehicle with a Pennsylvania license plate EXB-5075. Police learned that a
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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handgun, video games, and money were taken from the home. Further
investigation revealed fingerprints belonging to Appellant and Matthew
Robles Evans, the owner of the aforementioned car, at the point of entry into
the home.
Following the verdict, the court granted a motion for judgment of
acquittal on the firearms violation. The court initially sentenced Appellant to
four and one-half to fifteen years incarceration. Specifically, it imposed
consecutive one-and-one-half-to-five-year sentences on each count of
burglary, conspiracy, and theft by unlawful taking. Appellant timely filed a
motion to modify his sentence on May 14, 2012. The court granted that
motion in part, and direc
concurrent with the burglary charge on July 17, 2012. Accordingly,
Counsel for Appellant informed his client of the modified sentence by
letter on July 31, 2012. Appellant responded on August 6, 2012, thanking
counsel for his representation. Appellant did not ask counsel to file an
appeal. Thereafter, on December 28, 2012, Appellant filed a motion to
modify and reduce his sentence nunc pro tunc, and alleged ineffective
assistance of counsel. The court properly treated the motion as a timely
PCRA petition, and appointed counsel on January 8, 2013. PCRA counsel
rights, and the court conducted a hearing on January 2, 2014.
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At the evidentiary hearing, trial counsel testified that Appellant did not
ask him to file an appeal, and if Appellant had requested such an appeal,
counsel would have filed it. Counsel indicated that he provided Appellant
with his appellate rights before the initial sentencing and informed him of the
Appellant informing him of his new sentence, counsel set forth that Appellant
had
with you that such an appeal was of little benefit and that if we could reduce
noted, Appellant responded to this letter by
thanking counsel. In addition, Appellant requested that counsel provide him
with copies of his motions and orders related to the case. Appellant did not
ask counsel to file an appeal.
The PCRA court directed the parties to submit briefs and ultimately
timely appeal ensued. The PCRA court directed Appellant to file and serve a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Appellant complied, and the court indicated that its reasons for the denial
could be found in its April 15, 2014 opinion. The matter is now ready for
when counsel was ineffective by failing to protect and preserve the
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Appellate review of a PCRA matter is guided by well-ensconced legal
t Commonwealth v. Henkel, 90
A.3d 16, 20 (Pa.Super. 2014) (en banc). In performing this review, we
examine the evidence of record and the factual findings of the PCRA court.
Id
PCRA court and will not disturb those findings unless they have no support in
Commonwealth v. Pander, 2014 PA Super 201, *3 (en
banc
standard of review is de novo Henkel,
supra at 20.
Appellant asserts that trial counsel was ineffective in failing to
adequately consult with him about his appellate rights and file a direct
Roe v. Flores-Ortega, 528 U.S. 470
(2000); Commonwealth v. Touw, 781 A.2d 1250 (Pa.Super. 2001)). In
this scenario, this Court in Commonwealth v. Markowitz, 32 A.3d 706
(Pa.Super. 2011), outlined the relevant law as follows.
Where counsel has not advised his client about the client's
appellate rights, the question becomes whether that failure
caused actual prejudice to the petitioner, i.e., 's
deficient failure to consult with him about an appeal, he would
Flores Ortega, supra at 484, 120
S.Ct. 1029. In analyzing whether there is a constitutional
mandate to consult with a defendant about his appellate rights,
the Supr
rational defendant would want to appeal (for example, because
there are nonfrivolous grounds for appeal), or (2) that this
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particular defendant reasonably demonstrated to counsel that he
was interested in Id. at 480, 120 S.Ct. 1029.
Where a petitioner can prove either factor, he establishes that
his claim has arguable merit.
In deciding whether the petitioner suffered actual
prejudice, the High Court listed several relevant factors. For
example, did the petitioner plead guilty, thereby decreasing the
number of appealable issues? Id. Pertinent considerations also
include any instructions given by the court with respect to the
defendant's right to appeal as well as evidence of nonfrivolous
grounds for appeal.
Id. at 716.
Instantly, counsel did inform Appellant of his appellate rights. He did
so when Appellant was initially sentenced and again when he instructed him
that he had thirty days to appeal from the modified sentence. Appellant did
not demonstrate any interest in appealing; instead, writing to counsel to
thank him for his representation.
While Appellant argues that the fact that he wished counsel to file a
motion to modify his sentence indicates he wanted to appeal if his motion
was not granted in full, we disagree. Counsel expressly set forth in his letter
to Appellant that both parties agreed that an appeal wa
his minimum sentence was reduced to three years. Appellant neither
refuted that suggestion nor hinted that he desired an appeal. Here, counsel
was neither per se ineffective for failing to file a requested direct appeal, cf.
Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1998), nor ineffective under
the traditional ineffectiveness test for not adequately consulting with his
client since he did instruct his client as to his appellate rights.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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