Harrington v. Gillis

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit

7-11-2006

Harrington v. Gillis
Precedential or Non-Precedential: Precedential

Docket No. 02-2419

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 02-2419
____________

SAMUEL HARRINGTON
Appellant

v.

FRANK D. GILLIS; THE DISTRICT ATTORNEY OF THE
COUNTY OF CHESTER, ANTHONY A. SARCIONE; THE
ATTORNEY GENERAL OF THE STATE OF PA, MICHAEL
FISHER

____________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 01-cv-03617)
District Judge: Honorable Franklin S. Van Antwerpen
____________

Argued April 24, 2006

Before: FUENTES, STAPLETON, and ALARCÓN,* Circuit
Judges.

(Opinion filed: July 11, 2006)
____________

*
The Honorable Arthur L. Alarcón, Senior Judge, United
States Court of Appeals for the Ninth Circuit, sitting by
designation.
Mary Gibbons, Esquire. (Argued)
600 Mule Road: #16
Holiday Plaza III
Toms River, NJ 08757

Counsel for Appellant

Nicholas J. Casenta, Jr., Esquire (Argued)
Joseph W. Carroll, Esquire
Office of District Attorney
17 North Church Street
Suite 218
Courthouse Annex-2nd Floor
West Chester, PA 19380

Counsel for Appellees

____________

OPINION OF THE COURT
____________

ALARCÓN, Circuit Judge.

Mr. Samuel Harrington appeals from the District Court’s
order denying his state-prisoner petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Mr. Harrington contends
that he was denied his Sixth Amendment right to effective
assistance of counsel when trial counsel failed to file a notice of
appeal. We vacate the decision of the District Court and
remand.
I

On April 27, 1996, Mr. Harrington collided with two
vehicles while driving under the influence of alcohol. One
driver died as a result of the collision, and the other sustained a
broken ankle. Mr. Harrington retained attorney Robert J.

2
Donatoni to represent him.1 The retainer agreement, dated May
10, 1996, states in relevant part: “I [Mr. Donatoni] am required
by the rules that govern the conduct of lawyers in the
Commonwealth of Pennsylvania to place our fee agreement in
writing. As we agreed, my total fee to represent you in
connection with this matter will be Twenty Five Thousand
dollars.” The agreement also describes the approaching
arraignment and states: “I, in turn, will enter my appearance on
your behalf in the Court of Common Pleas of Chester County.
The entry of appearance is a certification to the Court that I will
represent you throughout the conclusion of these proceedings.”

Mr. Harrington pled guilty to Aggravated Assault by
Vehicle While Driving Under the Influence (“DUI”), Homicide
by Vehicle While DUI, and DUI. The trial court accepted Mr.
Harrington’s guilty plea on April 7, 1997. At a sentencing
hearing on June 3, 1997, the prosecution presented victim impact
statements from the living victim and the deceased victim’s
father, friends, and pastor. The prosecution detailed Mr.
Harrington’s criminal record, including four prior convictions
for DUI. An extensive pre-sentencing investigation report noted
Mr. Harrington’s lack of remorse and “apparent inability to
maintain sobriety.” At the sentencing hearing, Mr. Harrington
accepted responsibility for his crimes, expressed remorse, and
described his successful participation in rehabilitation programs
since the incident. The court “found this to be a case in the
aggravated range, ” and sentenced Mr. Harrington to a total of
ten to twenty years on all charges.

1
Mr. Harrington’s Motion For Judicial Notice of State Court
Exhibit; Proposed Appendix III, is granted. See Fed. R. Evid.
201(b) (granting a court discretion to take judicial notice of a fact
“not subject to reasonable dispute”). The Proposed Appendix
consists of the retainer agreement between Mr. Donatoni and Mr.
Harrington. The motion is uncontested, see 3d Cir. R. 27.3, and
the retainer agreement was admitted without objection during the
evidentiary hearing on Mr. Harrington’s Pennsylvania Post-
Conviction Relief Act (“PCRA”) petition.

3
 Mr. Donatoni filed a Motion for Reconsideration of
Sentence. He argued that the sentence was “grossly in excess of
the Sentencing Guidelines.” Among other contentions, he
argued that the trial court failed to factor in his acceptance of
responsibility and treated the injuries suffered by the individual
with the broken ankle the same as the individual who died. The
Motion for Reconsideration of Sentence was denied on July 22,
1997. Mr. Donatoni forwarded a copy of the denial to Mr.
Harrington with a letter dated September 19, 1997, which read:
“Obviously none of us are [sic] happy with this and we will have
to talk about what options are available.”

Under Pennsylvania law, a challenge to the discretionary
aspects of a defendant’s sentence is not an appeal of right. 42
Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f); Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987). Rather, a defendant must
file an allowance of appeal with the Superior Court of
Pennsylvania. The Superior Court of Pennsylvania must then
determine whether there is a substantial question that the
sentence imposed is not appropriate under the Pennsylvania
Sentencing Code. 42 Pa.C.S.A. § 9781(b). Subsection (f) of §
9781 provides: “No appeal of the discretionary aspects of the
sentence shall be permitted beyond the appellate court that has
initial jurisdiction for such appeals.” Furthermore, Pa.R.A.P.
2119(f) requires that “[a]n appellant who challenges the
discretionary aspects of a sentence in a criminal matter shall set
forth in his brief a concise statement of the reasons relied upon
for allowance of appeal with respect to the discretionary aspects
of a sentence.”

Mr. Donatoni never discussed any available options with
Mr. Harrington. He never informed Mr. Harrington that if he
wished to appeal, he was first required to seek an allowance of
appeal. No application for an allowance of appeal was filed.

Mr. Harrington filed a petition pro se for an appeal nunc
pro tunc under the PCRA in the Pennsylvania Court of Common
Pleas, asserting ineffective assistance of counsel based on Mr.
Donatoni’s failure to file a notice of appeal. An evidentiary
hearing was held on May 11, 1999. Mr. Harrington testified at

4
the hearing that he had no contact with Mr. Donatoni after the
Motion for Reconsideration was denied. He also testified that he
made several attempts to contact Mr. Donatoni by making collect
phone calls, but that Mr. Donatoni’s office would not accept
charges. He testified to using Elizabeth Bireley, his girlfriend
and former wife, as an intermediary in his attempts to contact
Mr. Donatoni. Mr. Harrington further testified that he believed
Mr. Donatoni “was going to do every procedure that was
possible,” and that he had promised to file an appeal if the
Motion for Reconsideration was denied. He stated he wanted to
file an appeal and had been aware of the thirty-day time limit for
filing a notice of appeal, but never expressly requested that Mr.
Donatoni file a notice of appeal. There is no evidence he was
aware that he had to seek an allowance of appeal from the
Superior Court of Pennsylvania.

Ms. Bireley testified that she had made several
unsuccessful attempts to contact Mr. Donatoni by phone. On
August 9, 1997, she sent Mr. Donatoni a fax stating that Mr.
Harrington needed to speak with him. The fax included specific
questions regarding Mr. Harrington’s finances and property. She
testified that she left several phone messages informing Mr.
Donatoni that Mr. Harrington “needs to talk to you” and
requested that Mr. Donatoni contact her. In her communications
with Mr. Donatoni’s office, Ms. Bireley never stated that Mr.
Harrington wanted Mr. Donatoni to file a notice of appeal. Ms.
Bireley testified that Mr. Harrington continually expressed to her
his interest in filing a notice of appeal and that her attempts to
contact Mr. Donatoni were at Mr. Harrington’s behest.

Mr. Donatoni testified that he had no contact with Mr.
Harrington after the Motion for Reconsideration was denied and
did not recall discussing post-sentencing options with Mr.
Harrington. He acknowledged Ms. Bireley’s attempts to contact
him, and stated that he knew she was acting on Mr. Harrington’s
behalf. He testified that he received correspondence from Mr.
Harrington after the motion hearing, and that it was possible Mr.
Harrington had attempted to call him, although he did not recall.
He noted that it is standard practice in his office not to accept
collect calls when the requested attorney is not in the office. He

5
testified that neither Mr. Harrington nor Ms. Bireley
communicated Mr. Harrington’s desire to file a notice of appeal
in their attempts to contact him. He described all such
correspondence as dealing “with issues that are collateral to and
not central to the issue of an appeal.” Mr. Donatoni denied that
he ever told Mr. Harrington he would file an appeal.

On September 24, 1999, the Pennsylvania Court of
Common Pleas found Mr. Harrington’s testimony to be not
credible and denied him relief under PCRA. The Court stated:
“We reject Defendant’s testimony as credible and find that
Defendant did not request counsel to file a direct appeal.” In
reaching its conclusion, the Court focused on the fact that
“[n]owhere in the Fee Agreement does counsel agree to
undertake Defendant’s appeal to the Superior Court following
his sentence,” and that “[m]ore importantly, defense counsel
testified that the Defendant never left a message instructing him
to file a direct appeal.” The Court of Common Pleas issued a
Supplemental Opinion on October 5, 1999 to address the holding
of a subsequent Pennsylvania Supreme Court case,
Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999) (holding that
defense counsel lacked a reasonable basis for failing to inform
petitioner that sentence modification would be invalid and, thus,
petitioner was entitled to PCRA relief as a remedy for defense
counsel’s withdrawal of appeal). Reaffirming its original
opinion, the Court of Common Pleas concluded: “Lantzy, does
not change the result in this case.” The court explained that it
“rejected Defendant’s testimony and found that he did not
request his counsel to file a direct appeal in his case.”

Mr. Harrington appealed to the Pennsylvania Superior
Court. It affirmed the decision of the Court of Common Pleas
on July 28, 2000. In rejecting Mr. Harrington’s appeal, the
Superior Court relied on Commonwealth v. Harmon, 738 A.2d
1023 (Pa. Super. 1999). Pursuant to Harmon, failure to file a
notice of appeal cannot constitute ineffective assistance of
counsel unless the defendant asked counsel to file an appeal and

6
counsel failed to do so.2 Harmon, 738 A.2d at 1024. The
Superior Court quoted the Court of Common Pleas’s adverse
credibility finding and held: “The PCRA Court’s determination
of credibility is supported by the record, and therefore we will
not disturb it on appeal. Trial counsel was not ineffective for
failing to file a direct appeal.” The Superior Court also included
a footnote stating that Mr. Harrington’s intended basis for relief
on appeal - that his sentence was excessive - “lacks arguable
merit.”

Mr. Harrington petitioned for federal habeas corpus relief
on July 18, 2001. In his petition, he alleged three grounds for
relief: (1) that Mr. Donatoni’s failure to file a notice of appeal
denied him effective assistance of counsel; (2) that Mr.
Donatoni’s failure to file a notice of appeal denied him his right
to appeal; and (3) that his sentence was excessive. The District
Court for the Eastern District of Pennsylvania rejected Mr.
Harrington’s argument regarding his sentence as a basis for
federal habeas relief because it did not involve an issue of
federal law. Harrington v. Gillis, No. 01-CV-3617, slip op. at 1
(E.D. Pa. April 15, 2002) (approving and adopting the Report
and Recommendation of the Magistrate Judge). The Court
further determined: “Harrington’s remaining two claims are
related: that trial counsel was ineffective for failing to file a
direct appeal and, as a result, he was denied his right to an
appeal.” Applying the standards enunciated in Strickland v.

2
Harmon is a more recent enunciation of the rule expressed
in Commonwealth v. Dockins, 471 A.2d 851, 854 (Pa. Super.
1984). Both cases can be cited for the proposition that failure to
file a notice of appeal cannot constitute ineffective assistance of
counsel unless the defendant asked counsel to file an appeal and
counsel failed to do so. Id.; Harmon, 738 A.2d at 1024. This
connection is significant because the Superior Court cited Harmon
for the above proposition, Appellant’s App. Vol. II 168-69, and
Lewis v. Johnson, 359 F.3d 646 (3d Cir. 2004), a recent decision of
this Court, held Dockins’ expression of that same proposition
contrary to federal law under the Anti-terrorism and Effective
Death Penalty Act, 28 U.S.C. § 2254(d). Id. at 659.

7
Washington, 466 U.S. 668 (1984), and Roe v. Flores-Ortega,
528 U.S. 470 (2000), the District Court concluded:

Considering all these facts, and the reluctance of
the Pennsylvania appellate courts to consider
challenges to the discretionary aspects of
sentencing, this court is constrained to conclude
that counsel did not have reason to think that
Harrington would want to appeal, or that
Harrington reasonably demonstrated to counsel
that he was interested in appealing, his judgment
of sentence.

With regard to factual issues, the District Court noted that in the
Pennsylvania courts, “[t]o the extent that the testimony of trial
counsel and Harrington was contradictory, the credibility issue
was resolved in favor of trial counsel.” The District Court did
not disturb this credibility determination.

II

Mr. Harrington argues that the District Court erred in
concluding he was not denied the effective assistance of counsel.
This Court reviews de novo the District Court’s denial of habeas
corpus relief. Bamba v. Riley, 366 F.3d 195, 198 (3d Cir. 2004).
This Court’s review is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §
2254, “which provide[s] the federal courts with specific
standards for review of state court adjudications.” Fountain v.
Kyler, 420 F.3d 267, 272 (3d Cir. 2005). Under AEDPA, habeas
relief with respect to a claim adjudicated on the merits in state
court is only available where the state adjudication of the claim
“(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of evidence presented in the
State court proceeding.” § 2254(d); see also Williams v. Taylor,
529 U.S. 362, 412-13 (2000).

8
 The Supreme Court held in Williams that a state court
decision is “contrary to” clearly established federal law if “the
state court arrives at a conclusion opposite to that reached by
[the Supreme Court] on a question of law, or if the state court
decides a case differently than [the Supreme Court] has on a set
of materially indistinguishable facts.” Williams, 529 U.S. at 413;
see Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d
Cir. 1999) (for a decision to be ‘contrary to’ federal law,
“Supreme Court precedent requires an outcome contrary to that
reached by the relevant state court”). A state court decision
represents an unreasonable application of federal law where “the
state court identifies the correct governing legal principle from
[the Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Williams, 529 U.S.
at 413.
A

In Strickland v. Washington, 466 U.S. 668, 687 (1984),
the United States Supreme Court established a two-pronged test
to evaluate Sixth Amendment claims of ineffective assistance of
counsel. An individual making such a claim must show: (1) that
“counsel’s performance was deficient,” which is measured by
“reasonableness under prevailing professional norms;” and (2)
that counsel’s “deficient performance prejudiced the defense.”
Id. at 687-90.

Where the basis of a defendant’s ineffective assistance
claim is counsel’s failure to appeal, a more specific version of
the Strickland standard applies. Roe v. Flores-Ortega, 528 U.S.
at 484. In Flores-Ortega, the Supreme Court rejected a
California rule that “a habeas petitioner need only show that his
counsel’s failure to file a notice of appeal was without the
petitioner’s consent” in order to prove ineffective assistance of
counsel. Id. at 475-76. The Court deemed any such per se rule
“inconsistent with Strickland’s holding that ‘the performance
inquiry must be whether counsel’s assistance was reasonable
considering all the circumstances.’” Id. at 478 (quoting
Strickland, 466 U.S. at 688).

In place of a per se rule, the Court prescribed a

9
circumstance-specific analysis. Id. The first step in that analysis
is to determine whether counsel consulted 3 with his client
regarding an appeal:

the question whether counsel has performed
deficiently by not filing a notice of appeal is best
answered by first asking a separate, but antecedent,
question: whether counsel in fact consulted with
the defendant about an appeal . . . . If counsel has
consulted with the defendant, the question of
deficient performance is easily answered: Counsel
performs in a professionally unreasonable manner
only by failing to follow the defendant’s express
instructions with respect to an appeal. . . . If
counsel has not consulted with the defendant, the
court must in turn ask a second, and subsidiary,
question: whether counsel’s failure to consult with
the defendant itself constitutes deficient
performance.

Id. The Court in Flores-Ortega then prescribed a modified
version of the Strickland test to determine when such failure to
consult with a client regarding an appeal constitutes deficient
performance:

counsel has a constitutionally imposed duty to
consult with the defendant about an appeal when
there is reason to think either (1) a rational
defendant would want to appeal (for example,
because there are nonfrivolous grounds for
appeal), or (2) that this particular defendant
reasonably demonstrated to counsel that he was
interested in appealing.

3
The Court defined “consult” as “advising the defendant
about the advantages and disadvantages of taking an appeal and
making a reasonable effort to discover the defendant's wishes.”
Flores-Ortega, 528 U.S. at 478.

10
Id. at 480. A showing of either of these factors will prove
deficiency and therefore satisfy the first Strickland prong. Id. at
479-80.

To satisfy the prejudice prong in Strickland, “a defendant
must demonstrate that there is a reasonable probability that, but
for counsel’s deficient failure to consult with him about an
appeal, he would have timely appealed.” Id. at 484. The Court
identified factors that are likely to be relevant in making this
determination, id. at 480, including whether the defendant pled
guilty, id. at 485. The Court reasoned that a guilty plea
decreases the likelihood of appealable error and may indicate the
defendant’s desire to end all judicial proceedings quickly. Id. at
480. Other factors include the trial court’s instructions to the
defendant regarding his right to appeal and any waiver of a right
to appeal in a plea bargain agreement. Id. Evidence of
“nonfrivolous grounds for appeal” may also help prove the
second Strickland prong. Id. at 479-80. The Court also stressed
that a court adjudicating a claim of ineffective assistance of
counsel must take all relevant circumstances into account. Id. at
480, 485.

Additionally, in deciding whether the second Strickland
prong has been satisfied, “evidence that there were nonfrivolous
grounds for appeal or that the defendant in question promptly
expressed a desire to appeal will often be highly relevant.” Id. at
485. Although nonfrivolous grounds may support a defendant’s
claim, it “is unfair to require a . . . defendant to demonstrate that
his hypothetical appeal might have merit.” Id. at 486. A
defendant’s inability to demonstrate potential merit “will not
foreclose the possibility that he can satisfy the prejudice
requirement.” Id.
B

In this case, the Pennsylvania Superior Court’s decision
was contrary to federal law as determined by the United States
Supreme Court. The Pennsylvania Superior Court reviewed Mr.
Harrington’s claim of ineffective assistance of counsel under
Harmon, which stands for the proposition that “before a court
will find ineffectiveness of counsel for failing to file a direct

11
appeal, Appellant must prove that he requested an appeal and
that counsel disregarded this request.” 738 A.2d at 1024. The
Pennsylvania Superior Court held that because Mr. Harrington
did not ask counsel to file an appeal, he was not denied effective
assistance of counsel. The Court viewed this issue as
dispositive, and did not discuss Mr. Harrington’s ineffective
assistance claim any further. Id.

The Supreme Court has definitively rejected any per se
rules for adjudicating claims of ineffective assistance of counsel.
See Flores-Ortega, 528 U.S. at 478-79 (noting that a per se rule
“would be inconsistent with both our decision in Strickland and
common sense” and that “fail[ure] to engage in the
circumstance-specific reasonableness inquiry required by
Strickland . . . alone mandates vacatur”); Strickland, 466 U.S. at
687-88 (stating “the performance inquiry must be whether
counsel’s assistance was reasonable considering all the
circumstances” and that “[m]ore specific guidelines are not
appropriate”).

In Lewis v. Johnson, 359 F.3d 646 (3d Cir. 2004), this
Court invalidated the per se rule expressed in Dockins. Id. at
659. This Court held in Lewis that because the Dockins rule
“operates in much the same manner” as the rule struck down in
Flores-Ortega, its application to ineffective assistance claims
was contrary to established federal law. Lewis, 359 F.3d at 659.
Accordingly, the Pennsylvania Superior Court’s application of
the substantively identical Harmon rule in the instant case was
contrary to clearly established federal law as determined by the
Supreme Court. See § 2254(d).

C

The District Court concluded that Mr. Harrington could
not satisfy Flores-Ortega. It determined Mr. Harrington had not
reasonably demonstrated his interest in an appeal to Mr.
Donatoni because Mr. Harrington had pled guilty, could not
explain why he did not mention an appeal in his attempts to
contact trial counsel, and was aware of the thirty-day filing
deadline for his right to appeal. The Court also concluded that

12
Mr. Harrington failed to show that a rational defendant in his
situation would have sought an appeal. In so concluding, the
Court relied on the determination at the PCRA proceedings that
Mr. Harrington’s claims on appeal had no merit and on “the
reluctance of the Pennsylvania appellate courts to consider
challenges to the discretionary aspects of sentencing.”

After the District Court issued its judgment in this case,
this Court decided Lewis. In Lewis, this Court reviewed a §
2254 petition alleging injury to the petitioner’s Sixth
Amendment right to effective assistance of counsel under
Flores-Ortega. 359 F.3d at 650-51. As in the instant case,
counsel failed to consult with his state-prisoner client regarding
an appeal. Id. Mr. Lewis, like Mr. Harrington, had pled guilty
and was informed of his right to an appeal by the trial court. Id.
at 649-50. Also like the defendant in the instant matter, Mr.
Lewis attempted to contact trial counsel after his sentencing
hearing, but made no reference to an appeal. Id. Unable to
reach his attorney, Mr. Lewis filed a timely pro se motion to
withdraw his guilty plea. Id. at 650. A month later, his trial
counsel filed a “bare-boned” and untimely motion to withdraw
Mr. Lewis’s guilty plea. Id. at 660-61. The trial court did not
rule on the pro se motion and summarily denied trial counsel’s
motion. Id. at 650, 661. No notice of appeal was filed. Id.
Thereafter, in addition to further attempts to contact trial
counsel, Mr. Lewis wrote the Clerk of the Court, describing his
lack of contact with his attorney and requesting an “extension of
time, to prepare my case in the proper order.” Id. at 661
(emphasis omitted). He also complained to the Pennsylvania
State Bar Association and the Disciplinary Council that he was
unable to contact trial counsel. In addition, he wrote the Clerk
of the Court to inquire about the “present state, of any appeal
you may have submitted to the court on my behalf, and who is
the lawyer of record.” Id.

Mr. Lewis applied for post-conviction relief under the

13
Pennsylvania Post Conviction Hearing Act (“PCHA”),4 claiming
ineffective assistance of counsel because trial counsel failed to
appeal “despite having a meritorious argument that the guilty
plea was unlawfully induced.” Id. at 650. The Pennsylvania
Court of Common Pleas held an evidentiary hearing, found Mr.
Lewis to be not credible, and denied PCHA relief. Id. The
Pennsylvania Superior Court held that the Court of Common
Pleas’ adverse credibility determination was supported by the
record. It noted that “[t]he only evidence indicating the desire to
appeal was provided in the appellant’s testimony.” Id. It denied
Mr. Lewis’s arguments and “adhere[d] to the holding in
Dockins.” Id.

In denying habeas corpus relief, the district court did not
address the issue of ineffective assistance of counsel. Id. at 651.
This Court reversed. It held that (1) Flores-Ortega constitutes
“clearly established federal law” and is “old” under Teague v.
Lane, 489 U.S. 288 (1989), Lewis, 359 F.3d at 653-654, 657;
(2) the Dockins rule is contrary to clearly established federal law,
id. at 659; and (3) Mr. Lewis had satisfied the Strickland
standard as set forth in Flores-Ortega, id. at 660.

After holding the Dockins rule unconstitutional, this
Court stated that under normal circumstances, it would remand.
Id. However, the Court instead determined the record was
sufficient to consider the merits of Mr. Lewis’s claim under the
Flores-Ortega test. Id. This Court concluded that “it is clear
that [counsel] did not meet with Lewis or otherwise attempt to
contact him after the sentencing proceeding or the post-trial
motion was denied although Lewis indicated an interest in
challenging his conviction. Id. (emphasis added). This Court
went on to note:

[T]his record compels a finding that trial counsel's
conduct was objectively unreasonable. We can

4
The PCHA is the predecessor of the PCRA and was
superceded by the PCRA on April 13, 1988. Lewis, 359 F.3d at
650 n.1.

14
 think of no strategic reason to explain why
[counsel] failed to follow-up with Lewis either
following the sentencing or after the trial court
denied the motion to withdraw, and the
Commonwealth offers none. The ultimate decision
to appeal rests with the defendant. Thus, even if
[counsel] concluded that any appeal would be
frivolous, he could not disregard the evidence of
Lewis's unequivocal desire to challenge his
sentence and guilty plea, and abandon his client at
this critical stage in the proceedings.

Id. at 661 (citation omitted). This Court based this conclusion
on trial counsel’s testimony that he did not remember speaking
to Mr. Lewis after sentencing and that Mr. Lewis likely had
difficulty contacting him. Id. at 660. The Court observed that
the two motions to withdraw Mr. Lewis’ guilty plea “should
have put [counsel] on notice that Lewis may have been
interested in appealing.” Id. The Court also noted that although
the foregoing evidence was sufficient to satisfy the first
Strickland prong, additional evidence existed to “buttress” its
conclusion: “Trial counsel's testimony, coupled with the bare-
boned post-trial motion to withdraw the guilty plea that he filed
28 days late, evidences an inattention to his client's interests, a
neglect which caused Lewis to forfeit his right of appeal.” Id. at
660-61. This Court went on to explain that “[w]hile trial
counsel's testimony alone supports this finding, our decision is
further buttressed by the contemporaneous evidence of Lewis's
attempt to timely assert his appellate rights.” Id. at 661. The
“contemporaneous evidence” consisted of Mr. Lewis’s
correspondence with the Clerk of the Court and the Pennsylvania
State Bar and the Disciplinary Counsel. Id. at 661.

As to the second Flores-Ortega prong, the Court held that
“Lewis has demonstrated that there is a reasonable probability
that, but for counsel’s deficient performance, he would have
appealed. The contemporaneous evidence of Lewis’s desire to
challenge his conviction satisfies this requirement.” Id. The
Court again noted that additional evidence - Mr. Lewis’s
showing of nonfrivolous grounds for appeal - buttressed the

15
Court’s conclusion. Id. at 660-61.

D

As we have indicated, the District Court concluded that
Mr. Harrington had not “reasonably demonstrated to counsel that
he was interested in appealing.” 5 Our review of the record
indicates that the most reasonable conclusion to be drawn from
consideration of all of the circumstances in accordance with the
teachings of Lewis and Flores-Ortega is that Mr. Harrington
reasonably demonstrated an interest in appealing. Given our
determination of that issue, we further conclude that Mr.
Harrington is entitled to develop a record and secure a finding on
whether he would have appealed had his attorney given him the
counsel to which he was entitled.

The District Court in this case failed to consider all the
relevant circumstances as required by Flores-Ortega. Pursuant
to Flores-Ortega, “courts must take into account all information
counsel knew or should have known.” Flores-Ortega, 528 U.S.
at 480. “Only by considering all relevant factors in a given case
can a court properly determine whether . . . the particular
defendant sufficiently demonstrated to counsel an interest in
appeal.” Id.; see also Strickland, 466 U.S. at 688, 695-96 (“the
performance inquiry must be whether counsel’s assistance was
reasonable considering all circumstances”).

Most notably, the District Court’s order fails to reference
Mr. Donatoni’s letter to Mr. Harrington. After Mr. Harrington’s
motion for reconsideration was denied, Mr. Donatoni wrote a
letter to Mr. Harrington in which he stated: “Obviously, none of
us are [sic] happy with this and we will have to speak about what

5
The District Court concluded as well that Mr. Harrington
had not demonstrated that a rational defendant would have believed
there were non-frivolous grounds for appeal. Given our conclusion
on Mr. Harrington’s alternative ground for establishing counsel’s
deficient performance under Flores-Ortega, we do not reach this
issue.

16
options are available.” After he received this letter from his
counsel, Mr. Harrington called Mr. Donatoni “half a dozen
times” himself and attempted to contact Mr. Donatoni through
Ms. Bireley. He testified that he was able to leave only one
message because Mr. Donatoni’s office accepted his collect calls
from prison only once. Ms. Bireley testified that she and Mr.
Harrington were in contact throughout this period. When they
spoke, they “didn’t discuss anything but the case” because Mr.
Harrington wanted to appeal his sentence. Ms. Bireley testified
that she called Mr. Donatoni “almost daily, Monday through
Friday . . . if there were days I missed, it was only because I
couldn’t make the phone call at work.” Id. at 125. She faxed a
letter to Mr. Donatoni in which her frustration is palpable:

In the past week and a half I have left five
messages for you to contact me or Sam. More
importantly Sam. He needs to talk with you
concerning this situation. . . . [Ms. Bireley “also”
raises two other issues regarding filing bankruptcy
and a house sale before concluding the letter]. I
know you are very busy and there are some real
questions and problems that need to be answered.
You have been our only legal person to talk to. All
I am asking is a call to answer some of the
questions that Sam has.

Id. at 182.

At the PCRA hearing, Mr. Donatoni never contested that
he received numerous messages and Ms. Bireley’s fax. Rather,
he disputed their content. Mr. Donatoni did contest the portion
of Mr. Harrington’s testimony in which Mr. Harrington claimed
that Mr. Donatoni promised to represent him “all the way to the
Supreme Court if necessary at no extra charge to me” –
testimony the Court of Common Pleas subsequently found to be
not credible. But the Court of Common Pleas did not disbelieve
the testimony regarding Ms. Bireley and Mr. Harrington’s
attempts to contact Mr. Donatoni. In fact, the Court of Common
Pleas cited Ms. Bireley’s testimony for corroboration of its
conclusion that Mr. Donatoni never received an explicit request

17
to appeal.

It is undisputed that Mr. Donatoni suggested that Mr.
Harrington contact him “to speak about what options are
available” after the motion for reconsideration was denied. Mr.
Donatoni received numerous messages that Mr. Harrington was
attempting to contact him. “[A]ll the information counsel knew
or should have known,” Flores-Ortega, 528 U.S. at 480,
“should have put [counsel] on notice that [Mr. Harrington] may
have been interested in appealing.” Lewis, 359 F.3d at 660.

In Lewis, the defendant also evinced an interest in
appealing by filing a pro se motion, a step Mr. Harrington did
not take. However, in Lewis, this Court noted that “trial
counsel’s testimony alone supports [the] finding” that the client
had demonstrated an interest in appealing. Lewis, 359 F.3d at
661. This Court noted that this conclusion was “further
buttressed by the contemporaneous evidence of Lewis’s attempt
to timely assert his appellate rights.” Id. In Lewis, this Court did
not require that clients go it alone in the legal system before they
can be found to have demonstrated to their attorneys their
interest in appealing. The factual account of this case
sufficiently demonstrates Mr. Harrington’s interest in appealing.

The second prong of the Flores-Ortega analysis asks
whether there is “a reasonable probability that, but for counsel's
deficient failure to consult with him about an appeal, he would
have timely appealed.” Flores-Ortega, 528 U.S. at 484. On this
point, the evidence in Mr. Harrington’s case is less clear than the
evidence in Lewis. Thus, instead of granting relief, we remand
to the District Court to consider whether Mr. Harrington would
have appealed his conviction had Mr. Donatoni rendered
constitutionally adequate performance.

We should caution that this inquiry should not solely be
determined by the relative strength of any arguments Mr.
Donatoni would have made on appeal. On remand, the District
Court should not treat the perceived weakness of Mr.
Harrington’s arguments on appeal as a negative threshold
requirement in deciding whether he would have appealed after

18
receiving the benefit of counsel. The goal “of the effective
assistance guarantee of the Sixth Amendment is not to improve
the quality of legal representation, . . . [but rather] simply to
ensure that criminal defendants receive a fair trial.” Flores-
Ortega, 528 U.S. at 481 (quoting Strickland, 466 U.S. at 689).
The Sixth Amendment is equally violated when a defendant is
summarily denied access to an uncertain appeal and to a strong
appeal; either might affect the fairness of the trial. See id. at
482-83. “Those whose right to appeal has been frustrated should
be treated exactly like any other appellants; they should not be
given an additional hurdle to clear just because their rights were
violated at some earlier stage in the proceedings.” Rodriquez v.
United States, 395 U.S. 327, 330 (1969).

Drawing on these concepts, the Supreme Court in Flores-
Ortega “similarly conclude[d] . . . that it is unfair to require an
indigent, perhaps pro se defendant, to demonstrate that his
hypothetical appeal might have had merit before any advocate
has ever reviewed the record in his case in search of potentially
meritorious grounds for appeal.” Flores-Ortega, 528 U.S. at 486
(emphasis in original). Although Flores-Ortega states that non-
frivolous grounds for appeal is a potentially relevant factor in
adjudicating a case pursuant to Strickland, this factor is not
necessarily dispositive. Id. at 480, 485-86. This Court has
described non-frivolous grounds for appeal as one possible way
a defendant might prove a rational defendant in his situation
would have appealed, not as requirement for proving this. Id. at
480. In the context of the prejudice prong, “although showing
nonfrivolous grounds for appeal may give weight to the
contention that the defendant would have appealed, a
defendant’s inability to ‘specify the points he would raise were
his right to appeal reinstated’ will not foreclose the possibility
that he can satisfy the prejudice requirement where there are
other substantial reasons to believe he would have appealed.”
Id. at 486 (quoting Rodriquez, 395 U.S. at 330) (internal citation
omittted).

By contrast, the District Court discussed the merits of Mr.
Harrington’s appeal as follows:

19
 [T]he Superior Court considered the merits of
Harrington’s claim that his sentence was excessive
and concluded that the claim was without merit.
Considering all these facts, and the
reluctance of the Pennsylvania appellate courts to
consider challenges to the discretionary aspects of
sentencing, this court is constrained to conclude
that counsel did not have reason to think
Harrington would want to appeal, or that
Harrington reasonably demonstrated to counsel
that he was interested in appealing, his judgment
of sentence.

The District Court thus put too much weight on the strength of
Mr. Harrington’s arguments on appeal as a negative threshold
requirement.

The Pennsylvania Superior Court’s decision was contrary
to clearly established federal law in concluding that Mr.
Harrington was required to demonstrate he explicitly requested
his counsel to file an appeal. The District Court, although
applying the Flores-Ortega factors incorrectly concluded that
Mr. Harrington failed to demonstrate reasonably his desire to
appeal, and incorrectly treated as dispositive the potential merit
of Mr. Harrington’s appeal.

E

At oral argument, the State contended the only potential
issue for appeal was related to the discretionary aspects of the
sentence Mr. Harrington received. Citing Ross v. Moffitt, 417
U.S. 600 (1974), the State argued that an indigent defendant has
no right to the effective assistance of counsel to file an
application for leave to file an appeal from a discretionary
sentence.

In Ross, the Supreme Court held that a State is not
required to appoint counsel to aid an indigent defendant in
seeking to pursue a second-tier discretionary appeal to the
State’s highest court, or thereafter, certiorari review in the

20
Supreme Court. Ross, 417 U.S. at 610-12, 615-18. The Court
reasoned that error correction is not the reviewing court’s
primary function at those stages. Id. at 615.

This case is distinguishable from the circumstances
present in Ross. This distinction is made clear by the Supreme
Court’s decision in Halbert v. Michigan, 125 S. Ct. 2582 (2005).
In Halbert, an amendment to Michigan’s constitution provided
that a defendant who pled guilty or nolo contendere could appeal
to the Michigan Court of Appeals only by leave of that court. Id.
at 2586. Michigan put into place a procedure whereby a
defendant convicted by plea was required to file an application
for leave to appeal with the Michigan Court of Appeals. Id. at
2588. The court then could “‘grant or deny the application; enter
a final decision; [or] grant other relief.’” Id. (quoting Mich. Ct.
Rule 7.205(D)(2)). If the court granted leave, the case would
proceed as an appeal of right. Id. The Michigan Court of
Appeals routinely cited “lack of merit in the grounds presented”
as a basis for denying leave to appeal. Id. Michigan did not
allow appellate counsel to be appointed to indigent defendants
for the purpose of seeking leave to appeal. Id.

The Supreme Court determined in Halbert that
Michigan’s failure to provide for counsel for purposes of
seeking leave to appeal violated indigent defendants’ rights to
due process and equal protection. Id. at 2587. The Court
reasoned that although the defendants were not entitled to an
appeal as of right, they were “entitled to apply for leave to
appeal.” Id. at 2590. “Of critical importance,” the Court noted,
was that “the tribunal to which [a defendant] addresses [his or
her] application, the Michigan Court of Appeals, unlike the
Michigan Supreme Court, sits as an error-correction instance.”
Id. Additionally, in determining whether to grant leave to
appeal, the Michigan Court of Appeals necessarily considered
“the merits of the applicant’s claims.” Id. at 2591.

The Supreme Court distinguished Michigan’s procedure
from that at issue in Ross. In Ross, the Court recognized that
“leave-granting determinations . . . turned on considerations
other than the commission of error by a lower court, e.g., the

21
involvement of a matter of ‘significant public interest.’” Id.

By contrast, the Michigan Court of Appeals,
because it is an error-correction instance, is guided
in responding to leave to appeal applications by the
merits of the particular defendant’s claims, not by
the general importance of the questions presented.
Whether formally categorized as the
decision of an appeal or the disposal of a leave
application, the Court of Appeals’ ruling on a plea-
convicted defendant’s claims provides the first,
and likely the only, direct review the defendant’s
conviction and sentence will receive.

Id.

The procedure at issue in this case, like that at issue in
Halbert, involves an initial determination of the merits of the
appeal by the Superior Court of Pennsylvania. Therefore, a
defendant is entitled to an attorney for purposes of seeking
allowance of appeal. See Halbert, 125 S. Ct. at 2594.
Furthermore, the need for the assistance of an attorney with this
procedure is particularly acute. With regard to an appeal of
right, an attorney must perform only the ministerial task of filing
a notice of appeal in order to secure the rights of his or her client
to be heard. With regard to Pennsylvania’s procedure, however,
such a ministerial task does not suffice to preserve a defendant’s
rights. Rather, from the outset, a case must be made for the
merits of the appeal. A defendant is likely to require assistance
in making this initial case.

Because an appeal is a critical stage of criminal
proceedings, a defendant is entitled to the effective assistance of
counsel in perfecting an appeal. See Flores-Ortega, 528 U.S. at
483. Mr. Donatoni failed to discuss with his client the
Pennsylvania procedure that must be followed to exercise the
option of appealing from a discretionary sentence. He failed to
inform Mr. Harrington that he was required to clear a substantial
legal hurdle in order to assert his right to appeal. This deficient
performance possibly deprived him of an appellate review of his

22
contentions in violation of his Sixth Amendment rights. Id.

CONCLUSION

For the foregoing reasons, we will vacate the decision of
the District Court and remand to the Court for proceedings
consistent with this opinion.

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