J-S02034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNESYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARIO KINDELAN-RAY
Appellant No. 1343 EDA 2015
Appeal from the PCRA Order entered April 24, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No: CP-39-CR-0001777-2011
BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED April 27, 2016
Appellant, Mario Kindelan-Ray, appeals from the order the Court of
Common Pleas of Lehigh County entered on April 24, 2015 dismissing his
petition pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-46. Upon review, we affirm.
The underlying facts and procedural history were adequately
summarized by the PCRA court in its April 24, 2015 opinion. See PCRA
Court Opinion, 4/24/15, at 1-2. Briefly, on December 1, 2011, following a
jury trial, Appellant was convicted of providing false identification to law
enforcement officers. The jury acquitted Appellant of two counts of
possession with intent to deliver controlled substances and two counts of
possession of controlled substances. On the same day, the sentencing court
imposed a six to twelve months’ imprisonment in the county jail. Appellant
J-S02034-16
did not a file post-sentence motion or direct appeal. On March 14, 2012,
Appellant filed a PCRA petition, raising claims of ineffective assistance of trial
counsel. The PCRA court dismissed the PCRA petition on the basis Appellant
was no longer serving the subject sentence. On appeal, this Court found the
PCRA court erred in concluding Appellant was ineligible for PCRA relief based
on its finding Appellant had served his sentence. Accordingly, we vacated
the order and remanded to the PCRA court for further proceedings. See
Commonwealth v. Kindel[a]n-Ray, No. 336 EDA 2014, unpublished
memorandum at 8 (Pa. Super. filed November 17, 2014). On remand, the
PCRA court held a hearing on Appellant’s PCRA petition and eventually
denied it as meritless. PCRA Court Order, 4/24/15. This appeal followed.
In this appeal, Appellant presents two ineffective assistance of counsel
claims, which we review under the following standards.
Counsel is presumed effective, and the petitioner bears the
burden of proving otherwise. To prevail on an ineffectiveness
claim, the petitioner must plead and prove, by a preponderance
of the evidence, the following three elements: (1) the underlying
claim has arguable merit; (2) counsel had no reasonable basis
for his or her action or inaction; and (3) the petitioner suffered
prejudice as a result of counsel’s action or inaction.
Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013) (citations
omitted).
In his first claim, Appellant argues that the PCRA court erred in not
finding trial counsel ineffective for failure to file an appeal to this Court,
-2-
J-S02034-16
despite Appellant asking counsel to do so in a timely manner. Appellant’s
Brief at 8. We disagree.
In reviewing the denial of PCRA relief, we examine whether the
PCRA court’s determinations are supported by the record and are
free of legal error. The PCRA court’s credibility determinations,
when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA
court’s legal conclusions.
Id. at 603 (citations omitted).
Although Appellant testified that he (personally, and through family
members and friends) repeatedly attempted to contact counsel by phone
because he wanted to appeal the conviction, the PCRA court found
Appellant’s testimony not credible. In fact, the PCRA court credited counsel
who stated she did not receive any phone call or message from Appellant or
from others on his behalf. See PCRA Court Opinion, 4/24/15, at 3-4. As a
reviewing court, we are unable to make credibility determinations or
substitute our judgment for that of the PCRA court. See Roney;
Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009). Accordingly,
because the record supports the PCRA court’s credibility determinations, we
will not disturb them.
In his next claim, Appellant argues counsel was ineffective for failing to
advise him of his appeal rights. Appellant’s entire “analysis” of this issue
consists of two conclusory sentences: (i) the claim has arguable merit “since
counsel’s act or omission conflict[s] with . . . the [c]onstitutional right to
direct appeal;” and (ii) “there was no reasonable strategy” for the omission
-3-
J-S02034-16
and, but for counsel’s omission, the outcome would have been different.
Appellant’s Brief at 9. Appellant’s argument lacks not only analysis but also
authority for his claim. The claim is, therefore, waived. See, e.g.,
Commonwealth v. Hakala, 900 A.2d 404, 407 (Pa. Super. 2006)
(“Because [appellant] fails to offer either analysis or case citation in support
of the relief he seeks, we deem all of his questions waived.”).
Even if we were to conclude otherwise, the claim is meritless. As
noted above, Appellant failed to prove he asked counsel to file an appeal.
The ineffectiveness inquiry, however, does not end here. Indeed, “[w]here a
defendant does not ask his attorney to file a direct appeal, counsel still may
be held ineffective if he does not consult with his client about the client’s
appellate rights.” Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa.
Super. 2011). This standard imposes a duty on counsel to adequately
consult with defendant as to the advantages and disadvantages of an appeal
where there is reason for counsel to think a defendant would want to appeal.
See Roe v. Flores-Ortega, 528 U.S. 470 (2000); Commonwealth v.
Touw, 781 A.2d 1250 (Pa. Super. 2001). Specifically, Roe and Touw
impose a constitutional duty on appellate counsel to adequately consult with
the defendant as to advantages and disadvantages of an appeal only when
“(1) . . . a rational defendant would want to appeal (for example, because
there are non-frivolous grounds for appeal), or (2) . . . this particular
defendant reasonably demonstrated to counsel that he was interested in
-4-
J-S02034-16
appealing.” Touw, 781 A.2d at 1254 (quoting Flores-Ortega, 528 U.S. at
480). Here, the PCRA court found (and we agree) that Appellant failed to
demonstrate he was interested in appealing. The only inquiry remains
whether a rational defendant in his position would want to appeal. The
PCRA court noted that Appellant “was acquitted of the most serious charges,
and it is difficult to see how, under those circumstances, a rational defendant
would want to appeal.” PCRA Court Opinion, 4/24/15, at 4 (internal
quotation marks omitted). We also note Appellant nowhere detailed which
non-frivolous issue(s) he intended to raise on direct appeal. In light of the
foregoing, even if preserved for our review, the claim would be meritless.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2016
-5-