J-S34044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRAVIS ELLIOT DARROW
Appellant No. 1415 MDA 2015
Appeal from the PCRA Order July 14, 2015
In the Court of Common Pleas of Wyoming County
Criminal Division at No(s): CP-66-CR-0000055-2013
BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 17, 2016
Travis Darrow appeals from an order denying his petition for relief
under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. We affirm.
Darrow repeatedly assaulted his 16-month-old daughter over a 4-
month period, causing this helpless infant to suffer a broken arm and bruises
to her forehead, cheek, abdomen, left armpit, left thigh and lower left back
region. Darrow was charged with aggravated assault under 18 Pa.C.S. §
2702(a)(1), graded as a first degree felony, and other offenses. On April 5,
2013, pursuant to a negotiated plea agreement, Darrow pled guilty to one
count of aggravated assault in return for the Commonwealth’s agreement to
withdraw the other charges.
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The Commonwealth served notice of its intent to seek a mandatory
minimum sentence of five years’ imprisonment under 42 Pa.C.S. § 9718,
because the victim was under the age of 13.
At the time of sentencing on May 8, 2013, Darrow’s prior record score
was 0. Absent application of section 9718, the Sentencing Guidelines called
for a standard minimum range sentence of 36-54 months and an aggravated
minimum range sentence of up to 66 months. The statutory maximum for a
first degree felony was 20 years’ imprisonment, or 240 months. See 18
Pa.C.S. § 1103. The court sentenced Darrow to a minimum of 66 months’
imprisonment, six months more than the mandatory minimum, and a
maximum of 180 months’ imprisonment. The court expressly stated on the
sentencing order that the sentence was a mandatory minimum.
Darrow did not file post-sentence motions or a direct appeal. On June
17, 2013, ten days after his direct appeal period expired, the United States
Supreme Court held in Alleyne v. United States, – U.S. –, 133 S.Ct. 2151
(2013), that the Sixth Amendment prohibits imposition of a mandatory
minimum sentence based on a fact which is not submitted to the jury or
proven beyond a reasonable doubt.
On April 28, 2014, Darrow filed a timely PCRA petition alleging his
mandatory minimum sentence was illegal under Alleyne. Through counsel,
Darrow subsequently filed an amended PCRA petition, again claiming that his
sentence was unlawful under Alleyne. In addition, Darrow’s amended
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petition claimed that guilty plea counsel was ineffective for failing to file
post-sentence motions or a direct appeal seeking relief (1) under Alleyne
and (2) on the ground that his sentence in the aggravated range of the
guidelines, above the mandatory minimum, was excessive.
The PCRA court convened a hearing in which guilty plea counsel and
Darrow testified. The court then ordered Darrow to file a post-hearing brief.
Darrow’s counsel filed a brief thirty days after the hearing. Among other
arguments, the brief raised an issue that had not been mentioned in the
original or amended PCRA petition: guilty plea counsel’s ineffectiveness for
failing to consult with Darrow so that Darrow could make an informed
decision about whether to appeal. Brief In Support Of Amended PCRA
Motion, at 9-10.
On July 14, 2015, the court denied Darrow’s amended PCRA petition.
Darrow filed a timely appeal, and both Darrow and the trial court complied
with Pa.R.A.P. 1925.
Darrow raises two issues in this appeal:
1. Did the trial court err in failing to conclude that [guilty plea]
counsel rendered ineffective assistance of counsel in failing to
file post-sentence motions challenging the legality and
discretionary aspect of [Darrow’s] sentence and, thereby, failing
to preserve such a challenge and depriving [Darrow] of a direct
appeal[?]
2. Did the trial court err in failing to conclude that [guilty plea]
counsel rendered ineffective assistance of counsel in failing to
file an appeal to the Superior Court challenging [Darrow’s]
sentence?
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Brief For Appellant, at 3.
In reviewing the denial of PCRA relief, we examine whether the PCRA
court's determination is supported by the record and free of legal error.
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.2014). “The scope of
review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the trial
level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014).
Both of Darrow’s issues on appeal raise claims of ineffective assistance
of counsel. We address them together.
We presume that guilty plea counsel was effective unless the PCRA
petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,
1177 (Pa.1999). To succeed on a claim of ineffective assistance, the
petitioner must plead and prove that (1) the underlying claim is of arguable
merit; (2) counsel’s performance lacked a reasonable basis; and (3)
counsel’s ineffectiveness caused the petitioner prejudice. 42 Pa.C.S. §
9543(a)(2)(ii); Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa.2003).
The petitioner bears the burden of proving each of these elements, and his
“failure to satisfy any prong of the ineffectiveness test requires rejection of
the claim of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409,
419 (Pa.2009).
Darrow asserts that guilty plea counsel was ineffective for failing to file
post-sentence motions or a direct appeal challenging the legality of his
sentence under Alleyne and the excessiveness of his sentence. Before a
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court will find counsel ineffective for failing to file a direct appeal, the
petitioner must prove that he requested an appeal and that counsel
disregarded that request without justification. See Commonwealth v.
Lantzy, 736 A.2d 564, 572 (Pa.1999); Commonwealth v. Knighten, 742
A.2d 679, 682 (Pa.Super.1999). Similarly, before we will find counsel
ineffective for failing to file post-sentence motions, the petitioner must prove
that he requested counsel to file post-sentence motions but that counsel
disregarded his request. See Commonwealth v. Velasquez, 563 A.2d
1273, 1275 (Pa.Super.1989) (“[c]laims of ineffectiveness are not sufficient
when presented in a vacuum …; nor can counsel be deemed ineffective for
failing to do what he was not requested to do”).
Here, the PCRA court found that it advised Darrow during sentencing
of his right to file post-sentence motions and an appeal, but nevertheless,
Darrow did not request counsel to file any post-sentence motions or appeal.
Pa.R.A.P. 1925(a) Opinion, at 3. The record confirms this finding. Both
guilty plea counsel and Darrow testified during the PCRA hearing that
Darrow did not ask counsel to file post-sentence motions or an appeal.
Thus, Darrow’s argument that counsel was ineffective for failing to file post-
sentence motions or an appeal is devoid of merit.
Towards the end of his appellate brief, Darrow argues that guilty plea
counsel was ineffective for failing to consult with Darrow as to whether to
appeal, thus preventing Darrow from making an informed decision on this
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issue. Brief For Appellant, at 19-20. Darrow waived this issue by failing to
plead it in his original or amended PCRA petitions.
“PCRA claims are more civil than criminal in nature, which places the
burden of moving the case forward on the party in the plaintiff's position,
who in this context is the PCRA petitioner.” Commonwealth v. Smith, 121
A.3d 1049, 1054 (Pa.Super.2015). Thus, the PCRA petitioner must plead
and prove all grounds for relief. See 42 Pa.C.S. § 9543(a) (requiring PCRA
petitioner to “plead and prove” grounds for relief); see also Pa.R.Crim.P.
902(B) (“[f]ailure to state such a ground [for relief] in the [PCRA] petition
shall preclude the defendant from raising that ground in any proceeding for
post-conviction collateral relief”). The petitioner must obtain leave of court
before amending his petition to add new grounds for relief. See
Pa.R.Crim.P. 905(A). The petitioner waives any issue that he fails to raise in
compliance with these rules. See Commonwealth v. Elliott, 80 A.3d 415,
430 (Pa.2013) (in capital murder case, defendant waived for postconviction
and appellate review issue as to whether trial counsel rendered ineffective
assistance by failing to meet with him personally prior to trial or otherwise
prepare for trial; defendant did not allege in PCRA petition allegation that
trial counsel was ineffective for failing to meet with him prior to trial, and
defendant did not obtain permission to amend his petition to include issue);
Commonwealth v. Porter, 35 A.3d 4, 14 (Pa.2012) (petitioner may not
raise new claims by merely supplementing pending PCRA petition without
court authorization, because to do so would “wrongly subvert the time
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limitation and serial petition restrictions of the PCRA”); Commonwealth v.
Rigg, 84 A.3d 1080, 1084 (Pa.Super.2014) (“Appellant's underlying trial
counsel ineffectiveness claim is waived for failing to raise it before the PCRA
court in his pro se petition”).
As stated above, Darrow claimed in his amended PCRA petition that
guilty plea counsel was ineffective for failing to file post-trial motions or an
appeal. Darrow did not claim in this petition, however, that guilty plea
counsel was ineffective for failing to consult with him about whether to file
these papers. The two claims are not the same. In Commonwealth v.
Touw, 781 A.2d 1250 (Pa.Super.2001), the petitioner alleged that counsel
was ineffective for failing to consult with him about whether to file an
appeal. We held that the attorney’s failure to consult with the defendant
“does not fit” within Lantzy’s rule that counsel is ineffective for disregarding
the defendant’s request to file a direct appeal. Touw, 781 A.2d at 1253.
Thus, Darrow’s claim in his amended PCRA petition that counsel failed to file
post-trial motions or an appeal was not equivalent to a claim that counsel
failed to consult with Darrow about whether to appeal. Nor did Darrow
request leave to amend his PCRA petition to add a failure-to-consult claim;
he simply inserted this claim into a post-hearing memorandum without
permission. Consequently, he has waived this claim. See Elliott, Porter,
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supra (petitioner cannot add new PCRA claims without first obtaining leave
of court to amend petition).1
For these reasons, we affirm the order denying PCRA relief to Darrow.2
____________________________________________
1
Even if Darrow did not waive this issue, he failed to demonstrate during his
PCRA hearing that guilty plea counsel failed to consult with him about
whether to appeal. Guilty plea counsel first testified that Darrow did not ask
him to appeal but then stated that he did not have any recollection of the
day of sentencing. N.T., 5/22/15, at 6. Neither PCRA counsel nor the
Commonwealth asked guilty plea counsel whether he actually consulted with
Darrow about whether to appeal. Darrow testified that he did not ask guilty
plea counsel to appeal because he was “afraid” to ask. Id. at 32, 38-39.
But once again, neither PCRA counsel nor the Commonwealth asked Darrow
whether guilty plea counsel actually consulted with him about whether to
appeal. Thus, Darrow failed to meet his burden of proving that guilty plea
counsel was ineffective for failing to fulfill his duty of consultation.
2
For the sake of completeness, we note that Darrow’s original and PCRA
petitions challenged the legality of his sentence under Alleyne, a separate
issue than a claim that counsel was ineffective. Compare 42 Pa.C.S. §
9543(a)(2)(ii) (PCRA petition may include claims of ineffective assistance)
with 42 Pa.C.S. § 9543(a)(2)(vii) (PCRA petition may challenge “the
imposition of a sentence greater than the lawful maximum”). In this appeal,
however, Darrow abandoned his challenge to the legality of his sentence.
Even if Darrow had continued to mount a section 9543(a)(2)(vii) challenge
to the legality of his sentence in this appeal, it would not have helped him.
This Court has declined to give Alleyne retroactive effect to cases on timely
collateral review when the defendant's judgment of sentence became final
before Alleyne was decided. See Commonwealth v. Riggle, 119 A.3d
1058 (Pa.Super.2015). Darrow’s judgment of sentence became final on
June 7, 2013, the expiration date for his direct appeal, ten days before the
Supreme Court issued its decision in Alleyne. See 42 Pa.C.S. 9545(b)(3)
(for purposes of PCRA, “a judgment becomes final at the conclusion of direct
review … or at the expiration of time for seeking the review”). Thus,
Alleyne does not apply retroactively to his case. See Riggle, supra;
compare Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super.2015)
(defendant entitled to resentencing under Alleyne where (1) he was
sentenced 12 days before issuance of Alleyne, (2) his direct appeal period
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
_______________________
(Footnote Continued)
expired 18 days after issuance of Alleyne, (3) defendant did not take direct
appeal, but (4) defendant filed timely PCRA petition within one year after
date of sentence).
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