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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLIFFORD MARK FOSS, :
:
Appellant : No. 370 MDA 2017
Appeal from the PCRA Order February 8, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0003185-2015
BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 16, 2018
Appellant, Clifford Mark Foss, appeals pro se from the Order entered in
the Berks County Court of Common Pleas dismissing his first Petition filed
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
After careful review, we affirm in part, vacate in part, and remand for an
evidentiary hearing limited solely to the issue of whether plea counsel was
ineffective for failing to file a direct appeal.
On September 29, 2015, Appellant entered an open guilty plea to one
count each of Burglary and Criminal Conspiracy. That same day, the trial
court sentenced Appellant to an aggregate term of 2½ to 10 years’
incarceration.1 Appellant did not file a direct appeal.
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1The court confirmed that counsel informed Appellant of his post-sentence
and appellate rights during the September 29, 2015 guilty plea and
(Footnote Continued Next Page)
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* Retired Senior Judge assigned to the Superior Court.
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Appellant timely filed a pro se PCRA Petition, his first, on June 13,
2016. Utilizing Form DC-198 promulgated by the Department of
Corrections, Appellant stated that he “was never talked to about my appeals
Roe vs. Flores-Ortega” and checked a box indicating that he was alleging
ineffective assistance of counsel. See PCRA Petition, filed 6/13/16, at 2-3.2
The PCRA court appointed counsel, who eventually filed a
Turner/Finley3 “No Merit” Letter and Motion to Withdraw with the PCRA
court on December 29, 2016. Counsel raised three potential claims in the
No Merit Letter: (1) plea counsel was ineffective for failing to inform
Appellant that he was entering an open guilty plea; (2) plea counsel was
(Footnote Continued) _______________________
sentencing hearing. N.T., 9/29/15, at 11. The certified record contains two
documents, signed by Appellant, that include detailed accounts of the
relevant post-sentence and appellate rights following entry of a guilty plea.
See “Defendant’s Acknowledgment of Post Sentence Procedures Following
Guilty Plea” at 1-2; “Statement Accompanying Defendant’s Request to Enter
a Guilty Plea,” dated 9/29/15, at 1-3.
We note that a defendant who enters a guilty plea is entitled to appeal the
discretionary aspects of his sentence that are not specifically negotiated by
the parties. See Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa.
Super. 2009) (finding that defendant could appeal the trial court’s exercise
of discretion with respect to the maximum term of his sentence even though
minimum term was negotiated by the parties and made part of the plea
agreement).
2 In Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000), the U.S. Supreme
Court rejected “a bright-line rule that counsel must always consult with the
defendant regarding an appeal,” and noted that the question is whether
counsel’s choices were reasonable.
3 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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ineffective in informing Appellant that he would have to go to trial if he did
not enter a guilty plea; and (3) a discretionary aspect of sentencing claim
regarding the court’s imposition of consecutive sentences. See
Turner/Finley No Merit Letter and Motion to Withdraw, 12/29/16, at 1-5.
Counsel concluded these claims lacked merit. Counsel did not address
Appellant’s claim that counsel never advised him about his appellate rights.
On January 17, 2017, the PCRA court issued an Order giving Appellant
notice pursuant to Pa.R.Crim.P. 907 of the PCRA court’s intent to dismiss the
PCRA Petition without a hearing. In an Opinion included in the Order, the
PCRA court opined that: (1) Appellant’s guilty plea was not unlawfully
induced because he was informed that he was entering an open guilty plea,
which Appellant acknowledged verbally and in writing; (2) Appellant’s guilty
plea was not unlawfully induced because counsel correctly informed
Appellant that Appellant would have to go to trial if he did not enter a guilty
plea; and (3) his sentence is not illegal because it was “well below the
statutory maximum.” PCRA Court Opinion, 1/17/17, at 3-5. Appellant did
not file a Response.
On February 8, 2017, the PCRA court dismissed Appellant’s PCRA
Petition. On March 7, 2017, the PCRA court granted PCRA counsel’s Petition
to Withdraw.
On February 24, 2017, Appellant filed a pro se Notice of Appeal. On
March 17, 2017, Appellant filed a pro se Pa.R.A.P. 1925(b) Statement of
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Errors. The PCRA court filed a Rule 1925(a) Opinion, in which it opined that
Appellant’s 1925(b) Statement of Errors was too vague and unspecific to
address Appellant’s claim. PCRA Court Opinion, filed 3/24/17, at 1-3
(stating, inter alia, “Petitioner has failed to include any specificity to the
allegations in this Statement of Errors or to develop the alleged errors in
such a way that this Court could address the issues; indeed, two of the three
errors do not even [comprise complete] sentences, much less arguable
claims for relief.”).
Appellant presents two questions for our review:
[I.] Whether the PCRA court erred when it accepted PCRA
counsel’s no merit letter and dismissed Appellant’s PCRA
Petition?
[II.] Whether the PCRA court erred when it requested that this
appeal be dismissed as no issues have been preserved for
appellate review?
Appellant’s Brief at 3 (reordered).4
In his Brief, Appellant states that he told his attorney after sentencing
that he wanted to file a direct appeal. Appellant’s Brief at 12.
“There is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that no
genuine issues of material fact exist, then a hearing is not necessary.”
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4In his Brief, Appellant also presents new issues for the first time, including
a compulsory joinder claim invoking 18 Pa.C.S. § 110. These claims are
waived. See Pa.R.A.P. 302 (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”).
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Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (citation
omitted). “With respect to the PCRA court’s decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing, such a decision
is within the discretion of the PCRA court and will not be overturned absent
an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617
(Pa. 2015).
The law presumes that counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he
burden of demonstrating ineffectiveness rests on Appellant.” Id. To satisfy
this burden, Appellant must plead and prove by a preponderance of the
evidence that: “(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and, (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the challenged proceeding would have been different.” Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the
test will result in rejection of the appellant’s ineffective assistance of counsel
claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
Our Supreme Court has held that where “there is an unjustified
failure to file a requested direct appeal, the conduct of counsel falls beneath
the range of competence demanded of attorneys in criminal cases.”
Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (emphasis
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added). This denies the accused the assistance of counsel guaranteed by
the Sixth Amendment to the United States Constitution and Article I, Section
9 of the Pennsylvania Constitution as well as the right to direct appeal under
Article V, Section 9. Id. The Supreme Court concluded that this constitutes
prejudice and per se ineffectiveness for PCRA purposes. Id.
Before a court will find ineffectiveness of trial counsel for failing to file
a direct appeal, however, Appellant must prove that he requested an appeal
and that counsel disregarded this request. Commonwealth v. Touw, 781
A.2d 1250, 1254 (Pa. Super. 2001). In such a circumstance, a defendant is
automatically entitled to reinstatement of his appellate rights. Lantzy,
supra at 572. Counsel has a constitutional duty to consult with a defendant
about an appeal where counsel has reason to believe either (1) that a
rational defendant would want to appeal, for example, because there are
meritorious grounds for appeal, or (2) that this particular defendant
reasonably demonstrated to counsel that he was interested in appealing.
Touw, supra at 1254 (citing Roe v. Flores-Ortega, 528 U.S. 470, 480
(2000)).
Here, Appellant claims that he specifically requested that his plea
counsel file a direct appeal. See Appellant’s Brief at 12-14 (citing his own
pro se PCRA Petition and stating, inter alia, “Appellant wanted to appeal his
sentence, and informed his public defender after he was sentenced that he
wanted to do so.”). Appellant also avers that, despite this issue being the
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sole issue he presented in his pro se PCRA Petition, “PCRA counsel never
addressed it or mentioned it, in its no-merit letter as it is required to do
pursuant to the dictates of this Court for filing a no-merit letter.” Id. at 14.5
However, Appellant was not given the opportunity of an evidentiary
hearing with appointed PCRA counsel to prove that he asked plea counsel to
file an appeal. The PCRA court did not substantively analyze this issue in
any of its Opinions so we do not have the benefit of any findings of fact or
credibility findings regarding Appellant’s ineffectiveness claim.
Therefore, we find that the PCRA court erred in dismissing Appellant’s
PCRA Petition without holding an evidentiary hearing to determine whether
Appellant asked plea counsel to file a direct appeal or whether Appellant
reasonably demonstrated to counsel that he was interested in appealing,
triggering counsel’s duty to consult with Appellant. Accordingly, we are
constrained to vacate in part the PCRA court’s February 8, 2017 Order
denying Appellant’s PCRA Petition without a hearing and remand for further
proceedings on this issue. See Lantzy, supra at 572.
With respect to the three issues PCRA counsel raised in the No Merit
Letter, which Appellant did not raise or develop in his appellate Brief, we
agree with the PCRA court’s conclusions described supra and affirm with
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5 Our review of the certified record shows that PCRA counsel mentioned this
issue and asserted that Appellant was referring to a different case in another
county. See Turner/Finley No Merit Letter and Motion to Withdraw,
12/29/16, at 4.
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respect to those issues. See PCRA Court Opinion, 1/17/17, at 3-5. Thus,
the sole issue to be resolved at the evidentiary hearing is Appellant’s claim
regarding his alleged request to file a direct appeal.
As the PCRA court permitted PCRA counsel to withdraw, the PCRA
court is directed to appoint new PCRA counsel and conduct an evidentiary
hearing in accord with this memorandum.
Order affirmed in part and vacated in part. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/2018
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