J-S82005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES DAMAR PRATT,
Appellant No. 1648 WDA 2016
Appeal from the Order Entered September 28, 2016
In the Court of Common Pleas of Beaver County
Criminal Division at No(s):
CP-04-CR-0000853-2014
CP-04-CR-0000854-2014
BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 05, 2018
Appellant, Charles Damar Pratt, appeals from the post-conviction
court’s September 28, 2016 order denying his first petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
The PCRA court summarized the pertinent facts and procedural history
of this case, as follows:
On July 7, 2015 [Appellant] entered guilty pleas to certain
… charges [in three separate] cases. It should be noted that the
pleas were entered by [Appellant] the day after he and his
counsel had participated in selection of a jury to hear and decide
these cases.
____________________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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In the case [docketed] at No. 854 of 2014, [Appellant]
pled guilty to Aggravated Assault, as set forth at Count 2 of the
Information, graded as a Felony of the First Degree, and Persons
not to Possess a Firearm, as set forth at Count 4 of the
Information, graded as a Felony of the Second Degree. [In the]
[c]ase [docketed at] No. 2129 of 2014, [Appellant] pled guilty to
Delivery of Heroin, as set forth at Count 1 of the Information, an
ungraded Felony, Possession With Intent to Deliver Heroin, as
set forth at Count 3 of the Information, and Persons Not to
Possess a Firearm, as set forth at Count 4 of the Information,
again, graded as a Felony of the Second Degree. Finally, [in
the] [c]ase [docketed at] No. 853 of 2014, [Appellant] pled
guilty to Theft By Unlawful Taking, as set forth at Count 1 of the
Information, graded as a Misdemeanor of the First Degree.
In return for his guilty pleas, and in strict compliance with
the terms of his Plea Agreements, as repeatedly stated on the
record, this [c]ourt sentenced [Appellant] on all three cases to
an aggregated sentence of not less than ten (10) years nor more
than twenty (20) years of incarceration in a State Correctional
Facility, followed by a term of five (5) years of probation under
the supervision of the Pennsylvania Board of Probation and
Parole. (The individual sentences are contained in the records.)
On October 30, 2015, [Appellant] filed a pro se PCRA
Petition in the case [docketed] at No. 854 of 2014. At
[Appellant]'s request, counsel was appointed for him. On April
8, 2016, [Appellant] filed another pro se PCRA Petition [in the]
[c]ase [docketed at] No. 853 of 2014. The same counsel was
again appointed for him. Court-appointed counsel filed an
Amended PCRA Petition on April 8, 2016 [in the] [c]ase
[docketed at] No. 854 of 2014. [Therein, Appellant alleged that
his plea counsel had acted ineffectively by, inter alia, failing to
file a direct appeal on his behalf.] The Commonwealth was
directed to file a response, and a hearing was scheduled.
Following continuances, the PCRA Petitions were called for
hearing on September 21, 2016.
At the PCRA hearing, the first witness called to the stand
by [Appellant] … was Attorney Timothy Carland, who
represented [Appellant] before trial, at jury selection and in the
entry of the pleas and subsequent sentencings. Both defense
counsel and the [c]ourt reviewed appeal rights with [Appellant]
during the plea and sentence hearings. According to Attorney
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Carland, [Appellant] did not request that he file a direct appeal,
after having been explained his rights in that regard, at either
the time of the sentences or at any time subsequent thereto.
Attorney Carland testified that the [c]ourt did sentence
[Appellant] in accordance with the Plea Agreement, and
[Appellant] never requested that a direct appeal be filed on his
behalf. [Attorney] Carland never saw nor heard from [Appellant]
following sentencing, and he did not receive any correspondence
from [Appellant] requesting that an appeal be pursued.
[Attorney] Carland testified that his first memory of contact from
[Appellant] was when he received [Appellant’s] Pro Se PCRA
Petition [in the] [c]ase [docketed at] No. 854 of 2014.
[Appellant] was the only other witness to testify at the
PCRA hearing, and his testimony primarily concerned his
dissatisfaction with [Attorney] Carland prior to trial in not visiting
him at the jail, continuing the trial of his cases on more than one
occasion and [counsel’s] refusal to pursue a Rule 600 Motion on
[Appellant’s] behalf. He did admit that he stated on the record at
the time of his pleas and sentences that he was satisfied with
[Attorney] Carland’s representation. [Appellant] did go on to
testify that, at the sentencing hearing, Attorney Carland told him
“to file a PCRA and I'll work on a direct appeal[.”] [Appellant]
admitted that he did not request the [c]ourt or Attorney Carland
to pursue a direct appeal thereafter.
PCRA Court Opinion (PCO), 9/28/16, at 1-3 (unnumbered).
Following the PCRA hearing, the court issued an order and opinion
denying Appellant’s PCRA petition. Appellant filed a timely notice of appeal,
as well as a timely Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal. On January 13, 2017, the PCRA court issued a Rule 1925(a)
opinion, stating that it was relying on the rationale set forth in its opinion
issued on September 28, 2016. Herein, Appellant presents two issues for
our review:
I. The PCRA [c]ourt erred in refusing to reinstate
[Appellant’s] direct appeal rights, where [Appellant] told
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his trial attorney that he wanted to withdraw his plea and
appeal after resentencing.
II. The PCRA [c]ourt erred in denying [Appellant’s] petition for
relief, where trial counsel was ineffective in failing to
prepare for trial which forced [Appellant] to conclude he
had no alternative than to enter an involuntary guilty plea.
Appellant’s Brief at 5.
First, “[t]his Court’s standard of review from the grant or denial of
post-conviction relief is limited to examining whether the lower court’s
determination is supported by the evidence of record and whether it is free
of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)
(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).
Where, as here, a petitioner claims that he received ineffective assistance of
counsel, our Supreme Court has directed that the following standards apply:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the “[i]neffective assistance of counsel
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42
Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
rebut that presumption, the PCRA petitioner must demonstrate
that counsel's performance was deficient and that such
deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
Pennsylvania, we have refined the Strickland performance and
prejudice test into a three-part inquiry. See [Commonwealth
v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
prove counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali,
608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
prove any of these prongs, his claim fails.” Commonwealth v.
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Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
omitted). Generally, counsel's assistance is deemed
constitutionally effective if he chose a particular course of
conduct that had some reasonable basis designed to effectuate
his client's interests. See Ali, supra. Where matters of strategy
and tactics are concerned, “[a] finding that a chosen strategy
lacked a reasonable basis is not warranted unless it can be
concluded that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.”
Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
quotation marks omitted). To demonstrate prejudice, the
petitioner must show that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceedings would have been different.” Commonwealth v.
King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
quotation marks, and citation omitted). “‘[A] reasonable
probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
U.S. at 694, 104 S.Ct. 2052)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
In Appellant’s first issue, he maintains that he directed Attorney
Carland to file a direct appeal on his behalf, and counsel was ineffective for
failing to do so. Appellant claims that his testimony “that he wanted a direct
appeal is buttressed by the fact that his pro se PCRA Petition was filed so
soon after the imposition of [his] sentence.” Appellant’s Brief at 14.
According to Appellant, the timing of his petition demonstrates that he
“immediately took steps to have his appellate rights reinstated” as soon as
“he realized [that] plea counsel did not file a notice of appeal within the
thirty (30) day time-period.” Id. at 14-15.
In rejecting Appellant’s arguments, the PCRA court reasoned:
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[T]his [c]ourt has received credible testimony from Attorney
Carland that he did consult with [Appellant] both on and off the
record concerning his appellate rights and that [Appellant] never
requested, in person, in writing or by any other form of
communication, that Attorney Carland file a direct appeal on his
behalf. In point of fact, [Appellant] himself agreed that he did
not ask Attorney Carland to file a Notice of Appeal from his
sentences. [Appellant] instead testified that Attorney Carland
told him “to file a PCRA and [counsel would] work on a direct
appeal[,”] two courses of action that are incongruous with one
another. [Appellant’s] testimony in that regard was not credible
and cannot be considered as truthful on those two proposed
courses of action.
***
[Appellant] next argues that by filing his Pro Se PCRA
Petition almost four (4) months following his sentencing, [he]
has somehow established that [he] did, in fact, direct Attorney
Carland to file a Notice of Appeal. That, quite simply, is not the
case, after counsel also acknowledged that “the record reflects
that [Appellant] was advised of his post-sentence and direct
appeal rights[.”] There is absolutely no evidence in the record
that [Appellant] ever directed Attorney Carland to file a direct
appeal [of] his convictions and sentences [in the] [c]ase
[docketed at] No. 854 of 2014 and [in the] [c]ase [docketed at]
No. 853 of 2014.
PCO at 3-4 (emphasis in original).
We ascertain no error or abuse of discretion in the PCRA court’s
decision. We have declared that, “[a]lthough counsel may be ineffective for
failing to file a direct appeal on his client’s behalf, a PCRA petitioner must
prove that he asked counsel to file an appeal in order to be entitled to
relief.” Commonwealth v. Maynard, 900 A.2d 395, 397-98 (Pa. Super.
2006). More specifically, “[t]he petitioner has the burden of proving that he
requested a direct appeal and that his counsel heard but ignored or rejected
the request.” Id.
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Here, Appellant testified that Attorney Carland told him, while they
were still in the courtroom after sentencing, that counsel would file a direct
appeal and Appellant should “file a PCRA.” N.T. PCRA Hearing, 9/21/16, at
31-34.1 However, Attorney Carland testified that Appellant did not say
anything to him about filing an appeal at the sentencing hearing, nor at any
point thereafter. Id. at 31, 32-33. The PCRA court credited Attorney
Carland’s testimony and, because that decision is supported by the record, it
is binding on this Court. See Maynard, supra. Accordingly, we discern no
abuse of discretion in the PCRA court’s conclusion that Appellant failed to
prove that Attorney Carland acted ineffectively by not filing a direct appeal
on his behalf.
In Appellant’s second ineffectiveness claim, he contends that Attorney
Carland acted ineffectively by not filing a motion to dismiss pursuant to
Pa.R.Crim.P. 600, seeking several continuances of Appellant’s case, and “not
meet[ing] with [Appellant] enough times to prepare a meaningful defense
for trial.” Appellant’s Brief at 17. Aside from reiterating the general legal
standard for demonstrating ineffectiveness, the entirety of Appellant’s
discussion of these three distinct claims of counsel’s ineffectiveness consists
of the following:
____________________________________________
1 We note that the transcript of the PCRA hearing incorrectly states that the
proceeding was conducted on September 21, 2013, rather than September
21, 2016.
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The PCRA [c]ourt accurately stated that [Appellant] was
dissatisfied that [Attorney] Carland continued the case several
times, that [Attorney] Carland would not pursue the Rule 600
Motion [Appellant] wished to have presented to the court, and
that [Attorney] Carland did not meet with [Appellant] enough
times to prepare a meaningful defense for trial. In fact,
[Appellant] had two other attorneys with the Public Defender’s
Officer prior to Attorney Carland[’s] coming into the case.
[Appellant] did not have a level of confidence that his attorney
was providing reasonable representation in a matter of grave
importance to him.
Attorney Carland was aware that [Appellant] was not
satisfied with the representation, given that [Attorney] Carland
did not pursue the Rule 600 claim, and given that entering the
plea was the result of [Appellant’s] feeling as though he had no
other option. Entering the plea was [Appellant’s] way of
mitigating the bad situation that faced him due to having an
attorney that he believed was not prepared.
Where [Appellant] has established that he would have
proceeded to trial had he enjoyed a level of confidence in his
attorney, the outcome of the case would have been much
different, but for counsel’s ineffective assistance.
Id. at 17-18.
Appellant’s vague argument is insufficient to prove that Attorney
Carland acted ineffectively. First, regarding Appellant’s Rule 600 claim,
Attorney Carland testified at the PCRA hearing that he did not file a Rule 600
motion to dismiss because he believed it would be “frivolous.” N.T. PCRA
Hearing at 28. Appellant offers no discussion to rebut counsel’s conclusion;
thus, he has not demonstrated that this ineffectiveness claim has arguable
merit.
Second, pertaining to the continuance requests filed by Attorney
Carland, the record shows that counsel was appointed to represent Appellant
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on December 23, 2014, and he requested only two continuances between
that date and Appellant’s guilty plea proceeding on July 7, 2015. Attorney
Carland explained at the PCRA hearing that he requested these continuances
to prepare for trial by obtaining and reviewing transcripts, discovery, and
forensic reports. N.T. PCRA Hearing at 27-28. Appellant does not discuss
why it was unreasonable for counsel to request these continuances in order
to better prepare his defense.
Third, concerning Attorney Carland’s pretrial meetings with Appellant,
counsel acknowledged at the PCRA hearing that he only met with Appellant
“once or twice.” Id. at 19. However, he also testified that he was prepared
to go to trial. Id. at 22. Counsel then discussed why Appellant chose to
plead guilty, explaining that, after completing the first day of jury selection,
he had advised Appellant that he believed Appellant’s case was not “that
strong in terms of what he was facing and the potential for additional …
prison time over and above … the [plea] offer [the Commonwealth] was
providing him.” Id. at 21. Appellant informed counsel he would think about
the plea offer “overnight.” Id. at 22. When they arrived at court the
following morning, Appellant saw one of the victims with the District
Attorney, and he then informed Attorney Carland that he wanted to accept
the plea offer. Id.
On appeal, Appellant offers no challenge to Attorney Carland’s
testimony, nor any discussion of what more counsel should have done to
better prepare for trial, or why counsel’s advice to accept the plea offer was
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unreasonable. Thus, Appellant has not demonstrated that Attorney Carland
acted ineffectively.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/2018
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