J-S71045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HENRY L. BAYNARD, :
:
Appellant : No. 3166 EDA 2017
Appeal from the PCRA Order September 19, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002607-2013,
CP-51-CR-0002609-2013, CP-51-CR-0002612-2013,
CP-51-CR-0002615-2013, CP-51-CR-0002811-2013,
CP-51-CR-0002813-2013, CP-51-CR-0002817-2013,
CP-51-CR-0002818-2013, CP-51-CR-0002821-2013,
CP-51-CR-0002822-2013, CP-51-CR-0002846-2013,
CP-51-CR-0002848-2013, CP-51-CR-0002849-2013,
CP-51-CR-0002851-2013, CP-51-CR-0002854-2013,
CP-51-CR-0002856-2013, CP-51-CR-0002860-2013,
CP-51-CR-0002865-2013, CP-51-CR-0002867-2013,
CP-51-CR-0002869-2013, CP-51-CR-0002872-2013,
CP-51-CR-0002875-2013, CP-51-CR-0002886-2013,
CP-51-CR-0002889-2013
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED APRIL 16, 2019
Appellant Henry L. Baynard appeals from the order denying his first
timely petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. Appellant argues that the PCRA court erred in denying relief
on his ineffective assistance of counsel claim. We affirm.
The PCRA court summarized the relevant procedural history of this case
as follows:
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On October 27, 2013, Appellant entered open guilty pleas to
twenty-four counts of robbery that were graded as felonies in the
first degree (18 Pa.C.S. § 3701), twenty-four counts of conspiracy
that were graded as felonies in the first degree (18 Pa.C.S. § 903),
twenty-four counts of carrying a firearm without a license that
were graded as felonies in the third degree (18 Pa.C.S. § 6106),
twenty-four counts of carrying a firearm on the public streets of
Philadelphia that were graded as misdemeanors in the third
degree (18 Pa.C.S. § 6108), twenty-four counts of possessing an
instrument of crime that were graded as misdemeanors in the first
degree (18 Pa.C.S. § 907), and eight counts of aggravated assault
that were graded as felonies in the first degree (18 Pa.C.S. §
2702). Appellant’s charges stemmed from a veritable crime spree
lasting between August 21 and October 1, 2012.
***
After Appellant entered his pleas, [the trial court] sentenced him
[on October 27, 2014,] to an aggregate term of sixteen (16) to
thirty-two (32) years’ incarceration. Immediately after
sentencing, Mr. [Perry] de Marco [(trial counsel)] asked Appellant
on the record whether he intended to file post-sentence motions
and/or a direct appeal. . .
[Trial counsel]: [Appellant], judgment of sentence has been
entered by the [c]ourt. The aggregate term is 16 to 32
years, credit for time served. Do you understand?
[Appellant]: Yes.
[Trial counsel]: As we discussed previously, you have ten
days from today’s date in writing to ask [the trial court] to
reconsider the imposed sentence. Motion must be done in
writing. If you can’t afford counsel, counsel will be provided
to you. Do you understand? There is nothing for [the trial
court] to reconsider, however. You could ask [the trial
court] to lower the sentence but in light of prior discussions,
I don’t think that’s very likely. You can direct an appeal to
the Superior Court. Those are limited grounds we also
discussed in the booth downstairs, and [the trial court] gave
in the colloquy. Do you understand?
[Appellant]: Yes.
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[Trial counsel]: As you stand before [the trial court], do you
have any intention to file those post sentence motions or an
appeal?
[Appellant]: No.
Consistent with his on-the-record statements, Appellant filed
neither a post-sentence motion nor a direct appeal. However, on
October 21, 2015, Appellant filed a timely pro se petition under
the PCRA. Appellant subsequently was appointed counsel, who
filed an amended petition on July 8, 2016, alleging that Appellant’s
[trial] counsel failed to file a requested direct appeal and a
requested post-sentence motion. Appellant alleged:
[Appellant’s] trial counsel was ineffective because he failed
to file a post sentence motion, and appeal from the
judgment of sentence in the above matter when requested
to do so by the defendant after being sentenced. As a result
of this[, Appellant] lost his state constitutional right to
appeal the judgment of sentence in the above matter.
[Appellant] has not waived this issue because it is the first
opportunity he has to raise it and his post-sentence rights
from the judgment of this court should be reinstated nunc
pro tunc.
On September 1, 2016, the Commonwealth filed a motion to
dismiss Appellant’s petition. On September 19, 2017, after
several continuances, [the PCRA court] conducted an evidentiary
hearing on Appellant’s claims. Appellant testified at the hearing
that he did not request his plea counsel to file a direct appeal, but
requested counsel to file only a motion to reconsider his
sentence[.]
***
Appellant further testified that he requested [trial counsel] to file
a post-sentence motion while they were still in the courtroom
sitting at the defense table.
[Trial counsel] as well testified at the evidentiary hearing.
Consistent with the notes of testimony from the plea hearing, [trial
counsel] testified that Appellant never asked him to file a direct
appeal or a post-sentence motion[.]
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***
At the conclusion of the hearing, [the PCRA court] determined that
[trial counsel] credibly testified that Appellant never requested
him to file a post-sentence motion or a direct appeal, and
therefore dismissed Appellant’s PCRA petition.
PCRA Ct. Op., 5/8/18, at 3-4.
Appellant timely filed a notice of appeal1 and a court-ordered Pa.R.A.P.
1925(b) statement.2 The PCRA court filed a responsive Rule 1925(a) opinion
concluding that Appellant was not entitled to relief.
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1 Appellant filed one notice of appeal that listed all twenty-four docket
numbers. On October 5, 2017, this Court issued a rule to show cause as to
why the appeal should not be quashed. See Commonwealth v. C.M.K., 932
A.2d 111 (Pa. Super. 2007) (holding that quashal is appropriate where a single
notice of appeal is taken from two judgments of sentence imposed on co-
defendants who were convicted and sentenced individually on different
charges); see also Pa.R.A.P. 341, Note (stating that where one order resolves
issues arising on more than one docket, separate notices of appeal must be
filed.) Appellant filed a timely response indicating that he was not appealing
jointly with his co-defendant, and that he filed one notice of appeal because
his sole appellate issue was identical across all twenty-four docket numbers.
Thereafter, the matter was referred to this panel for consideration. On June
1, 2018, the Pennsylvania Supreme Court, in Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018), held that “separate notices of appeal must be filed
when a single order resolves issues arising on more than one lower court
docket,” and “the failure to do so will result in quashal of the appeal.” See
id. at 977 (footnote omitted). However, the Court announced its holding was
prospective only, and therefore, we need not quash the present appeal, as it
was pending at the time Walker was filed. See id. at 971.
2 Appellant’s Rule 1925(b) statement included the following issues: (1) trial
counsel was ineffective for failing to file a motion to withdraw Appellant’s guilty
pleas when requested by Appellant; (2) trial counsel was ineffective for failing
to file a motion for reconsideration when requested to do so by Appellant; (3)
Appellant’s guilty pleas were not knowing, intelligent, and voluntary; (4) the
trial court erred in denying Appellant’s request to file a motion to withdraw his
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Appellant raises one question on appeal: “Did the [PCRA] court err in
not reinstating Appellant’s post-sentence rights due to ineffectiveness of trial
defense counsel who failed to discuss Appellant’s post-sentence rights with
the Appellant after his sentence?” Appellant’s Brief at 2.
At the outset, we note that Appellant, in his PCRA petition, claimed that
trial counsel was ineffective for disregarding his request to have post-
sentence motions and a direct appeal filed. On appeal, however, Appellant
does not argue that trial counsel disregarded his request.3 Instead, Appellant
claims that trial counsel was ineffective for failing to consult with him as to
whether he wished to file a post-sentence motion or direct appeal.4
Appellant’s Brief at 6.
Specifically, in his brief to this Court, Appellant now contends that prior
to entering an open guilty plea, he informed trial counsel that he was looking
____________________________________________
guilty pleas nunc pro tunc; and (5) the trial court erred in denying Appellant’s
request to file a motion for reconsideration nunc pro tunc. See Appellant’s
Rule 1925(b) Statement, 12/28/17, at 1-2.
3 Had Appellant raised this claim on appeal, we would find it meritless. At the
PCRA hearing, both Appellant and trial counsel testified regarding Appellant’s
alleged request for a direct appeal. However, the PCRA court found trial
counsel’s testimony credible, and concluded that Appellant did not request
that counsel file a post-sentence motion or a direct appeal. Therefore,
Appellant would be unentitled to relief on his claim.
Therefore, we are bound by the PCRA court’s credibility determinations, which
are supported by the record. See Commonwealth v. Mitchell, 105 A.3d
1257, 1265 (Pa. 2014) (citation omitted).
4 We add that the Commonwealth argued that Appellant waived this issue by
failing to raise it in his PCRA petition. Commonwealth’s Brief at 8.
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for a sentence of ten to twenty years’ incarceration. Id. Appellant argues
that when the trial court imposed a greater sentence of sixteen to thirty-two
years’ incarceration, counsel was already “on notice” that Appellant was
dissatisfied with the court’s sentence. Id. According to Appellant, counsel,
therefore, should have advised him about the pros and cons of proceeding
with post-sentence motions or a direct appeal to challenge the discretionary
aspects of the sentence. Id. at 6-7.
However, a claim that counsel was ineffective for failing to file an appeal
when requested by the defendant is distinct from a claim that counsel was
ineffective for failing to consult with a defendant. Compare Commonwealth
v. Lantzy, 736 A.2d 564, 571 (Pa. 1999) (discussing claims that counsel
abandoned a defendant by failing to file a requested direct appeal);
Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa. Super. 2011) (same);
Commonwealth v. Maynard, 900 A.2d 395, 398 (Pa. Super. 2006) (same)
with Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000) (discussing claims
that counsel failed to consult with a defendant); Markowitz, 32 A.3d at 714
(same); Commonwealth v. Touw, 781 A.2d 1250, 1254 (Pa. Super. 2001)
(same). Therefore, because Appellant failed to raise his claim that trial
counsel was ineffective for failing to consult in his PCRA petition, that claim is
waived on appeal. See Pa.R.A.P. 302(a); Pa.R.Crim.P. 902(B) (stating that
the “[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”).
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Even if Appellant properly preserved his claim, he would not be entitled
to relief. Our standard of review from the denial of a PCRA petition “is limited
to examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “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.” Mitchell, 105 A.3d at 1265 (citation omitted).
“A criminal defendant has the right to effective counsel during a plea
process as well as during trial.” Commonwealth v. Rathfon, 899 A.2d 365,
369 (Pa. Super. 2006) (citations omitted). To establish a claim of ineffective
assistance of counsel, a defendant “must show, by a preponderance of the
evidence, ineffective 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.” Commonwealth
v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). Counsel
is presumed to be effective, and the burden is on the defendant to prove all
three of the following prongs: “(1) the underlying claim is of arguable merit;
(2) that counsel had no reasonable strategic basis for his or her action or
inaction; and (3) but for the errors and omissions of counsel, there is a
reasonable probability that the outcome of the proceedings would have been
different.” Id. (citation omitted); see Commonwealth v. Daniels, 963 A.2d
409, 419 (Pa. 2009).
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When a defendant does not explicitly instruct counsel to file a direct
appeal, counsel may still be found ineffective if counsel does not consult with
the defendant about his appellate rights. Flores-Ortega, 528 U.S. at 480
(2000); Markowitz, 32 A.3d at 714. However, counsel has a constitutionally
imposed duty to consult only when “there is reason to think either (1) that a
rational defendant would want to appeal, or (2) that this particular defendant
reasonably demonstrated to counsel that he was interested in appealing. In
making this determination, courts must take into account all the information
counsel knew or should have known.” Flores-Ortega, 528 U.S. at 480
(citation omitted).
“Where a petitioner can prove either factor, he establishes that his claim
has arguable merit.” Markowitz, 32 A.3d at 716. However, “[a] deficient
failure on the part of counsel to consult with the defendant does not
automatically entitle the defendant to reinstatement of his or her appellate
rights; the defendant must show prejudice.” Touw, 781 A.2d at 1254
(holding that a claim that counsel failed to consult with a defendant about an
appeal “does not fit within the [per se ineffectiveness] rule articulated” in
Lantzy). “[T]o show prejudice in these circumstances, 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. (quoting Flores-Ortega, 528 U.S. at 484).
Here, Appellant did not establish, as he must, that “had [he] received
reasonable advice from counsel about the appeal, he would have instructed
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his counsel to file an appeal.” See Flores-Ortega, 528 U.S. at 487; see also
Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995) (stating that
where an appellant fails to meet the prejudice prong of the ineffectiveness
standard, we may dismiss the claim on that basis alone). Moreover, to the
extent that Appellant may have intended to raise this issue at the PCRA level,
he did not develop the claim when provided with an opportunity to do so at
the evidentiary hearing. Indeed, Appellant’s trial counsel’s testimony was
limited to resolving whether Appellant specifically requested that he file a
direct appeal.5 See N.T. PCRA Hr’g, 9/19/17, at 13. Therefore, Appellant
cannot establish trial counsel’s ineffectiveness based on counsel’s alleged
failure to consult with Appellant regarding a post-sentence motion or a direct
appeal.6 See Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016)
(stating that counsel is presumed effective, and a petitioner “must advance
sufficient evidence to overcome [that] presumption” in order to succeed on an
ineffectiveness claim).
Order affirmed.
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5The PCRA court determined that trial counsel testified credibly that Appellant
did not request either a post-sentence motion or a direct appeal.
6 As indicated previously, Appellant’s argument at the PCRA hearing was that
he requested a direct appeal and counsel failed to file it. Accordingly,
Appellant only sought to elicit testimony from counsel regarding that specific
claim. Appellant did not question counsel regarding his alleged failure to
consult with him about filing a direct appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/19
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Com. v. Baynard, H.
Combined Opinion