J-S35041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH E. BALL, JR. :
:
Appellant : No. 76 WDA 2017
Appeal from the PCRA Order December 19, 2016
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000196-2015
BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 20, 2017
Kenneth E. Ball, Jr. (“Appellant”) appeals from the order entered in the
Court of Common Pleas of Jefferson County dismissing his first petition for
collateral relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §
9541-9546. Appellant contends the PCRA court erroneously rejected his
claim that trial counsel ineffectively failed to file post-sentence motions or a
direct appeal after the trial court imposed standard range sentences and ran
them consecutively. We affirm.
The PCRA court aptly summarizes the pertinent history of the case as
follows:
[On March 13, 2015, Appellant approached a vehicle occupied by
two males who were offering to sell drugs to Appellant’s
girlfriend, who had just gained her release from prison after
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*
Former Justice specially assigned to the Superior Court.
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serving a drug possession sentence. Appellant punched through
the driver side window, punched the driver, and then brandished
a knife and threatened to kill one of the occupants.]
Declining the Commonwealth’s plea offer [of six to 24 months
less one day incarceration with a three-year probationary tail], .
. .Ball [hereinafter “Appellant”] elected to go to trial, where a
jury found him guilty of Terroristic Threats and two counts of
Simple Assault. The [trial court] imposed standard range
sentences on all three[fn] and ran them consecutive to one
another [resulting in an aggregate sentence of no less than three
years, two months and twenty-nine days nor more than nine
years’ incarceration]. Appellant did not object at the time of
sentencing or file post-sentence motions or an appeal thereafter.
fn
On the charge of Terroristic Threats, the court imposed a
fourteen month, twenty-nine day sentence of incarceration,
which sat at the top of the standard range with application of the
deadly weapon enhancement. For each charge of Simple
Assault, the court imposed a one to two year sentence, which sat
at the middle of the standard range.
During his pre-trial discussions with Appellant, [John M.] Ingros,
[Esq., the acting Public Defender of Jefferson County at the
time] [hereinafter “counsel”] advised him that he would likely
receive top-of-the guidelines or maximum consecutive sentences
if he lost at trial. Appellant accepted that risk and stood calmly
as he listened to the verdict. He then thanked his attorney and
left the courtroom. They did not discuss the upcoming
sentencing hearing or what might occur thereafter, and in light
of Appellant’s pleasant demeanor throughout their attorney-
client relationship, counsel assumed Appellant was “taking his
lumps.”
On the date of sentencing, the [trial court] orally delivered
Appellant’s post-sentence and appellate rights, which Appellant
purported to understand. (Sentencing Transcript, 11/4/15 at 9.
[Appellant] thus acknowledged that he had ten days to file
written post-sentence motions on thirty days to file a direct
appeal. (See id.) Because it was the [trial court’s] pre-
scheduled “plea and sentence court,” however, Appellant and
counsel did not have a chance to discuss the matter that day.
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While awaiting transport from the Jefferson County Jail,
Appellant did not hear from counsel. Counsel did not visit or
write to review his options with him, and neither did Appellant
contact counsel for that purpose. Appellant knew he could
appeal, though. He knew even before his sentencing hearing, in
fact, that a person could “always appeal,” and the trial court
supplemented that knowledge with the specific number of days
he had to file post-sentence motions or a direct appeal and the
acceptable medium.
Appellant did eventually write to counsel, but only to inquire
about the terms of the offer he rejected and seek clarification on
the terms of his sentence. He said nothing about wanting to
appeal.
[At the PCRA evidentiary hearing, counsel testified that he
understood that the court’s standard range sentences were
presumptively valid.] He also testified that he [understood] that
the question of concurrent versus consecutive was discretionary
to the court and that the court had articulated sustainable
reasons for its decision to run Appellant’s sentences
consecutively in this case. (See N.T. 8/18/15 at 26-27).
Although the sentence was significantly greater than what the
Commonwealth had proposed in its offer, therefore, counsel did
not believe the court had abused its discretion. Given that
assessment, and also in light of his prior dealings with Appellant,
therefore, counsel did not deem it necessary to reach out to his
client to discuss appellate options.
PCRA Court Opinion, 12/19/16, at 1-2.
Appellant timely appealed from the PCRA court’s order denying relief.
He presents four issues that coalesce to charge error with the PCRA court’s
order rejecting his claim that trial counsel rendered ineffective assistance by
neither filing post-sentence motions and a direct appeal challenging the
discretionary aspects of his sentence nor consulting him about the prospects
of such filings.
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Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court's
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011). This Court
grants great deference to the findings of the PCRA court if the record
contains any support for those findings; however, we give no deference to
the court's legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194
(Pa.Super. 2012). Where the record supports the PCRA court's credibility
resolutions, they are binding on this Court. Commonwealth v. Abu–
Jamal, 553 Pa. 485, 527, 720 A.2d 79, 99 (1998).
To be entitled to PCRA relief, the defendant bears the burden of
establishing, by a preponderance of the evidence, that his conviction or
sentence resulted from one or more of the circumstances enumerated in 42
Pa.C.S.A. § 9543(a)(2), which include ineffectiveness of counsel that “so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i) and
(ii); see also Mason, 130 A.3d at 618 (citations omitted).
Here, appellant contends trial counsel ineffectively failed to advise him
about his appeal options after the court imposed a sentence much higher
than what either the Commonwealth or the Probation Office recommended.
Counsel is presumed effective, and in order to overcome that
presumption a PCRA petitioner must plead and prove that: (1)
the legal claim underlying the ineffectiveness claim has arguable
merit; (2) counsel's action or inaction lacked any reasonable
basis designed to effectuate petitioner's interest; and (3)
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counsel's action or inaction resulted in prejudice to petitioner.
With regard to reasonable basis, the PCRA court does not
question whether there were other more logical courses of action
which counsel could have pursued; rather, [the court] must
examine whether counsel's decisions had any reasonable basis.
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. To demonstrate prejudice, a
petitioner must show that there is a reasonable probability that,
but for counsel's actions or inactions, the result of the
proceeding would have been different. Failure to establish any
prong of the [ ] test will defeat an ineffectiveness claim.
Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (internal
quotation marks and citations omitted).
The failure to file a requested direct appeal is per se ineffective
assistance of counsel, regardless of the merits of the claims that the
defendant sought to raise on appeal. Commonwealth v. Lantzy, 736 A.2d
564, 572 (Pa. 1999). A more difficult situation arises, however, when a
defendant does not clearly express to counsel his desire to file a direct
appeal. This Court addressed such a claim in Commonwealth v. Touw,
781 A.2d 1250, 1254 (Pa.Super. 2001), where, relying upon the United
States Supreme Court's decision in Roe v. Flores–Ortega, 528 U.S. 470
(2000), we held:
[C]ounsel has a constitutionally-imposed duty to
consult with the defendant about an appeal when
there is reason to think either (1) that a rational
defendant would want to appeal (for example,
because there are nonfrivolous grounds for appeal),
or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in
appealing. In making this determination, courts
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must take into account all the information counsel
knew or should have known.
Flores-Ortega, at 480, 120 S.Ct. 1029. 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. The
[Flores–Ortega] Court held that “to 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. at 484, 120 S.Ct. 1029.
Touw, 781 A.2d at 1254.1
Here, Appellant argues that counsel should have realized it would be
rational for a defendant in his position to challenge a sentence greatly
exceeding both the Commonwealth’s plea offer and the Office of Probation’s
recommendation of six to twenty four months less one day incarceration,
with three years’ probation. Although the court’s aggregate sentence
comprised three standard range sentences, Appellant continues, his
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1
Further, there is “no significant distinction between the restoration of lost
appellate rights and the restoration of lost post-sentence rights. That is, if a
defendant has been deprived of his post-sentence rights through an
omission of counsel or the court, the defendant should be able to redress
that deprivation under the PCRA.” Commonwealth v. Grafton, 928 A.2d
1112, 1115 (Pa.Super. 2007). Nevertheless, the right to file post-sentence
motions nunc pro tunc is not automatic even if the court grants the
petitioner the right to file a direct appeal nunc pro tunc. Commonwealth v.
Liston, 977 A.2d 1089, 1094 (Pa. 2009). A PCRA court can reinstate a
defendant's right to file post-sentence motions nunc pro tunc if the
defendant successfully pleads and proves that he was deprived of the right
to file and litigate post-sentence motions as a result of counsel's
ineffectiveness. Id. at n. 9.
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sentence for Terroristic Threats was one day short of the upper limit for a
standard range sentence. Had counsel consulted with him after sentencing,
he would have asked him to file a post-sentence motion seeking
reconsideration of his sentence, Appellant claims, which would have also
preserved the discretionary aspects of sentencing claim for a direct appeal.
As it was, however, Appellant contends he did not understand how to go
about filing post-sentence motions and a direct appeal.
The PCRA court responds that it clearly advised Appellant of his post-
sentence motion and direct appeal rights, an assertion that the record
supports. Moreover, the court directs us to the notes of testimony from
Appellant’s PCRA evidentiary hearing, in which counsel testified that he
advised Appellant that rejecting the Commonwealth’s plea offer only to incur
a guilty verdict at trial would likely expose him to sentences at the top of the
guideline ranges, up to statutory maximums, run consecutively. N.T.,
8/18/15, at 23. Counsel interpreted Appellant’s relatively calm reaction to
his sentence and subsequent failure to request a direct appeal as a product
of the warning counsel had previously given.
Counsel, likewise, testified that his nearly twenty years’ experience as
a public defender was that the imposition of standard range sentences,
consecutively run, are presumptively appropriate and generally fail to raise a
substantial question with regard to the court’s sentencing discretion. This
was particularly true, he posited, where, as here, the sentencing court
supported its sentence by recounting both the particularly violent nature of
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the crime at hand and Appellant’s prior history of acting violently. Our
jurisprudence supports counsel’s testimony.2
Under the circumstances, we cannot conclude that counsel should
have expected a rational defendant in Appellant’s position to seek
modification of his sentence through post sentence motions and, if need be,
a direct appeal. Counsel advised Appellant that he risked such a sentence if
he were to reject the Commonwealth’s plea and unsuccessfully defend
against the charges. The court stated pertinent reasons on the record to
support running the standard range sentences consecutively. Appellant
failed to ask counsel to file a motion challenging his sentence even after
acknowledging in court that he understood it was his right to file a post-
sentence motion, and counsel was familiar with jurisprudence highly
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2
“Generally speaking, the court's exercise of discretion in imposing
consecutive as opposed to concurrent sentences is not viewed as raising a
substantial question that would allow the granting of allowance of appeal.”
Commonwealth v. Gonzalez–Dejusus, 994 A.2d 595, 598 (Pa.Super.
2010). “[T]he imposition of consecutive, rather than concurrent, sentences
may raise a substantial question in only the most extreme circumstances,
such as where the aggregate sentence is unduly harsh, considering the
nature of the crimes and the length of imprisonment.” Commonwealth v.
Lamonda, 52 A.3d 365, 372 (Pa.Super. 2012).
Given the nature of Appellant’s crimes and the standard range sentences
imposed, counsel reasonably distinguished Appellant’s sentence from those
extreme, exceptional situations contemplated in Lamonda.
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deferential to sentencing discretion where standard range sentences
consecutively run do not result in an unduly harsh sentence under the facts.
While Appellant’s sentence diverged significantly from the Office of
Probation’s recommendation, the recommendation was only advisory and
but one consideration the sentencing court was to make. Notably, Appellant
directs us to no caselaw vacating sentence because a court’s sentence
departed upward from a recommended sentence. Moreover, he supplies no
further basis for the proposition that a rational defendant would have sought
reconsideration of this sentence.
For these reasons, we find Appellant has not demonstrated that plea
counsel had a duty to consult with him further regarding his post sentence
rights.
Order is Affirmed.
Judge Lazarus joins the memorandum.
Judge Ransom notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2017
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Com. v. Ball, K.
Combined Opinion