J-S20010-17
2017 PA Super 243
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANDRE C. GREEN
Appellant No. 2240 EDA 2016
Appeal from the PCRA Order June 27, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012604-2011
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
OPINION BY BOWES, J.: FILED JULY 24, 2017
Andre Green appeals from the June 27, 2016 order denying his PCRA
petition seeking reinstatement of his appellate rights nunc pro tunc. We
reverse and remand for reinstatement of Appellant’s direct appellate rights.
The facts and procedural history are as follows. On September 27,
2011, Philadelphia Police Officer Kevin Devlin and his partner observed
Appellant in an area known for drug trafficking. He saw Appellant bend
down between the curb and a parked vehicle. As Officer Devlin and his
partner approached, someone on the street alerted nearby persons to their
presence. Appellant stood up, looked at the officers in their car, grabbed his
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waistband, and walked into a nearby store.1 The officers testified they
believed they had witnessed an aborted drug transaction since cars parked
near a curb are often utilized to stash drugs and a male was standing near
Appellant’s location. Officer Devlin parked his vehicle and followed Appellant
into the store. He ordered Appellant to place his hands in the air. Appellant
complied, and the officer saw a gun in Appellant’s waistband. He was
arrested and charged with carrying a firearm without a license, prohibited
possession of a firearm, and carrying a firearm in public in Philadelphia.
Appellant retained trial counsel, who filed a motion to suppress the
firearm, alleging that the officers lacked reasonable suspicion to seize
Appellant inside the store. Following an evidentiary hearing on October 4,
2012, the trial court denied the motion, and Appellant proceeded to a
stipulated bench trial. The court found him guilty at all counts. On
November 29, 2012, Appellant was sentenced to two to four years
incarceration for carrying a firearm without a license, and a consecutive
aggregate period of eight years of probation at the other counts. Appellant
did not file an appeal.
On November 3, 2013, Appellant filed a pro se PCRA petition. Counsel
was appointed and thereafter filed amended petitions on July 23, 2015 and
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1
The certified record does not include the notes of testimony from the
actual suppression hearing. The current record does not clearly indicate
whether or not the officers were in marked police vehicles.
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May 16, 2016. The PCRA court held an evidentiary hearing and
subsequently denied relief. Appellant timely filed a notice of appeal. 2
Appellant raises one issue for our review.
Did the trial court err in not reinstating Appellant’s right to file an
appeal nunc pro tunc from the judgment of sentence due to
ineffective assistance [of] trial defense [counsel] who failed to
discuss with the Appellant a non-frivolous ground for appeal?
Appellant’s brief at 2.
“[W]e review a denial of PCRA relief to determine whether the findings
of the PCRA court are supported by the record and free of legal error.”
Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa.Super. 2017)
(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). A
PCRA court's credibility findings are to be accorded great deference, and
where supported by the record, such determinations are binding on a
reviewing court. Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa.
1998). A PCRA court’s legal conclusions, however, are reviewed de novo.
Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011).
Appellant relies upon Roe v. Flores-Ortega, 528 U.S. 470 (2000),
which supplies the legal framework for the question presented on appeal.
Therein, the High Court addressed counsel’s duty in the situation herein,
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2
Resolution of this case was delayed by a September 2, 2016, application
for remand to file a Pa.R.A.P. 1925(b) statement. We granted that request
on September 21, 2016.
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when the defendant has not clearly conveyed one way or the other whether
he wishes to appeal. Id. The Court declined to impose either a per se duty
to file a notice of appeal or a per se duty to consult. “We cannot say, as a
constitutional matter, that in every case counsel's failure to consult with
the defendant about an appeal is necessarily unreasonable, and therefore
deficient.” Id. at 479 (emphasis in original as italics). However, the Court
noted its expectation that “courts . . . will find, in the vast majority of cases,
that counsel had a duty to consult with the defendant about an appeal.” Id.
at 481.
Flores-Ortega established that a court must first assess whether
consultation has occurred; if so, deficient performance is established only if
counsel failed to file a requested notice of appeal. The Court stated:
[W]e believe the question whether counsel has performed
deficiently by not filing a notice of appeal is best answered by
first asking a separate, but antecedent, question: whether
counsel in fact consulted with the defendant about an appeal.
We employ the term “consult” to convey a specific meaning-
advising the defendant about the advantages and disadvantages
of taking an appeal, and making a reasonable effort to discover
the defendant's wishes. If counsel has consulted with the
defendant, the question of deficient performance is easily
answered: Counsel performs in a professionally unreasonable
manner only by failing to follow the defendant's express
instructions with respect to an appeal.
Id. at 478 (internal citation omitted). If, however, counsel has not
consulted with the defendant, “the court must in turn ask a second, and
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subsidiary, question: whether counsel's failure to consult with the defendant
itself constitutes deficient performance.” Id.
Presently, the Commonwealth maintains that trial counsel did, in fact,
consult with Appellant, and, since it is undisputed that Appellant did not ask
counsel to file an appeal, we must affirm the order of the court.
Additionally, the Commonwealth highlights that the trial court informed
Appellant of his right to an appeal following sentencing, and trial counsel
testified at the PCRA hearing that he always discussed appellate rights with
his clients. Since the trial court credited that testimony, the Commonwealth
maintains Appellant is not entitled to relief.
Appellant testified at the PCRA hearing that he was unaware of his
appellate rights. N.T. PCRA Hearing, 6/16/16, at 7. At the time of that
hearing, the sentencing transcript was not available; however, the parties
now agree that Appellant was informed on the record that he had a right to
file an appeal within thirty days. The PCRA court’s rejection of Appellant’s
testimony that he was wholly unaware of his appellate rights is unassailable
as a credibility finding that is fully supported by the record. However, we do
not find that Appellant’s unbelievable testimony compels the further
conclusion that his Flores-Ortega claim is defeated. The asserted failure in
this case is the deficient failure to consult regarding an appeal of the
preserved grounds. Indeed, Flores-Ortega itself involved a defendant who
was told of his appellate rights. “After pronouncing sentence, the trial judge
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informed respondent, ‘You may file an appeal within 60 days from today's
date with this Court.’” Id. at 473-74. Accordingly, the mere fact that
Appellant was informed of his appellate rights as a generic proposition does
not prohibit a finding of prejudice in this case. Compare Commonwealth
v. Markowitz, 32 A.3d 706, 716-17 (Pa.Super. 2011) (concluding that
where all issues are wholly frivolous, it is enough that a defendant is aware
that he has a right to an appeal). Therefore, Appellant’s unbelievable
testimony does not settle the matter.
We now examine trial counsel’s testimony. Counsel testified that he
and Appellant discussed the suppression motion and “what his potential
sentencing would be in the event that he pled guilty and mitigated versus
fighting the case on a motion.” Id. at 27-28. With respect to any appeal,
trial counsel testified as follows:
Q. Do you remember speaking with him at all about taking an
appeal?
A. No.
Q. Do you –
A. Well, I will say this: A specific conversation about, “I want to
appeal,” and then getting into, “Okay, we’re going to talk about
this appeal.”
But I will say this: I did have a conversation – I don’t know
how long it would’ve been – that the reason that we’re not
pleading guilty after denying the motion would be we
have to put this up at least by stipulation, preserve your
rights for purposes of any substantive appeal.
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And so I know I had the conversation either before the day or
perhaps briefly during the day. I can’t be sure.
Id. at 28-29 (emphases added).3 Counsel further testified that he discussed
appellate rights with Appellant as he would with all clients. Id. at 29.
The PCRA court concluded that Appellant was aware that the
suppression issue was preserved and was informed of his appellate rights,
and therefore counsel sufficiently consulted with Appellant. Moreover, the
PCRA court concluded that Appellant failed to establish that a rational
defendant would wish to appeal since the suppression motion was meritless.
We disagree.
We agree that we are bound by the credibility determination that a
conversation between counsel and Appellant regarding appellate rights
occurred. However, the question is not simply whether consultation
occurred, it is whether that consultation was adequate within the meaning of
that term as expressed in Flores-Ortega, which is a conclusion of law
subject to review de novo. Hence, the credibility finding does not control the
outcome.
In Commonwealth v. Markowitz, 32 A.3d 706, 716-17 (Pa.Super.
2011), we noted that Flores-Ortega and subsequent case law in this
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3
We presume that the day referenced is October 4, 2012, when the
suppression motion was denied and the parties proceeded to the stipulated
trial.
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Commonwealth did not address “the adequacy of the consultation required.
Nonetheless, it is evident that incorrect advice or failing to properly advise a
client can be grounds for an ineffectiveness claim.” We recognize that
Appellant does not allege that counsel gave erroneous advice. Yet the gap
between an allegation of erroneous advice and the failure to give any
semblance of advice one way or the other is not particularly large, if it exists
at all.
Herein, the consultation relied upon by the PCRA court and the
Commonwealth was not advice regarding the advantages or disadvantages
of an appeal; instead, it was merely advice regarding issue preservation for
a future appeal. Flores-Ortega makes plain that the consultation must, at
minimum, encompass advice regarding an actual appeal, not simply how to
preserve issues for a theoretical appeal.4 This is why the test requires the
attorney to make “a reasonable effort to discover the defendant’s wishes.”
Flores-Ortega, supra at 478. The Court did not suggest that it is enough
to merely inform the defendant that an appeal is possible in the abstract
sense. Plea counsel unequivocally denied discussing an appeal yet
specifically litigated this matter in a way to preserve a particular issue for
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4
Nor do we find that counsel’s testimony that he regularly discusses
appellate issues, which the PCRA court credited, ends the matter. We
cannot accept a conclusory statement that appellate rights were discussed
without knowing the content of that discussion.
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appeal. Therefore, we find that the conversation regarding issue
preservation does not meet Flores-Ortega’s demand.
Having concluded that the consultation was inadequate, we now
address whether counsel actually had a duty to consult. Plainly, any
inadequacy in the consultation is irrelevant if there was no duty to consult.
In Commonwealth v. McDermitt, 66 A.3d 810, 815 (Pa.Super. 2013), we
explained that
Pursuant to Flores–Ortega and [Commonwealth v. Touw,
781 A.2d 1250, 1254 (Pa.Super. 2001)], 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
non-frivolous grounds for appeal), or (2) that this particular
defendant reasonably demonstrated to counsel that he was
interested in appealing.
Id. at 815.
Applying this test, we find that a rational defendant would want to
appeal an issue that counsel, through procedural maneuvering, explicitly
preserved.5 Therefore, counsel had a duty to consult. The mere fact that
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5
Both the PCRA court and the Commonwealth discuss the suppression
motion’s likelihood of success on appeal, suggesting that counsel had no
duty to consult. These discussions ignore the fact that trial counsel
obviously disagreed with this assessment by virtue of the fact he filed the
motion and preserved the issue for appeal. By claiming the issue utterly
lacked merit, the Commonwealth and the PCRA court imply that trial counsel
was ineffective for pursuing suppression in the first place instead of advising
a guilty plea and citing the plea as a mitigating circumstance.
(Footnote Continued Next Page)
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the suppression issue was preserved for review is highly relevant to our
analysis. Flores-Ortega stated that issue preservation is probative of
whether a rational defendant would desire an appeal:
Although not determinative, a highly relevant factor in this
inquiry will be whether the conviction follows a trial or a guilty
plea, both because a guilty plea reduces the scope of potentially
appealable issues and because such a plea may indicate that the
defendant seeks an end to judicial proceedings. Even in cases
when the defendant pleads guilty, the court must consider
such factors as whether the defendant received the
sentence bargained for as part of the plea and whether
the plea expressly reserved or waived some or all appeal
rights. Only by considering all relevant factors in a given case
can a court properly determine whether a rational defendant
would have desired an appeal or that the particular defendant
sufficiently demonstrated to counsel an interest in an appeal.
Id. at 480 (emphasis added). Clearly, the fact that Appellant proceeded to
a stipulated trial, which preserved his suppression issue for appellate review,
is relevant to the rational defendant inquiry.
Next, we find that a rational defendant in Appellant’s position would
desire an appeal because the suppression issue did not turn on a matter of
credibility, which this Court cannot review on appeal, but on a matter of law,
_______________________
(Footnote Continued)
Moreover, the PCRA court concluded that the claim is meritless, but “a claim
that lacks merit is not necessarily wholly frivolous[.]” Commonwealth v.
Markowitz, 32 A.3d 706, 717 (Pa.Super. 2011). The duty to consult arises
if there is a non-frivolous issue to raise, not an ultimately meritorious issue.
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which this Court would review de novo.6 Commonwealth v. Brown, 996
A.2d 473, 476 (Pa. 2010) (appellate court applies de novo review over
suppression court’s legal conclusions).
Finally, vindication on direct appeal would be entirely favorable to
Appellant, as a ruling in his favor would require suppression of the firearms
found on Appellant’s person. Thus, this is not a case where appellate
success would be harmful to the client’s ultimate interests. Compare
McDermitt, supra (finding that counsel had no duty to consult where
appellant pleaded no contest and received lenient sentence of probation;
rational defendant would not desire an appeal from a generous sentence).
We therefore find that counsel was ineffective for failing to take the extra
step of consulting with Appellant, following sentencing, to ascertain whether
or not Appellant wished to present the preserved suppression issue to this
Court.7
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6
Arguably, the mere fact that trial counsel preserved the issue for appeal is
a sufficient ground to hold that a rational defendant would desire an appeal,
since counsel is presumed effective. Flores-Ortega stated that a non-
frivolous ground is an example of why a rational defendant would wish to
appeal, not that it is the only criterion that matters.
7
We recognize the PCRA court’s conclusion that, since counsel discussed
with Appellant the preservation of the suppression issue as a component of
proceeding to the stipulated trial, Appellant was armed with all information
he needed to request an appeal. In other words, the PCRA court concluded
that the pre-sentencing advice was sufficient.
(Footnote Continued Next Page)
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We now address the prejudice prong. To establish that the failure to
consult entitles Appellant to relief, he must demonstrate that “but for
counsel’s deficient conduct, he would have appealed.” Flores-Ortega,
supra at 486. The prejudice inquiry is satisfied if Appellant demonstrates a
nonfrivolous issue for appeal. “[T]he prejudice inquiry . . . is not wholly
dissimilar from the inquiry used to determine whether counsel performed
deficiently in the first place; specifically, both may be satisfied if the
defendant shows nonfrivolous grounds for appeal.” Id. at 486. Applying
this test, Appellant has established prejudice, as counsel failed to provide
advice regarding an appeal of the suppression issue that was explicitly
preserved for review. Hence, he is entitled to relief.
_______________________
(Footnote Continued)
It does not appear that any Pennsylvania case has directly addressed
whether consultation can occur before the right to appeal is actually
triggered, i.e., post-sentencing. See e.g. United States v. Cong Van
Pham, 722 F.3d 320, 324, n.16 (5th Cir. 2013) (declining to impose
mechanical rule that consultation must always follow sentencing, but noting
in the particular case that counsel merely “discussed an appeal in the
abstract” prior to sentencing). As discussed supra, we find that adequate
consultation requires advice regarding whether an appeal should actually be
pursued. Therefore, we need not decide that question.
Furthermore, we note that the record reveals that the discussion of
stipulation and preserving the issue occurred no later than October 4, 2012,
the date Appellant was found guilty following the stipulated trial. However,
Appellant was not sentenced until November 29, 2012. Thus, to the extent
pre-sentencing consultation is possible, it is doubtful that the October 4,
2012 conversation would qualify since Appellant cannot reasonably be
expected to remember the nuances of a conversation that occurred almost
two months before he could actually file an appeal. This is not a case where
the pre-sentencing consultation immediately preceded sentencing.
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Order reversed. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2017
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