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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DWAYNE HILL, : No. 2113 EDA 2016
:
Appellant :
Appeal from the PCRA Order, June 27, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0005022-2007
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 11, 2017
Dwayne Hill appeals from the denial of his PCRA1 petition seeking
restoration of his direct appeal rights nunc pro tunc in this violation of
probation (“VOP”) case. We affirm.
This history of this case has been aptly summarized by the PCRA court
as follows:
On January 11, 2008, following a jury waiver
trial before the Honorable John M. Younge,
[appellant] was found guilty of Possession with
Intent to Deliver (“PWID”) (35 P.S. § 780-113
§§ A30), Criminal Conspiracy (18 Pa. C.S. § 903
§§ A1), Simple Possession (35 P.S. § 780-113
§§ A16), and Possession of Drug Paraphernalia
(35 P.S. § 780-113 §§ A32). On April 17, 2008,
[appellant] was sentenced to four (4) years of
probation for both [the] PWID and Conspiracy
charges, with no further penalty for the remaining
1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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charges. [Appellant]’s case was subsequently
transferred to the Honorable Rayford A. Means.
On August 24, 2008, while on this Court’s
probation, [appellant] was arrested and charged with
Rape with Forcible Compulsion (18 Pa. C.S. § 3121
§§ A1). On May 25, 2013, following a jury trial,
[appellant] was found guilty of Rape with Forcible
Compulsion. The victim in that case was a sixteen
year old girl. At a [VOP] hearing on October 17,
2013, this Court found [appellant] to be in direct
violation of its probation. This Court revoked
[appellant]’s probation and issued a new sentence of
five (5) to ten (10) years of confinement for both the
PWID and Conspiracy charges, to run
concurrently.[2]
On December 12, 2013, [appellant] filed a
petition pursuant to the [PCRA]. Counsel was
appointed, and on April 14, 2015 filed an amended
petition. This Court held a PCRA hearing on June 27,
2016. At that hearing, this Court found [appellant]
to be incredible, and his PCRA petition was
subsequently denied. [Appellant] filed a timely
Notice of Appeal to the Superior Court of
Pennsylvania. On August 17, 2016, pursuant to this
Court’s order, [appellant] filed a Concise Statement
of Matters Complained of on Appeal [pursuant to
Pa.R.A.P. 1925(b)], in which he set forth several
issues and also requested to be able to supplement
the statement upon receipt of all relevant notes of
testimony. On October 11, 2016, having confirmed
the availability of all relevant notes of testimony, and
having head [sic] nothing further from [appellant],
this Court issued a second order pursuant to
Rule 1925(b). On October 20, 2016, [appellant]
filed a second Concise Statement. [Appellant]
alleges that this Court erred in not reinstating his
appellate rights nunc pro tunc, for numerous
reasons which are addressed below.
2
Appellant’s VOP sentence of 5 to 10 years’ imprisonment was to be served
consecutively to his sentence of 8 to 16 years for rape.
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PCRA court opinion, 11/30/16 at 1-2.
Appellant has raised the following issues for this court’s review:
I. Is [appellant] entitled to reinstatement of his
appeal rights nunc pro tunc from the
judgment of sentence imposed at his VOP
hearing when he proved by a preponderance of
the evidence that he requested within 6 days
via letter to his counsel that counsel pursue an
appeal and when he believed that counsel may
not have received the letter, he then filed a
PCRA Petition within 60 days of the VOP
sentence hearing?
II. Was the sentence imposed by the trial court
illegal because the trial court did not order that
[appellant] be given credit for time served?
III. Is [appellant] entitled to a new VOP/sentence
hearing because he was denied his
Constitutional right to an adversarial process at
the VOP/sentence hearing?
Appellant’s brief at 2.
This Court’s standard of review regarding an order
denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
To prevail on a claim alleging counsel’s
ineffectiveness under the PCRA, Appellant must
demonstrate (1) that the underlying claim is of
arguable merit; (2) that counsel’s course of conduct
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was without a reasonable basis designed to
effectuate his client’s interest; and (3) that he was
prejudiced by counsel’s ineffectiveness, i.e. there is
a reasonable probability that but for the act or
omission in question the outcome of the proceeding
would have been different. Commonwealth v.
Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999);
Commonwealth v. Douglas, 537 Pa. 588, 645
A.2d 226, 230 (1994).
Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001).
It is well settled that when a lawyer fails to file a
direct appeal requested by the defendant, the
defendant is automatically entitled to reinstatement
of his direct appeal rights. Commonwealth v.
Lantzy, 558 Pa. 214, 736 A.2d 564 (1999). Where
a defendant does not ask his attorney to file a direct
appeal, counsel still may be held ineffective if he
does not consult with his client about the client’s
appellate rights. Roe v. Flores-Ortega, 528 U.S.
470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000);
[Commonwealth v. Carter, 21 A.3d 680, 682-683
(Pa.Super. 2011)]. Such ineffectiveness, however,
will only be found where a duty to consult arises
either because there were issues of merit to raise on
direct appeal or the defendant, in some manner,
displayed signs of desiring an appeal. Roe v.
Flores-Ortega, supra.
Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa.Super. 2011),
appeal denied, 40 A.3d 1235 (Pa. 2012).
The right of a criminal defendant to appeal is
guaranteed in the Pennsylvania Constitution,
Article V § 9. However, before a court will find
ineffectiveness of trial counsel for failing to file a
direct appeal, Appellant must prove that he
requested an appeal and that counsel disregarded
this request. Commonwealth v. Lehr, 400
Pa.Super. 514, 583 A.2d 1234, 1235 (1990). Mere
allegation will not suffice; the burden is on Appellant
to plead and prove that his request for an appeal
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was ignored or rejected by trial counsel.
Commonwealth v. Collins, 546 Pa. 616, 622, 687
A.2d 1112, 1115 (1996); Commonwealth v.
Fanase, 446 Pa.Super. 654, 667 A.2d 1166, 1169
(1995).
Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa.Super. 1999),
appeal denied, 753 A.2d 815 (Pa. 2000) (footnote omitted).
Appellant alleged that he sent trial counsel a letter on October 18,
2013, the day after sentencing, requesting that counsel file post-sentence
motions and a direct appeal. Following an evidentiary hearing, the PCRA
court rejected appellant’s claim as not credible. The PCRA court explained,
There is no credible evidence on the record to
support [appellant]’s claim that he requested to file a
post-sentence motion or appeal. The only
corroborating evidence of a request to file such a
motion is [appellant]’s own testimony that he sent a
letter to the Defender Association. This Court
determined that [appellant]’s testimony was
incredible based on the following: (1) There is no
record that the letter was sent from the prison or
received at the Defender’s office; (2) An attorney
who had served with the Defenders for some time
testified at the hearing that it would have been
common practice to make a record of such a request
were it received; and, (3) [appellant] did not
mention the letter in his original PCRA filing, making
his testimony and his petition inconsistent with one
another. As such, [appellant] has not met his
burden in demonstrating ineffective assistance of
counsel.
PCRA court opinion, 11/30/16 at 5. The PCRA court made a credibility
determination, which is unassailable on appeal. See Commonwealth v.
Widgins, 29 A.3d 816, 820 (Pa.Super. 2011), citing Commonwealth v.
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Johnson, 966 A.2d 523, 539 (Pa. 2009) (“The PCRA court’s credibility
determinations are binding on this Court, where the record supports those
determinations.”). We have no basis for disturbing the PCRA court’s
determination in this regard.3
Next, appellant complains that his sentence was illegal because the
trial court failed to award credit for time served from August 24, 2008, when
he was arrested on the rape charge. (Appellant’s brief at 8.) This issue was
not raised in either appellant’s original pro se PCRA petition or in his
counseled amended petition. However, we acknowledge that the issue goes
to the legality of appellant’s sentence and is non-waivable, so long as this
court has jurisdiction. See Commonwealth v. Little, 612 A.2d 1053,
1053 n.1 (Pa.Super. 1992), citing Commonwealth v. Hollawell, 604 A.2d
723 (Pa.Super. 1992) (“Appellant’s challenge to the trial court’s failure to
award credit for time served prior to sentencing involves the legality of
sentence. A claim challenging the legality of a sentence is appealable as of
right.”); see also Commonwealth v. Edrington, 780 A.2d 721, 723
(Pa.Super. 2001) (“So long as jurisdictional requirements are met, ‘[a]n
illegal sentence can never be waived and may be reviewed sua sponte by
3
Appellant does not argue that trial counsel had a duty to consult, only that
he specifically requested that trial counsel file a direct appeal and that trial
counsel disregarded his request. See Markowitz, 32 A.3d at 715 n.10
(observing that Harmon is still viable precedent after Roe v.
Flores-Ortega insofar as to establish a claim of per se trial counsel
ineffectiveness, a defendant must demonstrate that counsel neglected to file
a requested direct appeal).
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this court.’”), quoting Commonwealth v. Archer, 722 A.2d 203, 209
(Pa.Super. 1998).
Nevertheless, appellant was not entitled to credit time where it
appears that all time he served between the date of his August 24, 2008
arrest and his VOP hearing was already credited towards his 8 to 16-year
sentence for rape. (Commonwealth’s brief at 11.) His 5 to 10-year VOP
sentence for PWID and conspiracy was run consecutively to his new
sentence on the rape conviction. Appellant is not entitled to double credit.
42 Pa.C.S.A. § 9760(4); Commonwealth v. Ellsworth, 97 A.3d 1255,
1257 (Pa.Super. 2014) (“This Court has held that a defendant is not entitled
to ‘receiv[e] credit against more than one sentence for the same time
served.’”), quoting Commonwealth v. Merigris, 681 A.2d 194, 195
(Pa.Super. 1996); Martin v. Pa. Bd. of Prob. & Parole, 840 A.2d 299, 309
(Pa. 2003) (“[W]here an offender is incarcerated on both a Board [of
Probation and Parole] detainer and new criminal charges, all time spent in
confinement must be credited to either the new sentence or the original
sentence.” (footnote omitted)); Bright v. Pa. Bd. of Prob. & Parole, 831
A.2d 775, 778 (Pa.Cmwlth. 2003) (Section 9760(4) mandates that credit for
time served on a sentence can only be granted when it has not already been
credited toward another sentence).
Finally, appellant alleges that trial counsel was ineffective for various
reasons including failure to consult with appellant, failure to object to undue
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delay, failure to request a presentence investigation report, failure to
question the probation officer at the VOP hearing, failure to introduce
evidence regarding appellant’s family history and rehabilitative needs, and
failure to request that the trial court put its reasons for appellant’s sentence
on the record. (Appellant’s brief at 9.) Appellant argues that this
constituted an abandonment by trial counsel. (Id. at 9-10.) None of these
issues were raised in either appellant’s pro se PCRA petition or in his
counseled amended petition; as such, they are deemed waived. See
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (“It is
well-settled that issues not raised in a PCRA petition cannot be considered
on appeal.” (quotation marks and citations omitted)); Commonwealth v.
Santiago, 855 A.2d 682, 691 (Pa. 2004) (claim not raised in PCRA petition
cannot be raised for the first time on appeal, and is “indisputably waived”);
42 Pa.C.S.A. § 9544(b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2017
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