J-S58043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEFFREY ELDON MILES, SR. :
:
Appellant : No. 558 MDA 2017
Appeal from the PCRA Order March 13, 2017
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001892-2012
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 14, 2017
Appellant, Jeffrey Eldon Miles, Sr., appeals from the order entered in
the Franklin County Court of Common Pleas, which dismissed his first
petition brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We
reverse and remand for further proceedings.
The relevant facts and procedural history of this case are as follows.
On November 20, 2014, a jury convicted Appellant of first-degree murder in
connection with the 1995 death of Victim. The court sentenced Appellant
that day to life imprisonment. Following sentencing, the court explained
Appellant’s post-sentence/appellate rights and informed Appellant that trial
counsel would continue to provide legal representation if Appellant wanted to
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1 42 Pa.C.S.A. §§ 9541-9546.
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file post-sentence motions or a direct appeal. Trial counsel did not file post-
sentence motions or a direct appeal on Appellant’s behalf.
Within the 30-day appeal period, on December 9, 2014, Appellant filed
a pro se document titled “Direct Appeal for Denial of Mistrial.” In this filing,
Appellant alleged that two days prior to the conclusion of trial, two jurors
had observed Appellant handcuffed in the court elevator. Appellant claimed
the jurors’ observation of Appellant in handcuffs undermined his
presumption of innocence and warranted a new trial. After confirming with
court deputies that a juror had seen Appellant in handcuffs,2 trial counsel
made an oral motion for a mistrial on the last day of trial, which the court
denied. Appellant sought to appeal the court’s ruling.
On December 18, 2014, the court entered an order explaining it would
take no further action on Appellant’s pro se filing based on the rule against
hybrid representation, because Appellant was still represented by counsel of
record. Instead, the court directed the clerk of courts to forward Appellant’s
pro se filing to defense counsel and counsel for the Commonwealth pursuant
to Pa.R.Crim.P. 576(A)(4) (stating in any case in which defendant is
represented by attorney, if defendant submits written motion, notice or
document that has not been signed by defendant’s attorney, clerk of courts
shall accept it for filing and forward copy of time-stamped document to
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2Trial counsel discovered one juror and one tipstaff had seen Appellant in
handcuffs.
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defendant’s attorney and attorney for Commonwealth within 10 days of
receipt). Additionally, the court’s order provided: “THE DEFENDANT IS
FURTHER DIRECTED to file a request to waive the right to counsel and
proceed pro se should he wish to represent himself on direct appeal or to
discuss the filing of his Direct Appeal for Denial of Mistrial with his counsel.”
(Order, filed 12/18/14, at 1) (emphasis in original). Nothing else took place
regarding Appellant’s direct appeal.
Appellant timely filed a pro se PCRA petition on November 19, 2015,
alleging, inter alia, trial counsel was ineffective for failing to file a direct
appeal on Appellant’s behalf. The court appointed PCRA counsel the next
day. After several extensions of time, Appellant filed a counseled amended
PCRA petition on June 10, 2016. In his amended petition, Appellant claimed
trial counsel was ineffective for: (1) failing to file a direct appeal on
Appellant’s behalf, where counsel was on notice by way of Appellant’s
December 9, 2014 pro se filing that he wanted to appeal; and (2) failing to
file a motion to suppress Appellant’s incriminating statements to police.
The court held a PCRA hearing on August 4, 2016. Trial counsel
testified at the PCRA hearing, inter alia: (1) aside from reviewing the docket
entries in this case, counsel had no independent recollection of receiving
Appellant’s pro se motion to file an appeal; (2) nevertheless, counsel’s
invoice for Appellant’s representation confirmed counsel had reviewed the
pro se filing; (3) trial counsel probably did not reach out to Appellant
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following receipt of the pro se filing because the court’s December 18, 2014
order placed the onus on Appellant to contact counsel if Appellant wanted to
pursue the appeal; (4) counsel did not believe Appellant’s challenge to the
court’s denial of his motion for a mistrial would succeed on appeal; and (5)
counsel did not file a suppression motion because counsel had unsuccessfully
litigated a suppression motion in another case involving Appellant; Appellant
made the statements at issue in this case at the same time he made
incriminating statements in the other case, so the basis for filing a
suppression motion would have been the same and likely yielded another
unsuccessful result.
Appellant testified at the PCRA hearing, inter alia: (1) trial counsel
failed to file a suppression motion on Appellant’s behalf because counsel said
he was a “trial lawyer” and not a “motion-filing attorney”; (2) after the court
read Appellant’s post-sentence/appellate rights, Appellant told counsel he
wanted to appeal; (3) trial counsel said he would visit Appellant in two to
four days to discuss filing an appeal; (4) trial counsel did not visit Appellant
as promised; and (5) Appellant wanted to challenge the court’s denial of his
motion for a mistrial on direct appeal. The court deferred ruling on the PCRA
petition pending submission of post-hearing briefs.
Appellant filed a post-hearing brief on October 13, 2016. The
Commonwealth submitted its brief on October 28, 2016. On March 13,
2017, the court denied PCRA relief. Appellant timely filed a notice of appeal
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on March 28, 2017. On March 31, 2017, the court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant timely complied on April 18, 2017.
Appellant raises the following issues for our review:
DID THE [PCRA] COURT ERR BY DENYING APPELLANT’S
AMENDED PCRA PETITION WHEN THE [PCRA] COURT
CONCLUDED THAT [APPELLANT] NEVER CONTACTED
TRIAL COUNSEL REGARDING [APPELLANT’S] DESIRE TO
FILE AN APPEAL WHEN TRIAL COUNSEL ADMITTED TO
RECEIVING AND REVIEWING [APPELLANT’S] PRO SE
DIRECT APPEAL FOR DENIAL OF MISTRIAL?
DID THE [PCRA] COURT ERR BY DENYING APPELLANT’S
AMENDED PCRA PETITION WHEN THE [PCRA] COURT
CONCLUDED THAT TRIAL COUNSEL HAD A REASONABLE
BASIS FOR NOT FILING A MOTION TO SUPPRESS
INCRIMINATING STATEMENTS MADE BY [APPELLANT]?
(Appellant’s Brief at 4).3
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959
A.2d 319 (2008). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). If the record
supports a post-conviction court’s credibility determination, it is binding on
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3 For purposes of disposition, we have re-ordered Appellant’s issues.
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the appellate court. Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297
(2011). “A PCRA court’s legal conclusions, however, are reviewed de novo.”
Commonwealth v. Green, ___ A.3d ___, 2017 PA Super 243 (filed July
24, 2017).
In his first issue, Appellant argues he took adequate steps to protect
his appellate rights by filing a “Direct Appeal for Denial of Mistrial,” within
the 30-day appeal period. Appellant asserts that trial counsel’s billing
statement introduced as an exhibit at the PCRA hearing proves counsel
reviewed Appellant’s pro se filing. Appellant claims the docket entries also
confirm the clerk of courts forwarded Appellant’s pro se filing to trial
counsel’s courthouse mailbox, where trial counsel admitted he receives mail.
Appellant insists trial counsel was ineffective for failing to file an appeal on
Appellant’s behalf and/or failing to consult with Appellant about whether to
pursue an appeal, in light of Appellant’s pro se filing. If his direct appeal
rights are reinstated nunc pro tunc, Appellant contends he will challenge the
sufficiency of the evidence, the weight of the evidence, and the denial of his
motion for a mistrial. Appellant concludes trial counsel was ineffective, and
this Court must reverse and remand for reinstatement of his direct appeal
rights nunc pro tunc. We agree relief is due.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),
appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). Generally, when
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asserting a claim of ineffective assistance of counsel, the petitioner is
required to plead and prove: (1) the underlying claim has arguable merit;
(2) counsel had no reasonable strategic basis for his action or inaction; and
(3) but for the errors and omissions of counsel, there is a reasonable
probability the outcome of the proceedings would have been different.
Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal
denied, 596 Pa. 707, 940 A.2d 365 (2007).
“Actual or constructive denial of the assistance of counsel, however,
falls within a narrow category of circumstances in which prejudice is legally
presumed.” Commonwealth v. Lane, 81 A.3d 974, 978 (Pa.Super. 2013),
appeal denied, 625 Pa. 658, 92 A.3d 811 (2014). Our Supreme Court has
held:
[W]here there is an unjustified failure to file a requested
direct appeal, the conduct of counsel falls beneath the
range of competence demanded of attorneys in criminal
cases, denies the accused the assistance of counsel
guaranteed by the Sixth Amendment to the United States
Constitution and Article I, Section 9 of the Pennsylvania
Constitution, as well as the right to direct appeal under
Article V, Section 9, and constitutes prejudice for purposes
of Section 9543(a)(2)(ii). Therefore, in such
circumstances, and where the remaining requirements of
the PCRA are satisfied, the petitioner is not required to
establish his innocence or demonstrate the merits of the
issue or issues which would have been raised on appeal.
Commonwealth v. Lantzy, 558 Pa. 214, 226-27, 736 A.2d 564, 572
(1999) (internal footnote omitted). In other words, where counsel neglects
to file a requested direct appeal, “counsel is per se ineffective as the
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defendant was left with the functional equivalent of no counsel.”
Commonwealth v. Markowitz, 32 A.3d 706, 715 (Pa.Super. 2011), appeal
denied, 615 Pa. 764, 40 A.3d 1235 (2012).
Even where a defendant does not expressly ask counsel to file a direct
appeal, counsel still has a duty “to adequately consult with the defendant as
to the advantages and disadvantages of an appeal where there is reason
to think that a defendant would want to appeal.” Commonwealth v.
Bath, 907 A.2d 619, 623 (Pa.Super. 2006) (emphasis added). In this
situation, where the defendant did not request counsel to file a direct appeal
but counsel failed to consult with the defendant, counsel is not per se
ineffective and the traditional three-prong test “is necessary to decide
whether counsel rendered constitutionally ineffective assistance by failing to
advise his client about his appellate rights.” Markowitz, supra at 716.
Pursuant to [Roe v. Flores-Ortega, 528 U.S. 470, 120
S.Ct. 1029, 145 L.Ed.2d 985 (2000) and its Pennsylvania
expression, Commonwealth v. Touw, 781 A.2d 1250
(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
1254 (quoting Roe[, supra] at 480, 120 S.Ct. [at 1036]).
Bath, supra at 623 (emphasis added). “Where a petitioner can prove either
factor, he establishes that his claim has arguable merit.” Markowitz, supra
at 716.
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Additionally, the defendant is not required to show he had meritorious
issues for appeal to establish counsel was ineffective for failing to consult
with the defendant regarding an appeal. Commonwealth v. Donaghy, 33
A.3d 12 (Pa.Super. 2011), appeal denied, 615 Pa. 753, 40 A.3d 120 (2012).
See also Green, supra at *4 n.5 (stating: “[A] claim that lacks merit is not
necessarily wholly frivolous. The duty to consult arises if there is a non-
frivolous issue to raise, not an ultimately meritorious issue”). Further,
prejudice in this context means a defendant must show a reasonable
probability that, but for counsel’s failure to consult, the defendant would
have sought additional review. Touw, supra at 1254. See also Donaghy,
supra (reversing order denying PCRA relief and remanding for reinstatement
of appellant’s direct appeal rights nunc pro tunc, where trial counsel failed to
consult with appellant about whether he wanted to file direct appeal;
appellant sent trial counsel letter during 30-day appeal period asking how
long appellant had to file appeal and what types of issues appellant could
raise on appeal; appellant’s letter sufficiently demonstrated desire to appeal
such that counsel should have made reasonable effort to discover appellant’s
wishes; counsel’s testimony at PCRA hearing that counsel believed appellant
had no viable reasons for appeal does not absolve counsel of his duty to
ascertain appellant’s wishes; counsel’s failure to consult with appellant about
filing direct appeal deprived appellant of his constitutional right to effective
assistance of counsel).
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Instantly, the PCRA court denied relief, concluding: “To prevail in the
instant case, [Appellant] must show that he either requested [trial counsel]
file a direct appeal or that issues of merit made it incumbent upon [trial
counsel] to file a direct appeal. [Appellant] has failed to demonstrate either
circumstance.” (See Opinion in Support of Order, filed March 13, 2017, at
21) (internal citation omitted). Initially, the PCRA court rejected Appellant’s
testimony that he asked counsel to file a direct appeal immediately after
sentencing. (See id. at 17). We are bound by the PCRA court’s credibility
determination in this regard. See Dennis, supra. Therefore, we agree with
the PCRA court that trial counsel was not per se ineffective. See Lantzy,
supra; Markowitz, supra.
We disagree, however, with the PCRA court’s legal conclusion that trial
counsel had no duty to consult with Appellant about whether he wanted to
appeal based on counsel’s unilateral belief that Appellant had no meritorious
issues to appeal. See Green, supra; Ford, supra. The record makes clear
Appellant filed a pro se document on December 9, 2014, detailing his intent
to appeal and the issue he wished to pursue on appeal, within the 30-day
appeal period. The clerk of courts forwarded this document to trial counsel,
and counsel conceded at the PCRA hearing that he reviewed it. Appellant
reasonably demonstrated his intent to appeal, and trial counsel had clear
notice Appellant wanted to file an appeal. Thus, Appellant’s claim that
counsel was ineffective for failing to consult with him about an appeal has
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arguable merit. See Roe, supra; Markowitz, supra; Bath, supra; Touw,
supra.
Trial counsel testified he did not file an appeal on Appellant’s behalf
because (1) counsel thought Appellant’s challenge to the court’s denial of his
motion for a mistrial would not succeed on appeal; and (2) the court’s
December 18, 2014 order directed Appellant to contact counsel if Appellant
wanted to appeal. Nevertheless, counsel’s belief that Appellant had no
meritorious issues for appeal did not absolve counsel of his duty to consult
with Appellant about filing an appeal. See Donaghy, supra. Additionally,
counsel’s failure to contact Appellant in the face of his clear intent to appeal
was not “reasonable” under these circumstances, despite the trial court’s
misdirective.4 See id.; Turetsky, supra.
Further, the record demonstrates Appellant wanted to file a direct
appeal. But for counsel’s deficient failure to consult with Appellant, he would
have filed an appeal, which satisfies the prejudice prong of the
ineffectiveness test. See Touw, supra. Therefore, trial counsel was
ineffective for failing to consult with Appellant about filing a direct appeal;
and Appellant is entitled to reinstatement of his direct appeal rights nunc pro
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4 By directing Appellant to contact trial counsel if he wished to appeal, the
PCRA court essentially gave trial counsel an excuse to do nothing despite his
duty to consult with Appellant and improperly placed the onus on Appellant
to secure the effective assistance of counsel.
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tunc.5 Accordingly, we reverse and remand for further proceedings.6
Order reversed; case remanded for further proceedings. Jurisdiction is
relinquished.
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5 We decline to reinstate Appellant’s right to file post-sentence motions nunc
pro tunc as Appellant has not requested that relief on appeal or at any time
before the PCRA court. See Commonwealth v. Liston, 602 Pa. 10, 977
A.2d 1089 (2009) (explaining where court reinstates direct appeal rights
nunc pro tunc, appellant is not automatically entitled to reinstatement of his
post-sentence rights nunc pro tunc as well; reinstatement of post-sentence
rights nunc pro tunc is proper only where defendant successfully pleads and
proves he was deprived of right to file and litigate post-sentence motions as
result of ineffective assistance of counsel). For the first time in his post-
hearing brief, and now on appeal, Appellant claimed he wanted to attack the
weight of the evidence in a direct appeal nunc pro tunc. Appellant’s oblique
reference to a weight-of-the-evidence challenge, which requires the filing of
post-sentence motions for issue preservation purposes, does not satisfy
Appellant’s obligation to plead and prove trial counsel was ineffective for
failing to file and litigate post-sentence motions. See id.
6 Due to our disposition, we decline to address separately Appellant’s second
issue on appeal. We repeat, however, that to establish counsel’s
ineffectiveness for failure to consult with Appellant, he did not have to
demonstrate meritorious issues for an appeal. So counsel’s unilateral
evaluation of Appellant’s proposed issues would not qualify as a rational
basis for counsel’s failure to consult with Appellant about filing an appeal.
See Donaghy, supra.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
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