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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA

v.
CHARLES HOUSER,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3865 EDA 2017 Appeal from the PCRA Order October 23, 2017 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP

- 23

- CR

- 0006793

- 2015

BEFORE: PANELLA, J., MURRAY, J., and STEVENS * , P.J.E. MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 14, 2018 Charles Houser appeals from the order entered in the Delaware County Court of Common Pleas, which dismissed his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 9546. Further, Scott D. Gal l oway, Esquire, has filed an application to withd raw from representation and an Anders b rief. 1 W e affirm and grant Attorney Galloway leave to withdraw.

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 Attorney Gallow ay has filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967) , apparently in the mistaken belief that an Anders brief is required where counsel seeks to withdraw on appeal following the denial of PCRA relief. The dictates of Anders apply only on direct appeal, not on collateral review. Counsel files an Anders brief on direct appeal when he determines the appeal is “wholly frivolous.” Id ., at 744. T he appropriate filing would have been a Turner / Finley “ no - merit ” letter. See Commonweal th v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213J

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The relevant facts and procedural history are as follows. F ollowing a bench trial, the court convicted H ouser of misrepresenting his criminal record in connection with his attempt to purchase a firearm and unsworn falsification to authorities . The trial court sentenced Houser to 12 to 24 months’ incarceration, followed by a probationary term . Houser did not file a direct appeal. Instead, Houser filed a timely pro se PCRA petition. In his petition, Houser alleged trial counsel’s ineffectiveness for failing to challenge his
inaccurate criminal history at trial and file a direct appeal as reque sted. The PCRA court appointed Attorney Galloway as PCRA counsel. After reviewing the record, Attorney Galloway filed a petition to withdraw as counsel along with a letter asserting that there was no merit to either of Houser’s contentions. However, becaus e the PCRA court determined that Houser’s petition raised a question of fact regarding whether Houser asked trial counsel to file an appeal, the court denied Attorney Galloway’s request to withdraw and scheduled an evidentiary hearing on the issue

. 2

_________________ __________ ______ ____ _______ (Pa. Super. 1988) ( en banc ). Regardless, beca use a n Anders brief provides greater protection to a defendant than a Turner / Finley no - merit letter, this Court may accept a n Anders br ief in lieu of a Turner / Finley letter. See Commonwealth v. Fusselman , 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).

2 In this order, the PCRA court indicated its intent to dismiss Houser’ s other claim, that trial counsel was ineffective for failing to chall enge the accuracy of his criminal history, without a hearing. See Order, 7/18/17. The PCRA court ultimately dismissed this claim. See Order, 10/23/17. This claim is not at issue in this appeal.J

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At th e hearing, Houser testified that James, Wright, Esquire, represented at him trial and sentencing

. See N.T., PCRA Hearing, 10/20/17,
at 5. Prior to sentencing, Houser claimed he met with Attorney Wright and was informed that his sentencing “paperwork” was “ all screwed up.” I d ., at 5

- 6, 8. Based upon this information, Houser asserted he told Attorney Wright to appeal his sentence. See id ., at 6. However, Houser later discovered Attorney Wright did not appeal his sentence as requested. See id ., at 6

- 7.
Attorn ey Wright testified at the hearing. While he confirmed representing Houser during his trial and sentencing, he did not recall having a conversation about sentencing “paperwork” with Houser prior to sentencing. See id ., at 11

- 12. Further, Attorney Wright testified that it was his practice to note in a client’s file when an appeal had been requested. See id ., at 12

- 13. However, Attorney Wright indicated that there was no notation in Houser’s file that he ever requested an appeal. See id ., at 13

- 14. At the conclusion of the hearing , the PCRA court indicated that it found Attorney Wright’s testimony that Houser did not request an appeal to be credible. See id ., at 15. The PCRA court disbelieved Houser. Therefore, the

c ourt denied Houser’s PCRA petition. Houser filed a timely appeal. Attorney Galloway has filed a petition to withdraw on appeal as well as an Anders brief. Prior to addressing the merits of Houser’s requested appeal, we must first examine Attorney Galloway ’s request to withdraw. Attorney Galloway’s brief more closely resemble s an advocate’s brief than an Anders brief. See Commonwealth v. Santiago , 978 A.2d 349 , 361 (Pa. 2009) (articulatingJ

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Anders requirements) . Attorney Galloway, however, has indicated he s ent Houser a copy of the brief, the petition to withdraw, and a letter informing Houser of his right to proceed pro se or with new counsel. See Commonwealth v. Daniels , 999 A.2d 590, 594 (Pa. Super. 2010) (providing that counsel must inform client by letter of rights to proceed once counsel moves to withdraw and append a copy of the letter to the petition). Houser has not filed a response to either of Attorney Galloway’s filings. The brief may not meet the necessary technical requirements of Anders

an d Santiago , but under the circumstances of this case, we need not remand for the preparation of a proper brief. Houser’s issue on appeal is based solely on the PCRA court’s credibility determination, and our resolution of this issue would not be aided, in any meaningful way, by a new filing in compliance with
Turner / Finley

. “On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court’s findings are supported by the record and without legal err or.” Commonwealth v. Edmiston , 65 A.3d 339, 345 (Pa. 2013) (citation omitted). The PCRA court’s findings will not be disturbed unless the certified record lacks support for the findings. See Commonwealth v. Carr , 768 A.2d 1164, 1166 (Pa. Super. 2001). “Fur ther, the PCRA court’s credibility determinations are binding on this Court, where there is record support for those determinations.” Commonwealth v. Anderson , 995 A.2d 1184, 1189 (Pa. Super. 2010) (citation omitted).J

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Houser’s sole claim on appeal is that trial counsel rendered ineffective assistance when he failed to file Houser’s requested direct appeal. To succeed on this claim, Houser must establish, by pleading and proving, that the underlying issue has arguable merit; that counsel’s actions lacked an objective reasonable basis; and that actual prejudice resulted from counsel’s act or failure to act. See Commonwealth v. Rykard , 55 A.3 d 1177, 1190 (Pa. Super. 2012). “Generally, if counsel ignores a defendant’s request to file a direct appeal, the defendant is entitled to have his appellate rights restored.” Commonwealth v. Spencer , 892 A.2d 840, 842 (Pa. Super. 2006) (citing Commonwealth v. Lantzy , 736 A.2d 564 (Pa. 1999)). This is because “where 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” and such failing constitu tes prejudice per se . Lantzy , 736 A.2d at 572 (footnote omitted). However, “relief is only appropriate where the petitioner pleads and proves that a timely appeal was in fact requested and that counsel ignored that request.” Spencer , 892 A.2d at 842 (citat ion omitted). Here, Houser pled his claim in his PCRA petition and attempted to prove this claim by testifying that he requested Attorney Wright file a direct appeal on his behalf. However, Attorney Wright testified that he had no recollection of this requ est. In ruling against Houser, the PCRA court accepted Attorney Wright’s testimony as credible and accurate

— a nd squarely rejected Houser’s version of events. See N.T., PCRA Hearing , 10 /20/17, at 15. S ee also PCRAJ

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Court’s Opinion, 1/19/18, at 6. The record supports this credibility determination. Thus, we are bound by that finding. See Anderson , 995 A.2d at 1189. As the record contradicts Houser’s assertion that trial counsel ignored his timely request to file a direct appeal, we affirm the PCRA court’s ord er dismissing his PCRA petition and we grant Attorney Galloway’s petition to withdraw as counsel. Our independent review of the certified record does not reveal any other meritorious issues. Order affirmed. Petition to withdraw as counsel granted. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/14/18