J-S07044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KELCEY LEE HANN

Appellant No. 898 MDA 2014

Appeal from the PCRA Order April 28, 2014

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0001262-2010

BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED APRIL 17, 2015

Kelcey Lee Hann appeals from the order entered April 28, 2014, in the 

Court of Common Pleas of Franklin County, denying, after a hearing, his first 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 

9541 et seq. Hann seeks relief from the December 14, 2011, judgment of 

sentence of five to ten years’ imprisonment, imposed after a jury found him 

guilty of one count of aggravated assault.1 In this appeal, Hann’s sole claim 

is that trial counsel was ineffective for failing to perfect a direct appeal to 

this Court, as requested.2 For the reasons set forth below, we affirm.

____________________________________________

1 18 Pa.C.S. § 2702(a)(1).

2 Hann preserved this issue by timely complying with the order of the PCRA 

court to file a statement of errors complained of on appeal, pursuant to 

Pa.R.A.P. 1925(b).
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The PCRA court concisely set forth the background of this case, which 

we incorporate by reference. See PCRA Court Opinion, 4/28/2014, at 1–2. 

The principles that guide our review are as follows:

On appeal from the denial of PCRA relief, our standard of review 

requires us to determine whether the ruling of the PCRA court is 

supported by the record and free of legal error. Commonwealth 

v. Washington, 592 Pa. 698, 927 A.2d 586, 593-94 (Pa. 2007). 

To be eligible for relief based on a claim of ineffective assistance 

of counsel, a PCRA petitioner must demonstrate by a 

preponderance of the evidence that (1) the underlying claim is of 

arguable merit; (2) no reasonable basis existed for counsel's 

action or omission; and (3) there is a reasonable probability that 

the result of the proceeding would have been different absent 

such error. Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 

786, 796 (Pa. 2008).

Commonwealth v. Widgins, 29 A.3d 816, 819 (Pa. Super. 2011). 

It is well settled that the unjustified failure to file a requested direct 

appeal is ineffective assistance of counsel per se and that an appellant need 

not show that he likely would have succeeded on appeal in order to meet the 

prejudice prong of the test for ineffectiveness. Commonwealth v. Bath, 

907 A.2d 619, 622 (Pa. Super. 2006), appeal denied, 918 A.2d 741 (Pa. 

2007). However, “[b]efore a court will find ineffectiveness of counsel for 

failing to file a direct appeal, the defendant must prove that he requested an 

appeal and that counsel disregarded that request.” Id. (citation omitted). 

At the December 27, 2013, PCRA hearing, trial counsel, Karl Rominger, 

Esquire, who was retained by Hann’s mother, testified regarding his 

discussion of a direct appeal with Hann’s family. He stated, “[W]hen we got 

the denial [of the post sentence motion] ... they [Hann’s parent’s] were 
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going to decide whether they wanted to pay for the appeal or whether he 

was going to serve his time, and I indicated to them that they needed to let 

me know what he wanted to do, and I would act accordingly, and I never 

heard back from them.” N.T., 12/27/2014, at 22. Hann, in his testimony, 

stated that after sentencing, trial counsel “said that he was going to file 

motions, and see what happened with that, then he was going to file my 

appeal.” Id. at 45. Hann further testified that after the trial court granted 

his post-sentence motion for bail, trial counsel told him “to go home and 

spend time with your family and if we get the appeal granted, which means 

... a new trial, then we’ll be talking about the payments ....” Id. at 48. 

The PCRA court found Hann’s testimony lacking in credibility, found 

trial counsel’s testimony to be credible, and concluded no relief was due on 

Hann’s claim of ineffectiveness for failure to file a direct appeal. The PCRA 

Court, in support of its determination, opined:

In considering [Hann’s] credibility we assessed his demeanor, his 

apparent uncertainty in what he wanted to say, and the overall 

shaky delivery of his testimony. In the Court’s experience it 

would seem exceptionally unlikely that an attorney that is 

privately retained for a fee would offer to go through an entire 

appeal process without requiring any payment or even 

discussing payment with the client until after an appeal is 

granted as [Hann] suggests was the case with Attorney 

Rominger. As such, we do not believe [Hann’s] testimony in 

regards to his conversations with trial counsel.

At the PCRA hearing trial counsel testified that he had 

spoken with [Hann’s] family members immediately after 

[Hann’s] sentencing hearing about the filing of a direct appeal. 

Attorney Rominger testified that “the family was trying to decide 

whether they wanted to pay for an appeal or not or whether he 
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wanted to start serving his time and be done with his sentence.” 

He further testified that he met with [Hann’s] family members 

instead of [Hann] directly because he did not know [Hann] had 

been released on bail. Attorney Rominger met with [Hann’s] 

family members on a couple of occasions where “[he] indicated 

to them that they needed to let [him] know what [Hann] 

wanted to do, and [he] would act accordingly, and [he] never 

heard back from them.” Moreover, Attorney Rominger testified 

that [Hann’s] fee agreement did not include the cost of an 

appeal, as is the regular practice at his firm. He testified, “[w]e 

make that very clear that you are hiring us for either a resolution 

short of jury trial or a jury trial, and either one would include 

sentencing.” Attorney Rominger uses a separate fee agreement 

for post-trial matters including appeals. He indicated that he told 

[Hann’s] family that he would charge about $2000 to file an 

appeal and such fee was never paid, as admitted to in [Hann’s] 

own testimony.

Upon review of the record and consideration of the 

testimony taken at the PCRA hearing we make the following 

findings of fact. [Hann] retained Attorney Rominger throughout 

his trial as a private attorney meaning his representation as 

counsel was based on fee agreements. This is not the case 

where trial counsel was appointed and it is expected that 

appointed counsel continue representation after sentencing. The 

original fee agreement was for representation throughout trial 

and did not include representation on appeal, as is the regular 

practice of Attorney Rominger’s firm. Furthermore, from the 

outset of his representation[,] Attorney Rominger had 

communicated with [Hann’s] family in regards to Attorney 

Rominger’s representation of [Hann]. [Hann] even testified that 

his mother was the one who hired Attorney Rominger. Attorney 

Rominger met with [Hann’s] family on multiple occasions, 

advised them that the cost of an appeal would be about $2000 

and that they needed to inform him as to whether they wanted 

to proceed with an appeal. [Hann’s] family indicated to trial 

counsel that they were not sure if they wanted to pay for an 

appeal or whether [Hann] would just serve his sentence. [Hann] 

and his family never paid a fee to Attorney Rominger for the 

filing of an appeal, as made clear by [Hann’s] own testimony.

[Hann] bears the burden of demonstrating that he 

requested an appeal. [Hann’s] failure and his family’s failure to 

pay any money towards an appeal is strong circumstantial 
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evidence against a showing of an affirmative request for appeal. 

The initial fee agreement and the fact that [Hann’s] family was 

informed of the cost of appeal put [Hann] on notice that 

representation by trial counsel did not automatically carry over 

to an appeal, as a new fee agreement was required for 

representation on appeal. While trial counsel informed the Court 

during the sentencing hearing that he was intending on filing an 

appeal, it was clearly subject to a request by [Hann] or [Hann’s] 

family pursuant to his discussion with [Hann’s] family directly 

after the sentencing hearing where trial counsel told [Hann’s] 

family they needed to let him know if they wanted to file an 

appeal. [Hann] and his family never made such a request.

As discussed earlier, we find [Hann’s] testimony relating to 

his conversations with Attorney Rominger relating to the filing of 

an appeal to be incredible. Even if we were to believe [Hann’s] 

testimony, his interaction with Attorney Rominger after the bail 

and restitution hearing did not amount to a request to file an 

appeal. While it may suggest the mere possibility of filing an 

appeal, the testimony does not indicate that [Hann] actually 

requested Attorney Rominger to proceed with the filing of an 

appeal.

It is [Hann’s] burden to establish that he actually requested trial 

counsel to file an appeal. In light of the evidence before the 

Court, including testimony taken at the PCRA hearing, [Hann] 

has failed to meet his burden. Attorney Rominger’s decision not 

to file an appeal to the Superior Court was justified as he was 

not requested to do so. Therefore, [Hann’s] ineffective 

assistance of counsel claim based on trial counsel’s failure to file 

an appeal must fail.

PCRA Court Opinion, 4/28/2014, at 4–7.

In light of the conflicting testimony presented at the PCRA hearing, we 

apply the following legal maxim. “The PCRA court’s credibility 

determinations are binding on this Court, where the record supports those 

determinations.” Widgins, supra, 29 A.3d at 820 (citation omitted). See 

also Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011) (appellate 
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courts are required to give great deference to a PCRA court’s credibility 

determinations, and if supported by the record, the determinations are 

binding on a reviewing court). Our review confirms that the PCRA court’s 

findings and determinations are supported by the record and, therefore, we 

must accept them. Accordingly, we affirm.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/2015