J-S12022-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHARLIE FRANCO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1381 EDA 2021

Appeal from the PCRA Order Entered June 8, 2021

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0007063-2018

BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.

MEMORANDUM BY BOWES, J.: FILED MAY 13, 2022

Charlie Franco appeals from the order that denied his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

Appellant entered open guilty pleas to various offenses, including three 

counts of corrupt organizations, after he and multiple co-conspirators 

committed armed robbery of a car dealership and attempted kidnapping of 

the business’s owner. Following a presentence investigation, Appellant was 

sentenced on September 18, 2019, to an aggregate term of 189 to 378 

months of incarceration. The trial court denied Appellant’s timely postsentence motion on July 7, 2020. Appellant filed no direct appeal.

On September 21, 2020, Appellant, though counsel, filed a timely PCRA 

petition. Therein he alleged that he wanted to file a direct appeal but had 

been unable to communicate that desire “because of both the pandemic and 
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[Appellant] being unable to communicate his intention to trial counsel.” PCRA 

Petition, 9/21/20, at ¶ 9. Therefore, he requested that the PCRA court 

reinstate his rights to appeal from his judgment of sentence. The petition also 

indicated that counsel would amend the petition “once the discovery and other 

records are obtained.” Id. at 11. However, no amended petition followed. 

The trial court held an evidentiary hearing on the petition by video 

conference on June 8, 2021. The only witness to testify was Appellant. 

Appellant indicated that his initial counsel had reached an agreement with the 

prosecution that, if Appellant waived the preliminary hearing, the corrupt 

organizations charges “would be dropped and would not be bring up unless I 

go to trial, unless I take it to trial.” N.T. PCRA Hearing, 6/8/21, at 5. Appellant 

had different counsel at the time he entered his guilty plea. Appellant asserted 

that, although he informed plea counsel that the corrupt organizations counts 

had been dropped, counsel told him not to worry about it because it was not 

the lead charge and would not affect his overall sentence. Id. at 6. Appellant 

stated that he was unaware that corrupt organizations was graded as a felony 

of the first degree and would have been concerned that pleading to a firstdegree felony because he “would think it would be more time added on to it” 

and could end up as consecutive sentences. Id. at 7. He opted to plead guilty 

to the supposedly-dismissed charges nonetheless based upon his counsel’s 

advice. Id. at 8. Appellant did not offer any testimony concerning his desire 
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to appeal the sentence or his efforts to communicate such a desire to plea 

counsel. Nor did he call plea counsel to offer testimony as to any subject.

The Commonwealth objected to the fact that the PCRA petition alleged 

only the claim about the alleged inability to inform counsel that he wanted to 

appeal, and nothing about the purported deal about dismissing charges in 

exchange for waiving the preliminary hearing. Id. at 8-9. It nonetheless 

addressed the latter issue, arguing that it failed because a PCRA petitioner 

must establish that counsel lacked a reasonable basis for his act or omission, 

a burden that cannot be met without the testimony of the attorney in question. 

Id. at 10-11. Appellant’s PCRA counsel countered with the contention that 

plea counsel’s “negligence is clear” merely “from a plain reading of the 

docket.” Id. at 11.

The PCRA court asked if Appellant was still seeking reinstatement of his 

direct appeal rights, and he indicated the affirmative. In response to the PCRA 

court’s observation that Appellant offered no evidence regarding that claim, 

Appellant, through counsel, stated: “Well, Your Honor, again, we've 

referenced the docket, and there was no direct appeal filed, and that was 

where we reference the issue as far as the difficulties in communication with 

trial counsel in terms of getting the direct appeal filed, the notice of appeal 

timely filed.” Id. at 12. The trial court took the matter under advisement, 

then later that day issued an order denying Appellant’s PCRA petition.
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Appellant filed a timely notice of appeal, and both Appellant and the 

PCRA court complied with Pa.R.A.P. 1925. Specifically, Appellant contended 

in his Rule 1925(b) statement that “[Appellant] contends the court erred in its 

denial of the PCRA [p]etition to reinstate his rights on direct appeal.” 

Statement of Matters Complained of pursuant to 1925(b), 7/26/21, at ¶ 9. 

Appellant presents the following question to this Court: “Did the trial court 

err in denying the Appellant relief under the Post-Conviction Relief Act?” 

Appellant’s brief at 7. 

We begin our review with an examination of the governing legal 

authority. The standard of review of an order dismissing a PCRA petition is 

whether that determination is supported by the evidence of record and is free 

of legal error.” Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa.Super. 

2019) (cleaned up). “We grant great deference to the PCRA court’s findings 

that are supported in the record and will not disturb them unless they have 

no support in the certified record.” Commonwealth v. Mojica, 242 A.3d 

949, 953 (Pa.Super. 2020) (cleaned up). Likewise, “a PCRA court's credibility 

determinations are binding upon an appellate court so long as they are 

supported by the record.” Commonwealth v. Robinson, 82 A.3d 998, 1013 

(Pa. 2013). Additionally, “[i]t is an appellant’s burden to persuade us that the 

PCRA court erred and that relief is due.” Commonwealth v. Stansbury, 219 

A.3d 157, 161 (Pa.Super. 2019) (cleaned up).
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It is well-settled that “[a] criminal defendant has the right to effective 

counsel during a plea process as well as during trial.” Commonwealth v. 

Rathfon, 899 A.2d 365, 369 (Pa.Super. 2006) (cleaned up). However, 

following the entry of a guilty plea, “a claim of ineffectiveness may provide 

relief only if the alleged ineffectiveness caused an involuntary or unknowing 

plea.” Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa.Super. 2017). 

In order for Appellant to prevail on a claim of ineffective assistance 

of counsel, he must show, by a preponderance of the evidence, 

ineffective assistance of counsel which, in the circumstances of 

the particular case, so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could have taken 

place. Appellant must demonstrate: (1) the underlying claim is of 

arguable merit; (2) that counsel had no reasonable strategic basis 

for his or her action or inaction; and (3) but for the errors and 

omissions of counsel, there is a reasonable probability that the 

outcome of the proceedings would have been different. The 

petitioner bears the burden of proving all three prongs of the test.

Id. at 1280-81 (cleaned up). 

An exception to this general rule regarding a PCRA petitioner’s burden 

of proof exists when counsel fails to file a requested direct appeal. In such 

instances, a petitioner need only prove that he requested an appeal and 

counsel failed to file it, which constitutes ineffectiveness per se. See, e.g., 

Mojica, supra at 955. A failure of counsel to consult with a defendant about 

filing an appeal, on the other hand, requires a PCRA petitioner to establish 

that counsel had a duty to consult with him and that, but for counsel’s breach 

of that duty, he would have timely appealed. See Commonwealth v. Touw, 

781 A.2d 1250, 1254 (Pa.Super. 2001). 
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With these principles in mind, we turn to Appellant’s argument. 

Appellant’s brief consists mostly of boilerplate case law. The only fact-specific 

argument he offers is as follows:

At sentencing, but for argument there was no evidence or 

witnesses presented by trial counsel. Other than argument, 

nothing further was advanced by the defense. The docket 

indicates post sentence motions were filed and denied without 

hearing.

At the video hearing, Appellant testified regarding his 

understanding of what happened at the preliminary hearing. At 

sentencing the issue was not raised by trial counsel. At the 

evidentiary hearing on the PCRA, Appellant testified with 

specificity and detail that the charge of [c]orrupt [o]rganizations

was to be withdrawn in return for a guilty plea, only if Appellant 

did not go to trial. This recollection is logically consistent. 

Appellant received neither bail or charge reduction in return for 

his waiver.

Appellant being sentenced on [c]orrupt [o]rganizations is a

matter that needs to be developed at the trial level through the 

motion for reconsideration of sentence so that the matter could 

be reviewed on direct appeal. There was never a hearing on the 

post sentence motion which based, on the minimalist motion, is 

not surprising.

The failure to introduce ANY evidence at sentencing is the 

second level of ineffectiveness that needs to be developed. These 

are both matters that need to be developed for an appropriate 

review on direct appeal.

Appellant’s brief at 13-14.

To the extent that Appellant seeks our review of the claim concerning 

the absence of a direct appeal, which is the only issue that was raised in his 

PCRA petition and his Rule 1925(b) statement, we affirm the denial of PCRA 
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relief on the basis of the PCRA court opinion. Specifically, the PCRA court 

explained:

Although a failure to file a requested direct appeal would 

constitute prejudice per se, [Appellant] failed to plead and prove 

that a timely appeal was requested and that plea counsel ignored 

this request. The only information offered by [Appellant] 

regarding the difficulties underlying his request to file a direct 

appeal were vague allegations contained in the PCRA petition and 

PCRA counsel's ambiguous statements offered during the PCRA 

evidentiary hearing. The absence of testimony from both 

[Appellant] and plea counsel with respect to this issue causes 

[Appellant]’s claim to amount to nothing more than a mere 

allegation or bare assertion which is not sufficient to prove that 

plea counsel either was unable to receive or ignored Defendant's 

request to file a direct appeal. 

Accordingly, plea counsel cannot be deemed ineffective on 

these grounds and [Appellant’s] first issue merits no relief.

PCRA Court Opinion, 9/20/21, at 7-8 (cleaned up) 

To the extent that Appellant persists with his unpled claim about the 

supposed preliminary hearing agreement, no relief is due on the alternate 

bases that the claim was waived for failure to include it in Appellant’s Rule 

1925(b) statement and is meritless because the PCRA court found Appellant’s 

evidence to be insufficient and incredible. See Pa.R.A.P. 1925(b)(4)(vii) 

(“Issues not included in the Statement and/or not raised in accordance with 

the provisions of this paragraph (b)(4) are waived.”); PCRA Court Opinion, 

9/20/21, at 8-10 (finding Appellant’s claim that there was an agreement 

incredible, observing that he failed to offer plea counsel’s testimony to 

establish the basis for counsel’s alleged inactions, and citing authority for the 
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proposition that no valid agreement could have existed without court 

approval). 

Finally, to the extent that Appellant is raising new issues in his brief that 

were neither presented to the PCRA court nor included in his Rule 1925(b) 

statement, such as assertions concerning counsel’s performance in connection 

with the sentencing hearing and post-sentence motion, those claims are 

waived and cannot serve as a basis for relief. See Pa.R.A.P. 302(a) (“Issues 

not raised in the lower court are waived and cannot be raised for the first time 

on appeal.”); Pa.R.A.P. 1925(b)(4)(vii). 

For the above reasons, we conclude that Appellant has provided us no 

cause to disturb the order denying Appellant’s PCRA petition.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/13/2022