J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DONEZ S. WEAVER,

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 11 MDA 2018

Appeal from the PCRA Order December 18, 2017 in the Court of Common Pleas of Berks County, Criminal Division at No(s): CP

- 06

- CR

- 0001794

- 2013

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 15, 2018

Donez S. Weaver (“ Weaver”) appeals from the Order denying his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541

- 9546. We affirm.

In August 2015, a jury convicted Weaver of two counts each of

po ssession with intent to deliver a controlled substance and possession of a

controlled substance. 1 The matter proceeded to a sentencing hearing on

September 17, 2015, wherein Weaver was represented by retained counsel,

Elizabeth Ebner, Esquire (hereinafter “trial counsel”). The trial court imposed

an aggregate term of 63 to 126 months in prison. T rial counsel then stated

to the trial court that she had advised Weaver of his post

- sentence and appeal

_________________ __________ ______ ____ _______

1 See 35 P.S. § 780

- 113(a)(30), (16).J

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rights , and that Weaver had signed a written Notice detailing said rights.

Notably to the instant appeal, trial counsel did not file a direct appeal.

On March 4, 2016, Weaver

, pro se , filed a timely PCRA Petition , in

response to which the PCRA court appointed him PCRA counsel. PCRA counse l

thereafter filed an Amended PCRA Petition, asserting that trial counsel was

ineffective for failing to file a requested direct appeal. The Commonwealth

filed an Answer to the Amended Petition

, after which the PCRA court scheduled

an evidentiary hearing.

At the August 8, 2017 evidentiary hearing (hereinafter “the PCRA

hearing”)

, Weaver testified that he had instructed trial counsel that he wanted

to file a direct appeal immediately after the jury rendered its verdict. In

contrast, trial counsel testifie d that Weaver never instructed her to file an

appeal. The PCRA court summarized the relevant testimony at the PCRA

hearing as follows:

According to [Weaver ’s ] testi mony at the ... PCRA hearing, he did not have any discussions about an appeal with [trial counsel] before, during, or after the sentencing hearing. [Trial counsel] testified that she had an appeal discussion with [Weaver] at the sentencing hearing. [Trial counsel] reviewed the written [N] otice of post

- sentence rights with [Weaver ] , which incl uded information regarding the time limits for filing post

- sentence motions and an appeal. [Weaver ] and [trial] cou nsel both signed this written [N] otice. Upon conclusion of the sentencing hearing, [ trial counsel asserted, Weaver ] asked [trial] counsel w hat she thought about an appeal. [Trial c]ounsel shared her opinion that she did not think an appeal would be successful. [Weaver ] told [trial] counsel

that he would let her know if he wanted to appeal. Had [Weaver ]

informed [trial] counsel that he want ed to appeal, [trial counsel

maintained , she] would have filed the appeal to preserve his rights despite being owed counsel fees. [Trial c]ounsel heard nothingJ

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from [Weaver ] , and her file[] contains no notes, correspondence, or other indication that [Weav er ] wanted to appeal.

PCRA Court Memorandum and Order, 12/18/17, at 1

- 2.

On December 18, 2017, the PCRA court denied Weaver’s PCRA Petition

.

W eaver then filed a timely Notice of Appeal.

Weaver now presents the following question for our review:

Whether the PCRA court erred in dismissing the Amended PCRA Petition when there was an unjustified failure by trial counsel to properly consult with [Weaver] about wheth er to file a direct appeal and, thereafter[,] failing to file the appeal, which denied [Weaver ] the effective assistance of counsel guaranteed by the Sixth Amendment to the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution[,] as well as the right to direct appeal under Article V, Section 9[,] and constituted prejudice for the purposes of 42 Pa.C.S.A. § 9543(a)(2)(ii)?

Brief for Appellant at 2 (capitalization omitted)

.

When reviewing an order denying a PCRA petition , we examine whether

the determination of the PCRA court is supported by the record and free of

legal error. Commonwealth v. Miller , 102 A.3d 988, 992 (Pa. Super. 2014).

Moreover, it is well established that a “PCRA court’s credibility determinations,

when supported by the record, are binding on this Court[.]” Commonwealth

v. Mitchell , 105 A.3d 1257, 126 5 (Pa. 2014) (citation omitted)

.

To be entitled to relief for ineffective assistance of counsel, a PCRA

petitioner must establish that: (1) the underlying claim is of arguable merit;

(2) there was no reasonable basis for counsel’ s action or failure to act; and

(3) but for counsel’s error , there is a “ reasonable probability the result of the

proceeding would have been differe nt.” Commonwealth v. Treiber

, 121J

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A.3d 435, 444 (Pa. 2015). Failure to satisfy any of the three prongs is fatal

to a claim of ineffective assistance of counsel. Commonwealth v. Spotz , 84

A.3d 294, 311 (Pa. 2014). Counsel is presumed to be effective, and it is solely

the petitioner’ s burden to prove ineffectiveness. See id.

Regarding an ineffectiveness claim based on counsel’s failure to file a

direct appeal, we observe that “Article V, Section 9 of the Pennsylvania

Constitution guarantees a direct appeal as of right.” Commonwealth v.

Lantzy

, 736 A.2d 564, 571 (Pa. 1999). “ [W]hen 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. Markowitz

,

32 A.3 d 706, 714 (Pa. Super. 2011). A PCRA petitioner “ has the bur den of

proving that he requested a direct appeal and that his counsel heard but

ignored or rejected the request.” Commonwealth v. Maynard

, 900 A.2d

395, 398 (Pa. Super. 2006); see also Commonwealth v. Harmon , 738 A.2d

1023, 1024 (Pa. Super. 1999) (stating that “[m]ere allegations will not

suffice.”)

.

However, e ven where a defendant does not ask his or her attorney to

file a direct appeal, counsel may still be ineffective if counsel does not consult

with the client about his or her appellate rights. Markowitz

, 32 A.3d at

714 (citing Roe v. Flores

- Ortega

, 528 U.S. 470

, 480 (2000)) ; see also

Commonwealth v. Green , 168 A.3d 173, 177 (Pa. Super. 2017) (stating

that “the question is not simply whether consultation occurred, it is whether

that consultation was adequate within the meaning of that term as expressedJ

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in Flores

- Ortega [

, ]” which “ makes plain that the consul tation must, at

minimum , encompass advice regarding an actual appeal, not simply how to

preserve issues for a theoretical appeal.” ).

Here, Weaver argues that trial counsel was ineffective for failing to (1)

file an appeal in response to Weaver’s request; and (2) adequately consult

with Weaver concerning an appeal, in accordance with Flores

- Ortega and its

progeny. See Brief for Appellant at 5

- 14. Weaver contends that pursuant to

case law , there is an “onus [placed] on [criminal] defense counsel to do more

than have a perfunctory discussion with a defendant about his appeal

righ ts[,]” and PCRA relief will be granted “when counsel fell short of an

adequate ... consultation with a defendant about whether he wants to file an

appeal.” Id. at 9

- 10 (citi ng, inter alia

, Flores

- Ortega ). In arguing that trial

counsel’s consultation was insufficient, Weaver contends that trial counsel’s

“brief discussion with [Weaver] about whether to file an appeal took place in

the holding area of the courtroom after sentencing, but she never discusse d

the advantages or disadvantages of filing an appeal with [Weaver].” Id. at

12. Additionally, Weaver complains that trial counsel

certainly knew that [Weaver’s] appeal rights would expire if no action was taken, yet she tried to lay the responsibility on [Weaver] by saying that she told him she would wait to hear from him[, i.e. , regarding whether he wanted to file an appeal,] rather than making an affirmative effort to consult with him about filing an appeal. [Trial counsel] did not even contact [Weav er] after trial or sentencing.

Id.J

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In rejecting Weaver’s claim of trial counsel’s ineffectiveness, the PCRA

court reasoned as follows:

[Weaver] inconsistently testified that he told [trial] counsel [,] after the guilty verdict [,] that he wanted to appeal and also, incredibly, that he did not have any appeal

- related discussions with [trial] counsel before, during, or after the sentencing hearing. [Trial c]ounsel credibly testified that she discussed the merits of an appeal with [Weaver] after he was sente nced. [Trial c]ounsel’s

testi mony is supported by the record[] containing a written [N] otice to [Weaver] that set forth his right to appeal, which [N] otice bears his signature, and which [N] otice he acknowledged receiving on the record in open court.

Having consulted with [Weaver] about the merits of an appeal [,] and having left that consultation with [Weaver’s] comment that he would contact [trial counsel] about an appeal if he wanted one, [trial] counsel met her duty as an advocate and was justified in waiting for express direction from [Weaver] if he wished to appeal. [Weaver] did not meet his burden of proving that he gave [trial counsel] an express direction to file an appeal

after their September 17, 2015 (day of sentencing) discussion.

PCRA Cou rt Memorandum and Order, 12/18/17, at 3.

T he PCRA court chose to find credible the testimony presented by trial

counsel , and, since t he certified record supports the PCRA court’s findings

, we

are bound by its credibility determinations. See Mitchell

, supra ; see also

Green , 168 A.3d at 177 (stating that “we are bound by the credibility

determination [of the PCRA court] that a conversation between [defense]

counsel and [a]ppellant regarding appellate rights occurred.”).

Moreover, contrary to Weaver’s claim

, the record reveals that trial

counsel sufficiently consulted with Weaver concerning an appeal, unlike the

facts in the cases upon which Weaver relies. Cf. Green , 168 A.3d at 177

(holding that defense counsel was ineffective where his consultation w ithJ

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defendant regarding his appeal rights and issue preservation was inadequate) ;

Commonwealth v. Rivera , 154 A.3d 370, 378 (Pa. Super. 2017) ( en banc )

( stating that “ plea counsel was ineffective for failing to consult with Rivera

regarding whether he wished to appeal the non

- frivolous issue concerning the

legality of his negotiated sentence”) ; Commonwealth v. Donaghy , 33 A.3d

12, 16 (Pa. Super. 2011) (holding that defense counsel was ineffective where

defendant had sent counsel a letter that “sufficiently demonstrated a desire

to appeal, such that counsel should have made a reasonable effort to discover

[defendant’s ] wishes [,] as required under Flores

- Ortega

. ”) (quotation marks

omitted).

In the instant case , trial counsel testified that , af ter she had advised

Weaver of his appeal rights via the written rights Notice, she expressly

answered Weaver’s question concerning the potential for success on appeal.

See N.T., 8/8/17

, at 17 (wherein trial counsel testified (which testimony the

PCRA court found credible) that : (1) she replied to Weaver that there was

little chance of a successful appeal, particularly in light of the fact that a

defense witness had presented trial testimony that was harmful to the

defense ; a nd (2) Weaver had expressed his agreement with this assessment

of the impact of the defense witness’s testimony )

. Moreover, according to

trial counsel’s testimony

, she told Weaver to contact her if he desired her to

file an appeal, but he never contacted her. Id. Therefore

, the record reflects

that trial c ounsel sufficiently consulted with Weaver about his appellate rights

and the merits of an appeal

. See M arkowitz

, supra ; Green

, supra

.J

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Accordingly, we conclude that Weaver’s claim that trial counsel was

ineffective for failing to file a requested direct appeal lacks merit. T he P CRA

court did not err in denying Weaver’s first PCRA Petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 0 6/15 /201 8