Com. v. Swaayze, D. ( 2017 )


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  • J-S74027-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                     :
    :
    :
    DEMETRIUS SWAAYZE                          :
    :
    Appellant                    :   No. 2122 EDA 2016
    Appeal from the PCRA Order June 28, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0005856-2013
    BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
    MEMORANDUM BY LAZARUS, J.:                        FILED DECEMBER 12, 2017
    Demetrius Swaayze appeals from the trial court’s order, entered in the
    Court of Common Pleas of Philadelphia County, granting in part and denying
    in part his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.
    §§ 9541-9546. After careful review, we affirm.
    In November 2013, following a non-jury trial, Swaayze was convicted of
    robbery of a motor vehicle, conspiracy, theft by unlawful taking, and receiving
    stolen property (RSP). On January 14, 2014, Swaayze was sentenced to an
    aggregate term of imprisonment of 3-6 years, followed by two years of
    probation.   Neither post-trial motions nor a direct appeal was filed.         On
    September 25, 2014, Swaayze filed a timely pro se PCRA petition claiming
    that trial counsel was ineffective for failing to file a direct appeal. Counsel was
    appointed and filed an amended petition seeking reinstatement of Swaayze’s
    direct appeal rights and the right to file post-trial motions nunc pro tunc. On
    J-S74027-17
    June 13, 2016, the court held an evidentiary hearing on the petition; Swaayze
    participated via video conferencing. Trial counsel and Swaayze testified at the
    hearing; the court ultimately denied Swaayze relief on his ineffectiveness
    claim.1
    Swaayze filed a timely court-ordered Pa.R.A.P. 1925(b) concise
    statement of errors raised on appeal and notice of appeal. He presents the
    following issues for our review:
    (1)    Did the PCRA court err and/or abuse its discretion when it
    denied [Swaayze’s] petition under the PCRA seeking
    reinstatement of his right to pursue a direct appeal nunc pro
    tunc where the evidence at the PCRA hearing, properly
    viewed, demonstrated by a preponderance of the evidence
    that [Swaayze] instructed court-appointed counsel to file a
    post-sentence motion and pursue a direct appeal, but trial
    counsel failed to protect petitioner’s appellate rights by
    failing to file a post-sentence motion in the trial court and a
    timely notice of appeal?
    (2)    Did the PCRA court err and/or abuse its discretion when it
    denied [Swaayze’s] petition under the PCRA seeking
    reinstatement of his right to pursue a post-sentence motion
    nunc pro tunc where the evidence at the PCRA hearing,
    properly viewed, demonstrated by a preponderance of the
    evidence that [Swaayze] instructed court-appointed counsel
    to file a post-sentence motion and pursue a direct appeal,
    but trial counsel failed to protect petitioner’s appellate rights
    by failing to file a post-sentence motion in the trial court,
    and trial counsel had no strategic reason for failing to file
    the requested motion, and there is no reasonable possibility
    ____________________________________________
    1 The court did grant relief, in part, amending Swaayze’s sentence to reflect
    that count 3 (theft by unlawful taking) and count 4 (RSP) had no further
    penalties.
    -2-
    J-S74027-17
    that the motion would have resulted in a reduction of the
    sentence imposed?2
    To succeed on a claim that counsel was ineffective for failing to file a
    direct appeal, a defendant must plead and present evidence that he in fact
    requested counsel to pursue a direct appeal and that counsel failed to do so.
    Commonwealth v. Dockins, 
    471 A.2d 851
     (Pa. Super. 1984).                     In
    Commonwealth v. Touw, 
    781 A.2d 1250
     (Pa. Super. 2001), our Court was
    guided by the United States Supreme Court’s decision, Roe v. Flores-
    Ortega, 
    528 U.S. 470
     (2000), which answered the question of whether
    “counsel [is] deficient for not filing a notice of appeal when the defendant has
    not clearly conveyed his wishes [regarding an appeal] one way or the other[.]”
    
    Id. at 477
    . The Flores-Ortega Court held that:
    [Counsel] has a constitutionally-imposed duty to consult with his
    client about an appeal when there is reason to think that either
    (1) a rational defendant would want to appeal[] or (2) that this
    particular defendant reasonably demonstrated to counsel that he
    was interested in appealing.
    
    Id. at 480
    .     See also Commonwealth v. Markowitz, 
    32 A.3d 706
     (Pa.
    Super. 2011).
    At the PCRA hearing, Swaayze testified that he told his attorney in the
    courtroom after he was sentenced that he was “confused and [did]n’t agree
    ____________________________________________
    2 To prove a claim of ineffectiveness, a defendant must establish that: (1) the
    underlying claim is of arguable merit; (2) the particular course of conduct
    pursued by counsel did not have some reasonable basis designed to effectuate
    his client’s interests; and (3) but for counsel’s ineffectiveness, there is a
    reasonable probability that the outcome of the proceedings would have been
    different. Commonwealth v. Luster, 
    71 A.3d 1029
    , 1039 (Pa. Super. 2013).
    -3-
    J-S74027-17
    and . . . would like to file a direct appeal immediately and she said okay, she
    will see me . . . soon.” N.T. PCRA Hearing, 6/28/16, at 7-8. He further stated
    that once he returned to county prison he sent counsel a letter indicating that
    he would like to file an appeal. 
    Id.
     When he was finally transferred to state
    prison (SCI-Albion), Swaayze testified that he called his attorney and spoke
    to her secretary, telling her he was trying to get in touch with counsel.
    Swaayze never received a return call. Id. at 13. Finally, Swaayze testified
    he wrote his attorney a second letter regarding his desire to file an appeal
    after the unsuccessful phone call. Id. at 14.
    Counsel also testified at the PCRA hearing; she testified that she “did
    not recall any discussions about filing a direct appeal . . . [and didn’t] recall
    [them] talking about filing an appeal after sentencing.”         Id. at 19-20.
    However, counsel did remember talking to Swaayze about how the trial went3
    and, that in the winter (after the 30-day appeal period had expired), she
    received a letter from Swaayze asking “how the appeal was going.”            Id.
    Counsel testified that she “believe[s] that [she] talked [to Swaayze] about not
    thinking that an appeal would be fruitful.” Id. at 22. Finally, counsel stated
    that she never received a message from her secretary that Swaayze had called
    her office to speak with her, id. at 23, and she had nothing in her file, other
    ____________________________________________
    3 In particular, counsel noted that the trial hinged on the credibility and
    testimony of the complainant and that such issues went to the weight of the
    evidence, which is a difficult matter to win on appeal. N.T. PCRA Hearing,
    6/28/16, at 25-26.
    -4-
    J-S74027-17
    than the letter from the winter, indicating Swaayze wanted to appeal. Id. at
    26-27.
    Instantly, the trial court denied Swaayze relief on his ineffectiveness
    claim, stating the following at the PCRA hearing:
    Based upon the information and evidence provided, I think there
    is sufficient information that based upon [trial counsel’s]
    testimony and record keeping that she would have filed an appeal
    if it had been properly discussed.
    Mr. Swaayze, just because you talk about filing an appeal, doesn’t
    necessarily mean that your counsel has been fully informed or
    authorized to do so.
    N.T. PCRA Hearing, 6/28/16, at 34.
    Here, the PCRA court chose to credit counsel’s testimony and discredit
    Swaayze’s,    a   task   which   is   reserved   for   the   court   as   fact-finder.
    Commonwealth v. Johnson, 
    668 A.2d 97
     (Pa. 1995). We agree with the
    trial court’s conclusion that counsel was not ineffective for failing to file a direct
    appeal where counsel testified that: (1) she discussed the possibility of an
    appeal with Swaayze, but told him that it would fruitless; (2) Swaayze never
    asked her to file an appeal; and (3) counsel’s records did not contain any
    communication from Swaayze, during the relevant appeal period, indicating
    his desire to have her file an appeal.         Flores-Ortega, supra.         Because
    Swaayze failed to present evidence that he in fact requested counsel to pursue
    a direct appeal and that counsel failed to do so, Dockins, supra; Touw,
    
    supra,
     he has not established that his underlying claim has arguable merit.
    Luster, 
    supra.
    Order affirmed.
    -5-
    J-S74027-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/12/2017
    -6-
    

Document Info

Docket Number: 2122 EDA 2016

Filed Date: 12/12/2017

Precedential Status: Precedential

Modified Date: 12/12/2017