Com. v. Hargrove, M. ( 2016 )

J-S51032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MUHAMMAD HARGROVE,
Appellant No. 1065 EDA 2015
Appeal from the PCRA Order April 10, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0012747-2010
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 05, 2016
Appellant, Muhammad Hargrove, appeals from the order dismissing his
counseled first petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court aptly summarized the relevant background of this case
as follows:
[Appellant] was found guilty by a jury on October 12, 2011
of criminal trespass and conspiracy; the object of the conspiracy
was to commit aggravated assault. [Appellant] was sentenced
to a period of two and [one-]half to five years’ incarceration to
be followed by four years of probation. He did not file a direct
appeal.
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*
Retired Senior Judge assigned to the Superior Court.
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[Appellant] filed the instant [timely] PCRA petition, raising
the sole claim that his attorney, Joseph Santaguida, Esq. 1, was
ineffective for failing to file a direct appeal. Following a hearing,
this court dismissed [Appellant’s] petition, and this [timely]
appeal followed.
(PCRA Court Opinion, 12/23/15, at 1) (some capitalization omitted). The
PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). It filed an opinion on
December 23, 2015. See Pa.R.A.P. 1925(a).
Appellant raises one issue for our review:
Did the [PCRA] court err in not reinstating [Appellant’s] right to
file an appeal nunc pro tunc from the judgment of sentence
imposed in this matter when [Appellant] showed that he
requested counsel to file an appeal but instead of filing the
appeal counsel told [Appellant’s] mother that [Appellant] would
receive the [maximum sentence] if he appealed?
(Appellant’s Brief, at 2).
Our review of a PCRA court’s decision is limited to
examining whether the PCRA court’s findings of fact are
supported by the record, and whether its conclusions of law are
free from legal error. We view the findings of the PCRA court
and the evidence of record in a light most favorable to the
prevailing party. . . . The PCRA court’s credibility
determinations, when supported by the record, are binding on
this Court; however, we apply a de novo standard of review to
the PCRA court’s legal conclusions. . . .
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citations and
quotation marks omitted).
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1
[Appellant] was represented at trial by David Belmont, Esq., and by
Santaguida at sentencing; both parties agreed it was Santaguida to whom a
request to file a direct appeal would have been properly directed.
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In his issue on appeal, Appellant argues the PCRA court erred in failing
to reinstate his direct appeal rights where counsel failed to file a requested
direct appeal. (See Appellant’s Brief, at 6-7).2 Appellant claims that
following sentencing, his mother asked counsel to file an appeal, but that
counsel ignored this request and erroneously advised her regarding the
potential consequences of an appeal. (See id. at 6). This issue does not
merit relief.
In order to obtain relief under the PCRA premised upon a claim that
counsel was ineffective, a petitioner must establish by a preponderance of
the evidence that counsel’s ineffectiveness “so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). When considering such a
claim, courts presume that counsel was effective, and place upon the
appellant the burden of proving otherwise. See Commonwealth v. Payne,
794 A.2d 902, 906 (Pa. Super. 2002), appeal denied, 808 A.2d 571 (Pa.
2002). Generally, “[t]o succeed on a claim that counsel was ineffective, [an
a]ppellant must demonstrate that: (1) the claim is of arguable merit; (2)
counsel had no reasonable strategic basis for his or her action or inaction;
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2
Appellant’s one and one-half-page argument on this issue is
underdeveloped. Although his sole claim is premised on ineffective
assistance of counsel, he fails to state this specifically, nor does he provide
this Court with any citations to the certified record. See Pa.R.A.P. 2119(a)-
(c). Because we are able to discern the crux of his argument, we decline to
find waiver, and will address it on the merits. See Pa.R.A.P. 2101.
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and (3) counsel’s ineffectiveness prejudiced him.” Commonwealth v.
Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (citation omitted).
Our Supreme Court has held that counsel’s unexplained
failure to file a requested direct appeal constitutes ineffective
assistance per se, such that the petitioner is entitled to
reinstatement of direct appeal rights nunc pro tunc without
establishing prejudice. However, before a court will find
ineffectiveness of counsel for failing to file a direct appeal, the
petitioner must prove that he requested a direct appeal and the
counsel disregarded the request.
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011), appeal
denied, 30 A.3d 487 (Pa. 2011) (citations omitted).
Here, the PCRA court determined as follows:
. . . [Appellant’s] own evidence at the PCRA evidentiary
hearing established that no such request was made of
Santaguida. [Appellant’s] mother, Arleatha Hargrove, testified
that at some point in the weeks following the sentencing, she
called Santaguida’s office to discuss an appeal. Santaguida’s
normal practice in such situations is to discuss the benefits and
drawbacks, both financial and legal, of the filing of an appeal.
Arleatha Hargrove testified that Santaguida did just this,
and that she told him that she would “talk to her sons.” (N.T.
PCRA Hearing, 2/20/15, at 17).3 She took no further action and
did not call Santaguida again. (See id.). No other witnesses
testified that they had any contact with Santaguida or that they
called Santaguida’s office to request that a direct appeal be filed.
The record is therefore clear that [Appellant], either on his
own or through his family, did not request that his attorney file a
direct appeal. Without such request, [Appellant] has failed to
meet his burden under the PCRA and is not entitled to relief.
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3
[Appellant] was tried as co-defendant with his brother, Doron Hargrove.
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(PCRA Ct. Op., at 2) (record citation formatting provided).
Upon review, viewing the evidence of record in a light most favorable
to the Commonwealth as the prevailing party, we agree with the PCRA court
that Appellant has not met his burden of establishing ineffective assistance
of counsel with respect to his direct appeal, and we conclude that he is not
entitled to relief. See Mason, supra at 617; Ousley, supra at 1244.
Accordingly, we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2016
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