Com. v. Bey, J. ( 2020 )

J-S44007-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEREMIAH HADI BEY :
:
Appellant : No. 587 MDA 2020
Appeal from the PCRA Order Entered March 5, 2020
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000135-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEREMIAH HADI BEY :
:
Appellant : No. 588 MDA 2020
Appeal from the PCRA Order Entered March 5, 2020
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000129-2018
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 18, 2020
Appellant, Jeremiah Hadi Bey, appeals from the post-conviction court’s
order denying his timely-filed petition under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant alleges that his plea counsel was
ineffective for not filing post-sentence motions or a direct appeal on his behalf.
After careful review, we affirm.
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The facts of Appellant’s underlying convictions are not pertinent to his
present appeal. The PCRA court summarized the procedural history of his
case, as follows:
On May 17, 2018, [in two separate, but consolidated cases,
Appellant] pled guilty to Persons Not to Possess a Firearm1 and
Escape,2 and [he] pled no contest to Possession of a Controlled
Substance with the Intent to Deliver (PWID).3 [Appellant] was
sentenced th[at] same day to fifty-four … to one-hundred-eight
months[’ incarceration] for Persons Not to Possess a Firearm and
one year to two years[’ incarceration] on both counts of Escape
and PWID. The sentences for Escape and PWID were ordered to
run concurrent to [Appellant’s] sentence for Persons Not to
Possess a Firearm. No subsequent post-sentence motions or
appeals were filed. Therefore, [Appellant’s] sentence became
final on June 17, 2018. On April 26, 2019, [Appellant] filed a
timely[,] pro se … []PCRA[] petition. Helen Stolinas, Esq. was
appointed to represent [Appellant] on May 1, 2019. [Appellant],
through counsel, filed an amended PCRA petition on September
16, 2019[,] and a conference was held on September 24, 2019.
An evidentiary hearing was held on January 10, 2020.
1 18 Pa.C.S. § 6105(a)(1).
2 18 Pa.C.S. § 5121(a).
3 35 P.S. § 780-113(a)(30).
PCRA Court Opinion (PCO), 3/5/20, at 1.
On March 5, 2020, the court filed an order and opinion denying
Appellant’s petition. He then filed two, timely notices of appeal at each docket
number. See Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018)
(holding that “the proper practice under [Pa.R.A.P.] 341(a) is to file separate
appeals from an order that resolves issues arising on more than one docket.
The failure to do so requires the appellate court to quash the appeal”).1
____________________________________________
1This Court sua sponte consolidated Appellant’s appeals by per curiam order
entered May 5, 2020.
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Although not ordered to do so by the PCRA court, Appellant filed a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal on May 7, 2020.
The PCRA court filed a Rule 1925(a) statement on May 13, 2020, indicating
that it was relying on the rationale set forth in its March 5, 2020 opinion
accompanying its order denying Appellant’s petition.
In Appellant’s brief, he presents the following two issues for our review:
1. Whether [c]ounsel was ineffective in failing to file post[-]
sentence motions and [an] appeal?
2. Whether the [c]ourt erred in denying Appellant’s PCRA petition
seeking restoration of [his] post-sentence rights?
Appellant’s Brief at 6.
Appellant’s issues are related and, therefore, we will address them
together. We begin by recognizing that:
In reviewing the propriety of the PCRA court’s order
dismissing a petition for post-conviction relief, we are limited to
determining whether the court’s findings are supported by the
record and whether the order in question is free of legal
error. Commonwealth v. Halley, … 870 A.2d 795, 799, n.2
([Pa.] 2005). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified
record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.
Super. 2001).
We note the following relevant legal principles. The law
presumes that counsel rendered effective assistance.
Commonwealth v. Brooks, … 839 A.2d 245, 248 ([Pa.] 2003).
In order to prevail on an ineffectiveness claim, therefore,
Appellant must demonstrate that: (1) the underlying claim is of
arguable merit; (2) counsel had no reasonable basis for the course
of conduct in question; and (3) he suffered prejudice as a result
of counsel’s ineffectiveness, i.e., there is a reasonable probability
that but for counsel’s act or omission in question, the outcome of
the proceeding would have been different.
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Generally, if counsel ignores a defendant’s request to file a
direct appeal, the defendant is entitled to have his appellate rights
restored. Commonwealth v. Lantzy, … 736 A.2d 564 ([Pa.]
1999). In Lantzy, our Supreme Court held that an unjustified
failure to file a direct appeal upon request is prejudice per se, and
if the remaining requirements of the PCRA are satisfied, a
defendant does not have to demonstrate his innocence or the
merits of the issue he would have pursued on appeal to be entitled
to relief. However, such relief is appropriate only where the
petitioner pleads and proves that a timely appeal was in fact
requested and that counsel ignored that request.
Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa. Super.
1999). A mere allegation will not suffice to prove that counsel
ignored a petitioner’s request to file an appeal. Id.
Commonwealth v. Spencer, 892 A.2d 840, 841–42 (Pa. Super. 2006).
Here, the PCRA court found incredible Appellant’s assertion that he
asked his plea counsel, Dance Drier, Esq., to file a post-sentence motion
and/or direct appeal on his behalf. The court explained:
[Appellant’s] allegations in regards to his appeal have
changed throughout the PCRA process. In [Appellant’s] original
PCRA petition he stated[:] “[C]ounsel advised me to go through
the counsler [sic] at the jail[,] which was false [and] ultimately
made me untimely for fileing [sic] my direct appeal.” [Appellant’s]
Motion for Post Conviction Collateral Relief[,] 3/26/19, at 3.
Further in the petition, [Appellant] reiterates:
Counsel was ineffective due to before the deadline of
[Appellant’s] direct appeal[, Appellant] spoke with counsel
[and] asked counsel what did he have too [sic] do to file an
appeal of his sentence. Counsel advised [Appellant] that he
had to go through the co[u]nsler, at the jail where
[Appellant] was incarc[e]rated at! Which was false [and] in
fac[t] a lie … [and] that ultimately made [Appellant]
untimely for his direct appeal.
Id. at 18.
In [Appellant’s] Amended [p]etition[], he similarly argued
that “[i]mmediately following sentencing, [Appellant] informed …
[A]ttorney [Drier] that he wanted to appeal his sentence, and that
he wanted to argue for a lesser sentence. Rather than meeting
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with [Appellant], his attorney advised him to inform his counselor
at the jail regarding the request.” [Appellant’s] Amended Post
Conviction Relief Petition[,] 9/16/19, at 3. Then[,] abruptly at the
time of the evidentiary hearing[,] the factual circumstances
changed. [Appellant] testified [that on] the day after his
sentenc[ing,] he told [Attorney] Drier he wanted to file an appeal
and three days later he wrote [Attorney] Drier a letter stating:
“[Y]ou told me in the courtroom after I was sentenced that you
were going[] to file a direct appeal immediate [sic][”];[] “I’m
sending you this letter as a reminder to file it before the
deadline[”];[] and “please make sure you file my paperwork
before the deadline!” [Appellant’s] Exhibit #1.
This [c]ourt finds [Appellant’s] testimony was not credible.
As shown above, [Appellant’s] averments made in his original
PCRA petition and Amended Petition do not match his testimony.
Additionally, [Appellant’s] Exhibit #1 does not match either [of]
his petitions or [Appellant’s] own testimony. The letter admitted
as [Appellant’s] Exhibit #1 cannot be verified [as to] when it was
actually created or if it was actually sent. There is no timestamp,
no proof of postage accompanying it, and no testimony to verify
it, other than [Appellant’s] self-serving testimony. [Appellant]
expects this [c]ourt to simpl[y] rely on the first line of the letter
which states: “This is Jeremiah Bey & today is May 20, 2018 - I
was sentenced on May 17, 2018.” [Appellant’s] Exhibit #1. Yet,
[Appellant] ignores the glaring red flag that the letter states
[Attorney] Drier told him in the courtroom[,] after the
plea/sentencing[,] that he would file an appeal on [Appellant’s]
behalf[, but Attorney] Drier was not in the courtroom and did not
handle [Appellant’s] plea and sentencing[;] another attorney in
[Attorney] Drier’s office did. The combination of an unverified
letter and [Appellant’s] self-serving and inconsistent averments
throughout the process does not satisfy [Appellant’s] burden to
demonstrate by a preponderance of the evidence that [Attorney]
Drier unjustly failed [Appellant] by not filing a requested direct
appeal.4
4 [Attorney] Drier was not called to testify by [Appellant]
and, as the burden rests with [Appellant], this [c]ourt could
only consider [Appellant’s] filings, exhibits, and his own
inconsistent testimony.
PCO at 5-6.
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The record supports the PCRA court’s conclusion that Appellant was
inconsistent in explaining how and when he requested that Attorney Drier file
post-sentence motions or a direct appeal on his behalf. In his pro se and
amended petitions, he claimed that he told Attorney Drier he wanted to appeal
and that, in response, counsel informed Appellant he must consult with prison
authorities about an appeal. Then, in his testimony at the PCRA hearing, he
did not mention this ostensible misinformation by Attorney Drier; instead,
Appellant testified that one day after his plea/sentencing hearing, he called
Attorney Drier and told him he wanted to file an appeal. N.T. PCRA Hearing,
1/10/20, at 8. Appellant further claimed that he wrote Attorney Drier a letter
reminding counsel to file the appeal, however there was no proof of when the
letter was drafted or sent to counsel. Id. at 9. Furthermore, in the letter,
Appellant claimed he told Attorney Drier to file an appeal in person just after
the plea/sentencing hearing concluded. Appellant did not call Attorney Drier
to the stand at the hearing to provide his recollection of what, if anything, he
and Appellant discussed after the plea/sentencing hearing.
Ultimately, these inconsistencies led the PCRA court to find incredible
Appellant’s claim that he asked Attorney Drier to file a post-sentence motion
and/or an appeal on Appellant’s behalf. Because the record supports that
decision, we are bound to affirm the court’s order dismissing Appellant’s
petition. See Commonwealth v. Abu–Jamal, 720 A.2d 79, 99 (Pa. 1998)
(“Just as with any other credibility determination, where the record supports
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the PCRA court’s credibility determinations, those determinations are binding
on this [C]ourt.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2020
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