Com. v. Peroza-Benitez, J. ( 2022 )

J-S08041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE PEROZA-BENITEZ :
:
Appellant : No. 1146 MDA 2021
Appeal from the PCRA Order Entered August 19, 2021
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0005608-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE PEROZA-BENITEZ :
:
Appellant : No. 1147 MDA 2021
Appeal from the PCRA Order Entered August 19, 2021
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000994-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE PEROZA-BENITEZ :
:
Appellant : No. 1148 MDA 2021
Appeal from the PCRA Order Entered August 19, 2021
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000995-2016
J-S08041-22
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: APRIL 12, 2022
Juan Peroza-Benitez (Appellant) appeals from the order entered in the
Court of Common Pleas of Berks County, denying his petition for collateral
relief filed under the Post Conviction Relief Act (PCRA).1 Appellant seeks relief
from the judgment of sentence entered after he pleaded guilty to gun and
drug charges. Appellant contends the PCRA court erred in finding that plea
counsel was not ineffective for not filing a direct appeal. We affirm.
In late June and early July of 2015, Appellant sold heroin to an
undercover police officer. On October 8, 2015, police executed a search
warrant of his residence and discovered heroin and a firearm. Appellant was
charged at three dockets. On September 1, 2016, Appellant entered
negotiated guilty pleas to persons not to possess firearms and three counts of
possession with intent to deliver a controlled substance.2 In his oral plea
colloquy, Appellant acknowledged he was waiving his right to appeal all
defects and defenses save for the court’s jurisdiction, sentence legality, and
the validity of his guilty plea. Appellant was sentenced to the agreed-upon
term of five to ten years’ incarceration. Assistant Public Defender Holly
____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. § 6105(a)(1); 35 P.S. § 780-113(a)(30).
-2-
J-S08041-22
Feeney, Esquire (Plea Counsel), represented Appellant at the plea hearing.
Appellant did not file a post-sentence motion or a direct appeal.
The PCRA court summarized the ensuing procedural history:
On July 10, 2017 [Appellant] filed a pro se [PCRA petition] in
all three dockets. [The PCRA court ultimately appointed] Michael
D. Dautrich, Esquire . . . to represent [Appellant] on July 30, 2018.
On November 12, 2019, Attorney Dautrich filed his
[Turner/Finley3] Petition for Leave of Court to Withdraw as
Counsel and his supporting brief. On February 12, 2020, this
Court issued its Order and Notice of Intent to Dismiss and granted
Attorney Dautrich’s Petition to Withdraw. [Appellant] filed [a]
response[.] On May 6, 2020, this Court entered an order
dismissing [Appellant’s] Motion.
On May 20, 2020, [Appellant] filed a Notice of Appeal to the
Superior Court. [Appellant] filed a [Pa.R.A.P. 1925(b)] concise
statement alleging, inter alia, that he asked [Plea Counsel] to file
a direct appeal on his behalf but she failed to do so.
On July 28, 2020, [the PCRA court] filed its Memorandum
Opinion requesting that [Appellant’s] PCRA matters be remanded
for an evidentiary hearing to determine whether he was deprived
of his constitutional right to a direct appeal. On February 24,
2021, the Superior Court vacated [the PCRA court’s] order
granting the Petition to Withdraw and dismissing [Appellant’s]
Motion.[4] The cases were remanded to [the PCRA court] with
instructions to appoint new counsel for [Appellant] and schedule
an evidentiary hearing limited to the issue of whether [Plea
Counsel] disregarded [Appellant’s] request to file a direct appeal.
PCRA Ct. Op., 10/25/21, at 1-2.
____________________________________________
3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4 Commonwealth v. Peroza-Benitez, 783 MDA 2020 (unpub.memo.) (Pa.
Super. Feb. 24. 2021).
-3-
J-S08041-22
The PCRA court appointed Osmer Deming, Esquire, to represent
Appellant and conducted an evidentiary hearing on May 27, 2021. Appellant
testified he told Plea Counsel he wanted to appeal on the day of sentencing,
after the sentence was imposed and as a sheriff escorted him out of the
courtroom. N.T. PCRA H’rg, 5/27/21, at 5-6. Appellant stated Plea Counsel
responded that his appeal would have no merit and she would not file it. Id.
at 6. Appellant confirmed that he did not call Plea Counsel to request she file
an appeal. Id. at 8. Appellant testified that his only correspondence with Plea
Counsel was via letters he wrote to her some time after the sentencing
hearing, seeking discovery. Id. at 7. He could not recall whether his letters
requested her to file a direct appeal. Id.
Plea Counsel testified that she received Appellant’s letters in December
of 2016, months after the sentencing hearing, and they only requested
discovery materials. N.T., 5/27/21, at 13. She did not remember the
exchange Appellant claimed had occurred as he was escorted from the
courtroom, nor could she recall “having [any] communication with [Appellant]
regarding the word appeal” after sentencing. Id. at 14. Plea Counsel stated
that while she “might remember if” Appellant requested an appeal, she could
not “say that it absolutely didn’t happen . . . .” Id. She also stated “if
[Appellant] wanted to appeal, yelling at me on the way out of the courtroom
is probably not the best way to do that.” Id. at 16. Plea Counsel explained
that if she had heard Appellant’s alleged request for an appeal, she would
-4-
J-S08041-22
have first filed a post-sentence motion and met with Appellant. Id. at 19.
She stated that she did not take those steps because she did not hear
Appellant’s alleged request. Id. She further confirmed that nothing in her
file indicated that Appellant “requested [she] file a direct appeal or post-
sentence motion.” Id. at 17.
Following the evidentiary hearing, the PCRA court dismissed Appellant’s
PCRA petition on August 19, 2021. In its order, the PCRA court found the
following:
4. [Plea Counsel] did not have any communication with
[Appellant] following the guilty plea hearing until December 2016
when he requested his discovery.
5. [Appellant] did not request that [Plea Counsel] file a direct
appeal on his behalf at any time.
6. There was nothing in [Plea Counsel’s] file indicating that
[Appellant] requested that she file a post-sentence motion or
direct appeal.
Findings of Fact & Conclusions of Law, 8/19/21, at 5.
On August 27, 2021, Appellant, through Attorney Deming, filed timely,
separate notices of appeal at each docket.5 On September 7th, the PCRA
____________________________________________
5 Appellant has thus complied with Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018). See id. at 977 (separate notices of appeal must be filed
when a single order resolves issues arising on more than one trial court
docket), overruled in part, Commonwealth v. Young, 265 A.3d 462, 477
(Pa. Dec. 22, 2021) (reaffirming that Pa.R.A.P. 341 requires separate notices
of appeal when single order resolves issues under more than one docket, but
holding Pa.R.A.P. 902 permits appellate court to consider appellant’s request
to remediate error when notice of appeal is timely filed).
(Footnote Continued Next Page)
-5-
J-S08041-22
court ordered Appellant to file a concise statement of matters complained of
on appeal, and he timely complied on September 17th. Appellant’s concise
statement raised 13 issues.
On appeal, Appellant asserts the following issue:
Did the PCRA Court err in its August [19], 2021 Order, dismissing
[Appellant’s] Motion for PCRA relief in . . . finding . . . [Appellant]
did not request [Plea Counsel] to file a direct appeal on his behalf
at any time[,] given the insistence of [Appellant] at the PCRA
hearing that he did request [Plea Counsel] to file an appeal as he
was being led out of the courtroom after sentencing and given the
testimony of [Plea Counsel stating] “I can’t say that it absolutely
didn’t happen, although I would think that I might remember if it
did” along with her other testimony[?]
Appellant’s Brief at 5.
Our standard of review for a PCRA petition is well established. “The
PCRA court’s factual determinations are entitled to deference, but its legal
[conclusions] are subject . . . to plenary review.” Commonwealth v.
Hawkins, 894 A.2d 716, 722 (Pa. 2006). “[T]he PCRA court judge may
believe all, some, or none of a particular witness’ testimony.”
Commonwealth v. Mitchell, 105 A.3d 1257, 1277 (Pa. 2014). The “PCRA
court’s credibility determinations are binding upon an appellate court so long
____________________________________________
Furthermore, we note that although Attorney Deming filed a notice of
appeal, Appellant is represented by Douglas Waltman, Esquire, on appeal.
The trial docket does not indicate when new counsel entered their appearance.
-6-
J-S08041-22
as they are supported by the record.” Commonwealth v. Robinson, 82
A.3d 998, 1013 (Pa. 2013).
A successful ineffective assistance of counsel claim requires a PCRA
petitioner to plead and prove by a preponderance of the evidence three
mandatory elements: (1) the underlying legal claim has arguable merit; (2)
counsel had no reasonable basis for acting or failing to act; and (3) the
petitioner suffered resulting prejudice. Commonwealth v. Charleston, 94
A.3d 1012, 1019 (Pa. Super. 2014) (citation omitted). Generally, the third
prong necessitates a petitioner to show that but for counsel’s act or omission,
the outcome of the proceeding would have been different. Id.However, this Court has stated:
[C]ounsel’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) (citation
omitted).
Appellant argues that the PCRA court erred by dismissing his PCRA
petition because its findings were unsupported in the record. He avers the
court erred in determining he failed to prove that Plea Counsel refused his
request for a direct appeal. Appellant’s Brief at 19-21. Appellant asserts the
PCRA court’s finding, that “[he] did not request [Plea Counsel] to file a direct
-7-
J-S08041-22
appeal . . . at any time,” is neither supported by the record nor free of legal
error because Plea Counsel’s “testimony was, essentially, that she didn’t
remember[.]” Id. at 19. Appellant argues that because Plea Counsel “did not
actually deny that [he] had requested a direct appeal,” the PCRA court’s
finding that he did not ask for one is unsupported by the record.6 Id. at 21.
Here, the PCRA court found Plea Counsel credible, and found Appellant
did not request her to file an appeal. Our review of the record, including the
transcripts of the September 1, 2016, guilty plea and sentencing hearing and
the May 27, 2021, PCRA hearing, supports the PCRA court’s findings. We note
the sentencing hearing transcript does not include a statement by Appellant
requesting Plea Counsel to file an appeal. See N.T. Guilty Plea & Sentencing
H’rg, 9/1/16 at 11. Although Plea Counsel did not remember whether
Appellant requested she file an appeal, she described her usual procedure
when a client wishes to file a direct appeal, and she stated she did not have
any subsequent meetings with Appellant. N.T., 5/27/21, at 19. Plea Counsel
further confirmed, and the PCRA court found, her files contained no indication
____________________________________________
6 In his brief’s “Statement of the Case” section, Appellant argues Plea Counsel
was ineffective for failing to file a motion to suppress evidence. However,
because Appellant pleaded guilty, he has waived any suppression issue. See
Commonwealth v. Dalberto, 648 A.2d 16, 18 (Pa. Super. 1994) (“It is firmly
established that a plea of guilty generally amounts to a waiver of all defects
and defenses except those concerning the jurisdiction of the court, the legality
of sentence, and the validity of the guilty plea.”) (citations and emphasis
omitted).
-8-
J-S08041-22
Appellant had requested she file a direct appeal. See id. at 19-21. The PCRA
court found Plea Counsel credible, and we defer to this finding. See
Robinson, 82 A.3d at 1013.
In conclusion, the PCRA court did not err in finding Plea Counsel to be
credible and denying Appellant’s petition for collateral relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2022
-9-