Opinion
J-S27004-17 No. 1929 EDA 2016
05-24-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. CARLOS UBEN-SANCHEZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 9, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000887-2013 BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Carlos Uben-Sanchez, appeals from the order entered in the Lehigh County Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
42 Pa.C.S.A. §§ 9541-9546.
In its opinion, the PCRA court correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. We add only the following facts: Appellant and plea counsel had a video conference on March 28, 2014, after sentencing. Appellant did not ask plea counsel to withdraw the plea or file a direct appeal. Procedurally, the court denied Appellant PCRA relief on June 9, 2016. Appellant timely filed a notice of appeal and a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b) on June 22, 2016.
Appellant raises two issues for our review:
WHETHER THE PCRA COURT ERRED BY FINDING THAT [PLEA] COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO CONSULT WITH [APPELLANT] REGARDING HIS DESIRE TO APPEAL THE SENTENCE AND TO TAKE THAT APPEAL?(Appellant's Brief at 6).
WHETHER THE PCRA COURT ERRED BY FINDING THAT [PLEA] COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO MORE FULLY LITIGATE THE MOTION TO SUPPRESS?
Appellant concedes in his brief on appeal that his second issue lacks arguable merit; plea counsel had a reasonable basis for not pursuing the suppression motion further; and this Court should not address this issue on appeal. ( See Appellant's Brief at 11-12). Therefore, we give Appellant's second issue no further attention. --------
Our standard of review of a grant or denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We exercise de novo review over the PCRA court's legal conclusions. Commonwealth v. Spotz , 610 Pa. 17, 44, 18 A.3d 244, 259 (2011). Traditionally, credibility issues are resolved by the trier of fact who had the opportunity to observe the witnesses' demeanor. Commonwealth v. Abu-Jamal , 553 Pa. 485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). Where the record supports the PCRA court's credibility resolutions, they are binding on this Court. Id.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable James T. Anthony, we conclude Appellant's remaining issue merits no relief. The PCRA court opinion comprehensively discusses and properly disposes of the question presented. ( See PCRA Court Opinion, filed June 9, 2016, at 3-6) (finding: Appellant's letter to plea counsel indicated Appellant wanted something appealed to expedite his deportation proceedings; record does not indicate Appellant wanted to appeal his judgment of sentence; Appellant received sentence within standard range of sentencing guidelines; Commonwealth withdrew Appellant's more serious charges in exchange for plea; rational defendant would not appeal judgment of sentence under these circumstances). We agree. In Commonwealth v. Lantzy , 558 Pa. 214, 736 A.2d 564 (1999), our Supreme Court made clear that counsel can be deemed ineffective if counsel is unjustified in failing to file a requested appeal. Appellant had the burden to plead and prove he asked counsel to file an appeal and counsel ignored or rejected the request. Appellant failed to carry his burden in this respect. See Commonwealth v. Maynard , 900 A.2d 395 (Pa.Super. 2006) (stating petitioner is entitled to reinstatement of direct appeal rights if he can establish that he requested direct appeal and counsel unjustifiably disregarded request; affirming dismissal of PCRA petition where PCRA court conducted evidentiary hearing and found petitioner had not requested appeal). Here, Appellant asked counsel for assistance on deportation. The PCRA court found no basis to conclude Appellant wanted to file a direct appeal from his judgment of sentence. Therefore, we affirm.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/24/2017
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