Com. v. Touw

• Decision Date: 08 August 2001
• Citation: 781 A.2d 1250
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Kenneth TOUW, Appellant.
• Court: Pennsylvania Superior Court

781 A.2d 1250

COMMONWEALTH of Pennsylvania, Appellee, v. Kenneth TOUW, Appellant.

Superior Court of Pennsylvania.

Submitted January 29, 2001.

Filed August 8, 2001.

Daniel Silverman, Philadelphia, for appellant. Robert A. Graci, Asst. Dist. Atty., Harrisburg, for Com., appellee.

Before: JOHNSON, HUDOCK and KELLY, JJ.

HUDOCK, J.:

¶ 1 This is an appeal from the order denying Appellant's petition for post-conviction collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. sections 9541-46. For the reasons that follow, we vacate the order and remand the case for further proceedings.

¶ 2 On July 28, 1998, an information was filed charging Appellant with sixteen counts of delivery of a controlled substance (cocaine) and one count of criminal conspiracy to deliver a controlled substance (cocaine).¹ On September 17, 1998, Appellant pled guilty to four counts of delivery pursuant to a plea agreement with the Commonwealth.² The trial court sentenced him on November 3, 1998, to pay fines totaling $5,000.00 and to undergo imprisonment for a total of six and one-half to thirteen years. No post-sentence motions were filed on Appellant's behalf, and no appeal was taken.

¶ 3 On October 15, 1999, new counsel filed a PCRA petition on Appellant's behalf. The petition alleged numerous instances of ineffectiveness of trial counsel, including failure to consult with Appellant regarding the propriety of an appeal. The petition requested that Appellant's appellate rights be reinstated nunc pro tunc or that a new trial be granted. On March 10, 2000, the PCRA court conducted a hearing at which four witnesses, including Appellant and plea counsel, testified. At the hearing, Appellant's counsel stated, "Judge[,] we're only here today to determine whether my client's appellant [sic] rights should be reinstated. The merits, the underlining [sic] merits, of those claims that he would otherwise raise on appeal in my view are not before the Court today." N.T., 3/10/00, at 3. On April 5, 2000, the PCRA court entered an opinion and order denying Appellant's petition. The court considered only the issue of counsel's alleged ineffectiveness in not pursuing an appeal, as that was the only issue preserved at the hearing. This timely appeal followed.

¶ 4 Appellant presents the following issues for our consideration:

1. Did appellant voluntarily waive his state constitutional right to a direct appeal where his lawyer failed to ever consult with him about the propriety of an appeal, even though counsel himself believed that the sentencing court had committed a fundamental legal error?

2. Did the PCRA court err in denying appellant's timely request to have his direct appeal rights reinstated by focusing exclusively on whether appellant told his lawyer that he wanted to appeal without considering whether counsel had an independent obligation to consult with appellant about the propriety of an appeal?

3. Assuming this Court agrees to entertain in this appeal appellant's substantive legal claims, did the sentencing court err in applying appellant's prior record score of "one" to each of the four counts before the court where these multiple drug convictions arose out of the same transaction and contiguous train of criminal events?

4. Did the investigating and arresting officers, all agents of the Bureau of Narcotics Investigation of the Attorney General's Office, lack jurisdiction to investigate and arrest appellant, and was trial counsel ineffective for failing to raise this issue?

Appellant's Brief at 3.

¶ 5 "Our review of a PCRA court's grant or denial of relief is limited to examining whether the court's determination is supported by the evidence and whether it is free of legal error." Commonwealth v. Davis, 760 A.2d 406, 409 (Pa.Super.2000), appeal denied, 525 Pa. 595, 575 A.2d 561, 2001 Pa. Lexis 922 (Pa. May 2, 2001). "This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding." Commonwealth v. Nelson, 393 Pa.Super. 611, 574 A.2d 1107, 1110 (1990). The findings of the post-conviction court will not be disturbed unless they have no support in the record. Commonwealth v. Neal, 713 A.2d 657, 660 (Pa.Super.1998). The PCRA court found the following facts:

1. Prior to sentencing, [Appellant] completed a Written Guilty Plea Colloquy in which he answered "yes" to the following questions:

24. But if you do plead guilty, you give up your right to appeal your guilty plea except on three (3) grounds:

1.) That the guilty plea was not made voluntarily or you did not understand what you were doing when you plead [sic] guilty.

2.) That the court could not accept your guilty plea because the crime or crimes did not occur in Wayne County.

3.) That the judge's sentence is unlawful or improper.

Do you understand these grounds of appeal?

25. You may also appeal your guilty plea if you believe your attorney was incompetent in representing you or otherwise acted improperly in advising you to plead guilty. Do you understand this?

26. If you do wish to appeal your guilty pleas based on these grounds, you must petition the court to withdraw your guilty plea either before you are sentenced or within ten (10) days after you are sentenced. If the court does allow you to withdraw your guilty plea, then you go to trial on the charges against you. If the court does not allow you to withdraw your guilty plea, you may appeal that decision to the Superior Court within thirty (30) days after you are sentenced. Do you understand this?

2. [Appellant] initialed each page of the colloquy and also signed it.

3. [Appellant] and [plea counsel] met immediately prior to sentencing, at that time [plea counsel] utilized a sentencing memorandum which contained a graph.

4. At that time, [plea counsel] explained to [Appellant] various subjects including a legal sentence, an illegal sentence, the Court's discretion in imposing sentence, sentencing options, and appellate rights.

5. After sentencing, the Court advised [Appellant] of his appellate rights and [Appellant] indicated he understood.

6. After sentencing, [plea counsel] met with various members of [Appellant's] family, including his mother and step-father.

7. At that time, [plea counsel] informed family members he didn't believe there were sufficient grounds to challenge the sentence.

8. Immediately after sentencing, [plea counsel] wrote a letter to [Appellant], care of Robert J. Myer ([Appellant's] step-father) in which he state[d] he didn't recommend filing a Motion to Modify Sentence because the sentence imposed was within the standard range if the prior record score of 1 was not applied to the three less serious counts.

9. After sentencing, [Appellant] remained in the Wayne County Prison for a two or three day period.

10. During this period, [Appellant] telephoned his mother.

11. [Appellant] never, in any way or form, requested [plea counsel] to file an appeal to the Superior Court.

12. PCRA counsel agreed that [Appellant] failed to ask [plea counsel] to file an appeal.

PCRA Court Opinion, 4/4/00, at 2-4. We have carefully reviewed the certified record, including the transcript of the sentencing hearing and the transcript of the PCRA hearing, and we find ample support therein for the PCRA court's findings, with the exception of finding number seven.

¶ 6 Plea counsel, Appellant's stepfather, and Appellant's mother testified consistently that counsel conveyed his opinion that the trial court had erred in applying the sentencing guidelines.³ After that point of agreement, the testimony of plea counsel and Appellant's parents diverged. Appellant's parents testified that counsel told them that, although an appeal would probably be successful, the trial court would likely sentence Appellant more harshly on remand. Counsel denied having said that an appeal would probably be successful, but as of the day of the hearing he still believed that his interpretation of the guidelines was correct. He also denied having said that the trial court would impose a harsher sentence on remand. He testified that he advised Appellant's parents against an appeal because the end result would likely be the same sentence. Counsel believed that to be the likely outcome because the sentence imposed by the trial court fell within the standard range produced by his interpretation of the guidelines. Thus, although counsel at one point summarized his advice to Appellant's stepfather as being that he "did not believe there were grounds to challenge sentence," N.T., 3/10/00, at 22, that characterization does not accurately capture the substance of his advice.

¶ 7 We must now examine whether the court's determination is free of legal error. We begin by noting that this case does not fit within the rule articulated by our Supreme Court in Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999). The Court held:

[W]here there is an unjustified failure to file a requested direct appeal, the conduct of counsel falls beneath the range of competence demanded of attorneys in criminal cases, denies the accused the assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, as well as the right to direct appeal under Article V, Section 9, and constitutes prejudice for purposes of Section 9543(a)(2)(ii) [of the PCRA]. Therefore, in such circumstances, and where the remaining requirements of the PCRA are satisfied, the petitioner is not required to establish his innocence or demonstrate the merits of the issue or issues which would have been raised on appeal.

Id. at 226-27, 736 A.2d at 572 (footnote omitted). This Court has subsequently held that "Lantzy did not obviate the requirement that the petitioner first prove that he requested an appeal before he is entitled to relief." Commonwealth v. Harmon, 738 A.2d 1023, 1024-25 n. 5 (Pa.Super.1999), ...