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[U] Commonwealth v. Klatt

Superior Court of Pennsylvania

December 20, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JAMES KLATT, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JAMES KLATT, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order August 10, 2012 In the Court of Common Pleas of Bucks County Criminal Division No(s).: CP-09-CR-0006411-2010, CP-09-CR-0007655-2008

BEFORE: ALLEN, MUNDY and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, James Klatt, appeals from the orders denying his first, timely Post Conviction Relief Act[1] ("PCRA") petition. He contends that his plea counsel was ineffective by not informing him of his appellate rights and not filing a direct appeal. Appellant also claims that all prior counsel were ineffective by not ensuring that the Commonwealth complied with the terms of an alleged plea bargain. We affirm.

We adopt the facts and procedural history as set forth by the PCRA court's opinion. See PCRA Ct. Op., 3/20/13, at 1-5. The PCRA court denied Appellant's PCRA petition on August 10, 2012. Appellant did not file an appeal within thirty days. Appellant's counsel subsequently filed a second PCRA petition requesting reinstatement of Appellant's right to appeal the August 10, 2012 orders. The PCRA court granted Appellant relief on January 14, 2013, and reinstated Appellant's right to appeal nunc pro tunc. Appellant timely appealed.

On January 24, 2013, the court ordered Appellant to file a Pa.R.A.P. 1925(b) statement by February 14, 2013. Appellant untimely filed his Rule 1925(b) statement on February 26, 2013. In his statement, he raised the following issues:

The court erred when it failed to find that [Appellant] received ineffective assistance of counsel when prior counsel failed to adequately consult with him about his appellate rights and failed to file an appeal on his behalf? The court erred when it failed to find that [Appellant] received ineffective assistance of counsel when trial counsel failed to seek the enforcement of the Commonwealth's assurance it would make specific sentencing recommendation and its promise to not oppose a post-sentence motion to withdraw guilty plea, should it be filed by [Appellant] if dissatisfied with the outcome of the sentencing hearing.

Appellant's Rule 1925(b) Statement, 2/26/13, at 1. The PCRA court prepared a Rule 1925(a) decision. Because the PCRA court prepared a responsive decision to an untimely-filed Rule 1925(b) statement, we decline to find per se ineffective assistance of counsel and unnecessarily remand for nunc pro tunc filing of a Rule 1925(b) statement. See generally Pa.R.A.P. 1925(c)(3).

Appellant raises the following issues:

Did the [PCRA] court err in failing to find that sentencing counsel was ineffective when he failed to consult with [Appellant] about his post sentence appellate rights?
Did the [PCRA] court err when it failed to find that all counsel were ineffective for not ensuring that representations made by the prosecuting attorney regarding the Commonwealth's sentencing recommendations and promise not to oppose post-sentence motions, if filed by [Appellant], were honored?

Appellant's Brief at 4.

We summarize Appellant's arguments for both of his issues. For his first issue, Appellant contends that his plea counsel was ineffective by not advising him of his direct appellate rights.[2] He also claims plea counsel was ineffective by disregarding his multiple requests to file an appeal. In his second issue, Appellant contends counsel was ineffective for failing to enforce the terms of a plea bargain. We hold Appellant is not entitled to relief.

"On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted).

[C]ounsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable basis for his or her conduct; and (3) Appellant was prejudiced by counsel's action or omission. To demonstrate prejudice, an appellant must prove that a reasonable probability of acquittal existed but for the action or omission of trial counsel. A claim of ineffective assistance of counsel will fail if the petitioner does not meet any of the three prongs. Further, a PCRA petitioner must exhibit a concerted effort to develop his ineffectiveness claim and may not rely on boilerplate allegations of ineffectiveness.

Commonwealth v. Perry, 959 A.2d 932, 936 (Pa.Super. 2008) (quotation marks and citations omitted).

After careful review of the certified record, the parties' briefs, and the decision of the Honorable Albert J. Cepparulo, we affirm on the basis of the PCRA court's opinion. See PCRA Ct. Op. at 9-10 (concluding that Appellant was informed of appeal deadline at time of guilty plea colloquy; finding Appellant's PCRA hearing testimony not credible with respect to contacting his then-counsel about filing appeal; summarizing testimony that Commonwealth never offered Appellant sentence of four to eight years). Because Appellant failed to establish there was arguable merit, see Perry, 959 A.2d at 936, he has not established legal error and thus we affirm the order. See Abu-Jamal, 941 A.2d at 1267.

Order affirmed.

Mundy, J. concurs in the result.

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