February 20, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
JOHN A. DUZICKY, Appellant
Appeal from the PCRA Order May 30, 2013, Court of Common Pleas, Beaver County, Criminal Division at No. CP-04-CR-0002004-2009
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and PLATT [*], JJ.
Appellant, John A. Duzicky ("Duzicky"), appeals from the order dated May 30, 2013 dismissing his amended petition for relief pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. For the reasons set forth herein, we conclude that Duzicky did not satisfy the requisite elements of a claim for ineffectiveness of counsel, and we therefore affirm the trial court's order.
On December 10, 2010, Duzicky entered open pleas of guilt, without any sentence recommendation from the Commonwealth, on two counts of corrupt organizations, 18 Pa.C.S.A. § 911(b)(3) and (b)(4); four counts each of delivery of marijuana and possession with intent to deliver marijuana exceeding 100 pounds, 35 P.S. § 780-113(a)(3); and two counts of attempt to commit delivery and/or possession with intent to deliver marijuana exceeding 100 pounds, 18 Pa.C.S.A. § 901(a).
On July 6, 2011, the trial court sentenced Duzicky to an aggregate term of imprisonment of not less than six years nor more than twelve years. The trial court also ordered Duzicky to pay fines of $250, 000 and make restitution to the Pennsylvania Office of the Attorney General, Bureau of Narcotics Investigation and Drug Control in the amount of $21, 705. The record remained open for a period of 30 days following sentencing so that plea counsel could receive confirming documentation regarding the amount of restitution from the deputy attorney general. Plea counsel did not file a post-sentence motion or direct appeal from the judgment of sentence.
On March 5, 2012, Duzicky filed a pro se Motion for PCRA Relief. On October 1, 2012, appointed counsel filed an amended PCRA petition, in which Duzicky claimed that his plea counsel, Attorney William Difenderfer ("Attorney Difenderfer"), was ineffective for failing to consult with him (Duzicky) following the judgment of sentence regarding the filing of a direct appeal. According to Duzicky, Attorney Difenderfer's ineffectiveness resulted in a loss of his appellate rights.
On December 21, 2012, the PCRA court held an evidentiary hearing. At the conclusion of the hearing, the PCRA court dismissed Duzicky's petition, concluding that Duzicky did not request an appeal, gave no indication that he wanted to file an appeal, and failed to show actual prejudice. Trial Court Opinion, 05/30/13, at 16. This appeal followed, in which Duzicky raises the following two issues for our determination:
1. Whether prior plea counsel was ineffective when prior plea counsel failed to consult with the defendant with regard to filing an appeal from the sentence imposed?
2. Whether there was actual prejudice to the defendant when prior plea counsel failed to consult with the defendant following sentencing which resulted in the loss of the defendant's appeal?
Duzicky's Brief at 7.
Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's findings of fact, and whether the PCRA court's determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005)), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012). A PCRA petitioner must establish the claim by a preponderance of the evidence. Commonwealth v. Gibson, 592 Pa. 411, 415, 925 A.2d 167, 169 (2007). Credibility determinations made by the PCRA court are binding on this Court where there is support in the record for the determination. Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (citing Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).
The test for ineffectiveness of counsel requires the petitioner to meet a three-prong test: (1) underlying the petitioner's allegation of ineffectiveness, there is a legal claim of arguable merit; (2) petitioner's counsel had no reasonable strategic basis for proceeding as he did; and (3) the petitioner was prejudiced by counsel's ineffectiveness. Commonwealth v. Clark, 599 Pa. 204, 213, 961 A.2d 80, 85 (2008). Failure to meet any one of the three prongs is fatal to petitioner's claim for ineffectiveness. Id.
For his first issue on appeal, Duzicky contends that the trial court erred in concluding that he had not satisfied the first prong of the ineffectiveness of counsel test by setting forth a claim of arguable merit. A claim that has arguable merits is a claim "where the factual averments, if accurate, could establish cause for relief." Commonwealth v. Stewart, __ A.3d __, 2013 WL 6449457 at *4 (Pa. Super. December 10, 2013).
Duzicky claims that Attorney Difenderfer failed to consult with him regarding an appeal. It is disputed whether Duzicky requested Attorney Difenderfer to file an appeal. However, the burden for proving that a petitioner requested his counsel to file an appeal rests with the petitioner. Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999). In cases where the petitioner has made no clear request for an appeal, this Court has held that the petitioner must establish that counsel owed a duty to consult. Commonwealth v. Bath, 907 A.2d 619, 623 (Pa. Super. 2006). In making a determination of whether counsel was required to consult with the petitioner, this Court has held that:
[C]ounsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.
Commonwealth v. Touw, 781 A.2d 1250, 1254 (Pa. Super. 2001) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)).
In this case, Duzicky has not satisfied either of these requirements. First, he has not proven that a rational defendant would want to appeal his conviction, and has not offered any nonfrivolous ground for appeal. Duzicky claims only that he expected Attorney Difenderfer to come speak with him because he did not fully understand the terms of the sentence that was imposed. N.T., 12/21/12, at 9-12. Confusion is not, however, a ground for appeal. Furthermore, there is no evidence in the record that supports Duzicky's claim that he was confused at the sentencing hearing. After reading the terms of the sentence, the Judge asked Duzicky if he had any questions about the sentencing. N.T., 7/6/11, at 37. Duzicky stated that he did not have any questions and understood what he was required to do. Id. Duzicky confirmed that he understood his sentence and his rights when the court informed him of his appellate rights and when he completed the guilty plea colloquy. Id. at 38-41; see also N.T., 12/21/12, at 40. Duzicky made no attempts to seek clarification from Attorney Difenderfer or anyone else regarding the terms of his sentence after the sentencing hearing.
Attorney Difenderfer also testified that he did not think an appeal was warranted. Trial Court Opinion, 5/30/13, at 10. Attorney Difenderfer was pleasantly surprised by the sentence because Duzicky "was looking at multitudes of five year mandatories." N.T., 12/21/12, at 40. The trial court found Attorney Difenderfer's testimony regarding his actions to be credible and reasonable in light of the fact that the sentence Duzicky received was identical to the sentence he would have received if he had elected to cooperate with authorities against the co-defendants in the matter. Trial Court Opinion, 5/30/13, at 16. The record supports the trial court's decision. As a result, there is no evidence that a rational defendant would want to appeal the decision. Duzicky's claim fails to satisfy the first element of establishing a constitutionally-imposed duty to consult.
Second, Duzicky has not proven that he demonstrated to counsel that he was interested in appealing. Although Duzicky testified that he directly asked Attorney Difenderfer for an appeal, N.T., 12/21/12, at 9-12, Attorney Difenderfer denied that he was ever asked by Duzicky to file an appeal. Id. at 33-34. Furthermore, Attorney Difenderfer testified that Duzicky's family members were "extremely happy and surprised as to the sentence." Id. at 34. Duzicky testified that his brother had Attorney Difenderfer's contact information. Id. at 23. However, neither Duzicky's brother, nor any other relative of Duzicky, contacted Attorney Difenderfer regarding an appeal. Id. at 34. After reviewing the record, the trial court found Duzicky's testimony to be "vague, ambiguous and unsupported by the record." Trial Court Opinion, 5/30/13, at 14-16. Our review of the record supports this determination. Therefore, Duzicky's claim fails to satisfy the second element of a duty to consult.
Duzicky did not offer a nonfrivolous ground for appeal and did not reasonably demonstrate to Attorney Difenderfer that he was interested in filing an appeal. As a result, Attorney Difenderfer did not have a constitutionally-imposed duty to consult with Duzicky regarding an appeal. There is no legal claim of arguable merit underlying Duzicky's claim that Attorney Difenderfer was ineffective. Thus, Duzicky's claim does not meet the first prong of the test for ineffectiveness of counsel.
For his second issue, Duzicky contends that the trial court erred in concluding that he was not prejudiced when prior plea counsel failed to consult with the defendant following sentencing. Based upon our disposition of the first issue, however, it is unnecessary to address Duzicky's second issue since he must meet all three prongs of the test for ineffectiveness of counsel. Accordingly, we do not disturb the PCRA court's ruling.