Com. v. Ball, K., Com. v. Ball, K. No. 76 WDA 2017

Background

Appellant Kenneth E. Ball, Jr. was convicted by a jury of terroristic threats and two counts of simple assault after an incident in which he smashed a car window, punched the driver, and threatened one occupant with a knife.
The Commonwealth offered a plea of 6 to 24 months (less one day) plus three years’ probation; Appellant rejected it and proceeded to trial.
At sentencing the court imposed standard-range sentences on all counts and ran them consecutively, producing an aggregate term of about 3 years, 2 months to 9 years. Appellant did not object, file post-sentence motions, or appeal.
Appellant filed a PCRA petition alleging trial counsel was ineffective for failing to file post-sentence motions or a direct appeal and for failing to consult with him about appealing the harsher sentence.
The PCRA court held an evidentiary hearing, credited trial counsel’s testimony that he had warned Appellant pretrial about the risk of high, consecutive standard-range sentences if convicted, and found counsel had no duty to further consult; the PCRA court denied relief.
The Superior Court affirmed, concluding counsel reasonably relied on the court’s sentencing discretion and Appellant’s failure to request an appeal; no Flores–Ortega duty to consult was triggered under the circumstances.

Issues

Issue	Ball's Argument	Counsel/PCRA Court's Argument	Held
Whether counsel was constitutionally ineffective for not filing a direct appeal	Counsel should have filed or filed nunc pro tunc because Ball would have sought appeal of an unexpectedly high, consecutive sentence	Counsel reasonably believed Ball understood appellate deadlines and had been warned pretrial of sentencing risks; Ball did not ask counsel to appeal	Denied — no per se failure because Ball did not clearly request an appeal and counsel had reasonable basis not to file
Whether counsel had a duty to consult about an appeal under Flores–Ortega/Touw	A rational defendant would want to appeal given sentence far exceeded plea and probation recommendations	No; counsel warned Ball pretrial that loss at trial could produce top-of-range consecutive sentences and Ball’s demeanor indicated acceptance	Denied — no duty to consult arose because facts did not indicate a rational defendant would seek appeal
Whether counsel’s inaction lacked a reasonable basis	Ball: counsel should have contacted him after sentencing and filed post-sentence motions preserving discretionary-sentencing claims	Counsel relied on sentencing discretion jurisprudence and the trial court’s articulated reasons; this was a reasonable strategic choice	Denied — counsel had reasonable strategic basis given standard-range, consecutively-run sentence and court’s stated reasons
Whether Appellant demonstrated prejudice from counsel’s failure to consult or file	Ball: would have timely filed post-sentence motion and appeal but for counsel’s omission	PCRA found Ball had been informed of rights and did not ask for appeal; no reasonable probability of a different outcome shown	Denied — Ball failed to prove prejudice required by Flores–Ortega/Mason

Key Cases Cited

Commonwealth v. Mason, 130 A.3d 601 (Pa. 2015) (PCRA ineffective-assistance framework)
Roe v. Flores–Ortega, 528 U.S. 470 (U.S. 2000) (duty to consult about appeal and prejudice standard)
Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001) (applying Flores–Ortega in Pennsylvania)
Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999) (failure to file a requested direct appeal is per se ineffective assistance)
Commonwealth v. Gonzalez–Dejusus, 994 A.2d 595 (Pa. Super. 2010) (consecutive vs. concurrent sentencing generally does not present a substantial question)
Commonwealth v. Lamonda, 52 A.3d 365 (Pa. Super. 2012) (extreme/exceptional circumstances required to raise substantial question on consecutive sentences)
Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009) (restoration of post-sentence rights not automatic when appellate rights restored)