Com. v. Foster, E.
2003 MDA 2016
| Pa. Super. Ct. | Oct 13, 2017Background
- Appellant Elijah Foster pled guilty (open plea) to aggravated assault on Feb. 17, 2015; sentencing was left to the court.
- On May 4, 2015 Foster was sentenced to 4 to 10 years imprisonment; no post-sentence motion or direct appeal was filed.
- Foster filed a timely pro se PCRA petition on Jan. 7, 2016; counsel was appointed, an amended petition was filed, and an evidentiary hearing was held.
- Foster alleged plea counsel was ineffective for (a) failing to file a requested post-sentence motion and direct appeal, and (b) failing to consult about the advantages/disadvantages of an appeal.
- At the PCRA hearing Foster testified he asked counsel to file an appeal; counsel denied that request and testified it was her practice to note such requests and she had no record.
- The PCRA court credited counsel’s testimony, found Foster’s claim that he requested an appeal was not credible, and denied relief; this appeal followed.
Issues
| Issue | Plaintiff's Argument (Foster) | Defendant's Argument (Commonwealth/counsel) | Held |
|---|---|---|---|
| 1. Whether counsel was ineffective per se for failing to file a requested direct appeal/post-sentence motion | Foster: He orally requested counsel to file a post-sentence motion and/or direct appeal immediately after sentencing; counsel failed to file it | Counsel: Denies that Foster requested an appeal or motion; would have noted such a request and received no contact; appeal lacked merit | Court: Credited counsel’s testimony; Foster failed to prove he requested an appeal, so no per se ineffectiveness and no relief |
| 2. Whether counsel ineffectively failed to consult about appeal rights (Flores-Ortega duty) | Foster: Alternatively, counsel failed to consult about advantages/disadvantages of an appeal, so he was deprived of appellate decision-making | Counsel/Commonwealth: Claim not raised in the amended PCRA petition; evidence insufficient and duty to consult not established | Court: Claim was waived because it was not pled in PCRA petition; PCRA relief denied |
Key Cases Cited
- Lantzy v. Zappala, 736 A.2d 564 (Pa. 1999) (failure to file a requested direct appeal is prejudice per se)
- Spencer v. Commonwealth, 892 A.2d 840 (Pa. Super. 2006) (mere allegation insufficient to prove counsel ignored a request to appeal)
- Flores-Ortega v. United States, 528 U.S. 470 (2000) (counsel has duty to consult about appeal when reason to think defendant would want one)
- Franklin v. Commonwealth, 990 A.2d 795 (Pa. Super. 2010) (standards for proving ineffective assistance under PCRA)
- Markowitz v. Commonwealth, 32 A.3d 706 (Pa. Super. 2011) (requiring proof that an appeal was requested for per se relief)
- Orlando v. Commonwealth, 156 A.3d 1274 (Pa. Super. 2017) (appellate review standard for PCRA denials)
- Donaghy v. Commonwealth, 33 A.3d 12 (Pa. Super. 2011) (prejudice requirement when counsel fails to consult)
- Reaves v. Commonwealth, 923 A.2d 1119 (Pa. 2007) (prejudice analysis for failure to file post-sentence motion requires showing likely sentence reduction)