Com. v. Swaayze, D., 2122 EDA 2016

In November 2013, after a non-jury trial, Demetrius Swaayze was convicted of robbery of a motor vehicle, conspiracy, theft by unlawful taking, and receiving stolen property; he was sentenced to 3–6 years imprisonment plus two years probation on January 14, 2014.
No post-trial motions or direct appeal were filed within the appeal period.
On September 25, 2014, Swaayze filed a timely pro se PCRA petition claiming trial counsel was ineffective for failing to file a direct appeal; counsel was appointed and sought reinstatement of appeal/post-sentence motion rights nunc pro tunc.
At the June 13, 2016 evidentiary hearing, Swaayze testified he told counsel after sentencing that he wanted to appeal and sent letters and calls indicating the same; counsel testified she did not recall a clear request and believed an appeal would be futile.
The PCRA court credited counsel’s testimony, denied relief on the ineffective-assistance claim (but amended sentencing entries to show no further penalties on two counts), and Swaayze appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for failing to file a direct appeal	Swaayze: he told counsel after sentencing and later wrote/called asking her to file an appeal, so his appellate rights should be reinstated nunc pro tunc	Commonwealth / counsel: no clear, contemporaneous request; counsel discussed appeal and advised it would be futile; no file notation or message showing an instruction to appeal	Court credited counsel, held Swaayze failed to prove he requested an appeal and denied PCRA relief
Whether counsel was ineffective for failing to file a post-sentence motion nunc pro tunc	Swaayze: he instructed counsel to file post-sentence motion and there was no strategic basis for counsel’s failure	Commonwealth / counsel: no proof of instruction and counsel believed motions would be unfruitful	Court rejected claim for same reasons as direct-appeal claim; no arguable merit shown

Dockins v. Commonwealth, 471 A.2d 851 (Pa. Super. 1984) (defendant must show he requested counsel to file appeal and counsel failed to do so)
Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001) (applies Flores-Ortega standard to counsel’s duty to consult about appeals)
Roe v. Flores-Ortega, 528 U.S. 470 (2000) (counsel must consult about appeal when a rational defendant would want to appeal or defendant reasonably demonstrated interest)
Commonwealth v. Markowitz, 32 A.3d 706 (Pa. Super. 2011) (discusses counsel’s consultation duties under Flores-Ortega)
Commonwealth v. Luster, 71 A.3d 1029 (Pa. Super. 2013) (standard for proving ineffective assistance under PCRA)
Commonwealth v. Johnson, 668 A.2d 97 (Pa. 1995) (trial court’s credibility determinations are binding on appeal)