J-A12045-20
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`NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
`
`IN THE SUPERIOR COURT OF
`PENNSYLVANIA
`
`No. 161 WDA 2020
`
`:::::::::
`
`COMMONWEALTH OF PENNSYLVANIA
`
`v.
`
`MITCHELL E. MONAGHAN
`
`Appellant
`
`Appeal from the PCRA Order Entered January 8, 2020,
`in the Court of Common Pleas of Jefferson County,
`Criminal Division at No(s): CP-33-CR-0000419-2009.
`
`BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
`
`MEMORANDUM BY KUNSELMAN, J.:
`
`FILED JULY 07, 2020
`
`Mitchell E. Monaghan appeals from the order denying his first petition
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`filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546.
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`We affirm.
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`The pertinent facts and procedural history may be summarized as
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`follows. On May 5, 2010, Monaghan entered a guilty plea to the possession
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`with intent to deliver cocaine and heroin. That same day, the trial court
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`imposed a sentence of 2½ to 5 years of imprisonment and a consecutive
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`three-year probationary term.
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` Monaghan was paroled
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`from state
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`____________________________________________
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`* Retired Senior Judge assigned to the Superior Court.
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`J-A12045-20
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`incarceration in April of 2011.1 Monaghan committed new crimes in 2012,
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`which resulted in the revocation of his parole, and he was recommitted for
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`twenty-four months.
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`Monaghan was reparoled in August of 2014. His maximum sentence of
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`incarceration expired in November 2016, and he began serving his three years
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`of probation. On January 23, 2017, the county adult probation department
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`filed a notice of a Gagnon I hearing,2 based on an incident of domestic
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`violence that occurred approximately two weeks earlier. Although the charges
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`originally filed as a result of this incident were withdrawn, the trial court found
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`probable cause to revoke based upon technical violations, and scheduled a
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`Gagnon II hearing. Although Monaghan held been represented by a county
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`public defender to this point, the public defender’s office withdrew. Monaghan
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`appeared with privately-retained counsel (“revocation counsel”) at the hearing
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`held on February 15, 2017. At the hearing, Monaghan admitted the violations,
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`but the trial court still heard testimony from Monaghan’s state parole agent,
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`as well as Monaghan’s girlfriend and her sister.
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`After hearing this testimony, the trial court found that Monaghan
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`violated his probation. The trial court requested an updated presentence
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`____________________________________________
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`1 The facts regarding Monaghan’s state parole history are taken from his
`parole agent’s testimony at a hearing held on February 15, 2017. See N.T.,
`2/15/17, at 7-8.
`
`2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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`J-A12045-20
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`report and continued the hearing to another date. On March 1, 2017, the
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`hearing reconvened and the trial court heard argument from revocation
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`counsel and Monaghan made a statement to the court. Although adult
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`probation recommended a minimum sentence of 7½ years, the trial court
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`imposed a new sentence of 4 to 15 years of imprisonment.
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`Although he never entered his appearance, Attorney David Shrager, who
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`was hired by Monaghan’s family, filed a timely post-sentence motion for
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`reconsideration, which the trial court denied by order entered March 13, 2017.
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`Monaghan did not file a direct appeal.
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`On December 18, 2017, Monaghan filed a pro se PCRA petition in which
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`he asserted,
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`inter alia, that
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`revocation counsel “rendered ineffective
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`assistance of counsel for failing to advise, consult or make a reasonable effort
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`to discuss with [him] his right to appeal.” PCRA Petition, 12/18/17, at 3. The
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`PCRA court appointed counsel. Monaghan was reparoled in May 2018.3
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`On August 19, 2019, PCRA counsel filed a motion for an evidentiary
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`hearing.4 On October 11, 2019, the PCRA court held an evidentiary hearing
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`____________________________________________
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`3 See N.T., 10/11/19, at 12 (Monaghan testifies he served eighteen months
`before being reparoled).
`
`4 Although it appears that PCRA counsel successfully sought an order from the
`court requiring revocation counsel to return Monaghan’s file, there is no other
`explanation for the almost two-year delay between Monaghan’s filing of his
`pro se PCRA petition, and PCRA counsel’s request for an evidentiary hearing.
`Our Supreme Court has made clear that “[t]he PCRA court [has] the ability
`and responsibility to manage its docket and caseload and thus has an essential
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`J-A12045-20
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`at which both Monaghan and revocation counsel testified. By order entered
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`January 8, 2020, the PCRA court denied Monaghan’s PCRA petition. This
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`timely appeal followed. Both Monaghan and the PCRA court have complied
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`with Pa.R.A.P. 1925.
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`Monaghan now raises the following issue:
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`1. Did the [PCRA] court err in denying [Monaghan’s] PCRA
`petition when the court failed to find that [revocation
`counsel] was ineffective for failing to consult with [him]
`in a meaningful way subsequent to [the] imposition of
`[the] revocation sentence . . . as to the advantages and
`disadvantages of taking a direct appeal[?]
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`Monaghan’s Brief at 4.
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`Under the applicable standard of review, we determine whether the
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`ruling of the PCRA court is supported by the record and is free of legal error.
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`The PCRA court’s factual findings will not be disturbed unless there is no
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`support for the findings in the certified record. Commonwealth v. Barndt,
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`74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted). We apply a de
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`novo standard of review
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`to
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`the PCRA court’s
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`legal conclusions.
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`Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014).
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`Our scope and standard of review is well settled:
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`In PCRA appeals, our scope of review is limited to the
`findings of the PCRA court and the evidence on the record
`of the PCRA court's hearing, viewed in the light most
`favorable to the prevailing party. Because most PCRA
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`____________________________________________
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`role in ensuring the timely resolution of PCRA matters.” Commonwealth v.
`Renchenski, 52 A.3d 251, 260 (Pa. 2012) (citation omitted).
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`J-A12045-20
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`appeals involve questions of fact and law, we employ a
`mixed standard of review. We defer to the PCRA court's
`factual findings and credibility determinations supported by
`the record. In contrast, we review the PCRA court's legal
`conclusions de novo.
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`Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
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`(citations omitted).
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`Monaghan’s claim alleges the ineffective assistance of revocation
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`counsel. To obtain relief under the PCRA premised on a claim that counsel
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`was ineffective, a petitioner must establish by a preponderance of the
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`evidence that counsel’s ineffectiveness so undermined the truth determining
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`process that no reliable adjudication of guilt or innocence could have taken
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`place.
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`Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).
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`“Generally, counsel’s performance is presumed to be constitutionally
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`adequate, and counsel will only be deemed ineffective upon a sufficient
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`showing by the petitioner.” Id. This requires the petitioner to demonstrate
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`that: (1) the underlying claim is of arguable merit; (2) counsel had no
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`reasonable strategic basis for his or her action or inaction; and (3) petitioner
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`was prejudiced by counsel's act or omission.
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`Id. at 533. A finding of
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`"prejudice" requires the petitioner to show "that there is a reasonable
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`probability that, but for counsel’s unprofessional errors, the result of the
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`proceeding would have been different." Id. A failure to satisfy any prong of
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`the
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`test
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`for
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`ineffectiveness will
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`require
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`rejection of
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`the claim.
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`Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
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`J-A12045-20
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`When a defendant does not explicitly instruct counsel to file a direct
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`appeal, counsel may still be found ineffective if counsel does not consult with
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`the defendant about his appellate rights. Commonwealth v. Touw, 781
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`A.2d 1250 (Pa. Super. 2001). In Touw, this Court recognized that in Roe v.
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`Flores-Ortega, 528 U.S. 470 (2000), “the United States Supreme Court
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`defined “consult” as “advising the defendant about the advantages and
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`disadvantages of taking an appeal, and making a reasonable effort to discover
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`the defendant’s wishes.” Touw, 781 A.2d at 1254 (citing Flores-Ortega,
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`528 U.S. at 478)). We then cited the following from Flores-Ortega:
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`[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, 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.
`
`Touw, 781 A.2d at 1254 (citing Flores-Ortega, 528 U.S. at 480)).
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`“A deficient failure on the part of counsel to consult with the defendant
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`does not automatically entitle the defendant to reinstatement of his or her
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`appellate rights.” Touw, 781 A.2d at 1254. As we noted, the High Court in
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`Flores-Ortega held that, in order “to show prejudice in these circumstances,
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`a defendant must demonstrate that there is a reasonable probability that, but
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`for counsel’s deficient failure to consult with him about an appeal, he would
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`have timely appealed.” Touw, 781 A.2d at 1254 (citing Flores-Ortega, 528
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`U.S. at 484)).
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`J-A12045-20
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`Here, the PCRA court summarized its factual findings given the
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`testimony from the evidentiary hearing as follows:
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`In his discussions with Monaghan prior to sentencing,
`[revocation counsel], explained that the [trial court] had
`broad sentencing discretion. The result, he advised, could
`be anywhere between a time-served sentence and one
`ending with a 15-year maximum.
` Monaghan was
`nonetheless unprepared for the latter and was stunned
`when the [trial court] ordered him to prison for 4-15 years.
`His only comment to [revocation counsel] before leaving the
`courtroom, though, was that the sentence was harsh.
`[Revocation counsel] agreed but indicated that there was
`nothing he could do about it.
`
`[Revocation counsel] and Monaghan spoke again that
`afternoon, but the subject of an appeal was not broached.
`[Revocation counsel, Monaghan] said, was only concerned
`with getting paid and walked away upon learning that
`[Monaghan] did not have the money to compensate him for
`his appearance that day. [Revocation counsel], meanwhile,
`could not recall the substance of their post-hearing
`conversation but knew Monaghan’s rendition did not
`comport with his general practice. Monaghan, in any event,
`knew he could appeal the sentence but did not indicate that
`he wanted to so, and [revocation counsel], who well
`understood the deference afforded to sentencing judges and
`had conveyed as much to [Monaghan], had no intention of
`pursuing post-sentence motions or an appeal.
`
`His own intentions notwithstanding, [revocation counsel]
`knew within days that [Attorney David Shrager] was in the
`process
`of
`preparing
`post-sentence motions
`on
`[Monaghan’s] behalf. He even supplied documentation to
`assist his colleague in that endeavor but, as was his habit,
`did not withdraw his own appearance. Meanwhile, although
`[Attorney] Shrager
`filed post-sentence motions
`for
`[Monaghan] on March 10, 2019, he did not make himself
`attorney of record and did not file a direct appeal after the
`post-sentence motion proved unsuccessful.
`
`Monaghan was far from ignorant of the procedural path
`his case was taking. He had spoken with members of his
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`J-A12045-20
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`family and knew they had retained [Attorney Shrager] “for
`the appeal.” [Monaghan] did not communicate with
`[Attorney] Shrager directly at any point, though, and when
`he received a copy of the [trial court’s] order denying his
`post-sentence motions, he did not reach out to either
`[Attorney] Shrager or [revocation counsel] about a direct
`appeal.
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`PCRA Court Opinion, 18/20, at 1-2.
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`Monaghan asserts that “under the above circumstances there would be
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`reason to believe that [revocation counsel] was aware [he] would want to file
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`a motion to modify sentence, and that [he] would, assuming that motion were
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`denied, want to file a direct appeal from the revocation sentence imposed by
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`the court attacking the discretionary aspects of that revocation sentence.”
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`Monaghan’s Brief at 10.
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`The PCRA court found no merit to this claim. Given its factual findings,
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`the PCRA court concluded that Monaghan did not prove prejudice because the
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`“duty” required of revocation counsel by Touw and Flores-Ortega, “never
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`attached.” Id. at 3. The court explained:
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`This was not a case where a defendant stood before the
`court with little understanding of what might happen next.
`Rather, Monaghan knew from discussions with [revocation
`counsel] that sentencing was entirely at the [trial court’s]
`discretion and that it had the authority to exercise its
`discretion anywhere within the pendulum of no sanction to
`a maximum term of imprisonment. He also knew he had
`the right to appeal any sentence the [trial court] imposed.
`As far as the record reflects, however, he did not indicate
`ahead of time that he wanted to take an appeal if it was the
`latter, while there is no question that he did not request an
`appeal afterward.
`
`[revocation
`the circumstances, moreover,
`Under
`counsel] had little reason to think he needed to initiate a
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`J-A12045-20
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`post-sentence, appeal-specific conversation. Though he
`knew ahead of time what could happen, Monaghan did not
`say, “I want to appeal if I get more than . . .,” and when
`[revocation counsel] said there was nothing he could do
`about what [Monaghan] characterized as a “harsh”
`sentence, Monaghan again said nothing about wanting to
`appeal. What both knew, though, was that the minimum
`could have been 7½ years and that Monaghan would be
`eligible for parole in less than a year. That being the case,
`it would be disingenuous to say that [Monaghan’s] silence
`should have given [revocation counsel] notice that he
`wanted to appeal.
`
`Even assuming there was a level of unreasonableness in
`[revocation counsel’s] failure to consult with Monaghan, his
`duty under Touw was fully discharged after he learned first-
`hand that [Attorney] Shrager was going to further pursue
`the matter. [Revocation counsel] surely realized at that
`point that [Monaghan] did in fact want to explore his post-
`sentencing options. In light of [Attorney] Shrager’s
`involvement, and having not heard from Monaghan since
`the date of sentencing, however, there was no cause for
`[revocation counsel] to conclude that he needed to go back
`and ascertain whether [Monaghan] wanted to file a direct
`appeal. Whereas Monaghan understood from what his
`family told him that [Attorney] Shrager was engaged for
`“the appeal,” moreover the [the PCRA court] can reasonably
`conclude that [Monaghan] did not even expect [revocation
`counsel] to file one for him.
`
`Though the [PCRA court] does not question the veracity
`of Monaghan’s assertion that he wanted to file a direct
`appeal, therefore, his own silence after sentencing, coupled
`with his consent to [Attorney] Shrager’s involvement,
`defeats his claim that [revocation counsel] was ineffective
`for failing to consult with him regarding the advantages and
`disadvantages of going that route.
`
`PCRA Court Opinion, 1/8/20, at 3-4.
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`Our review supports the PCRA court’s conclusion. In short, the PCRA
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`court found that Monaghan was aware of his right to appeal, along with its
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`J-A12045-20
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`advantages and disadvantages prior to the imposition of his revocation
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`sentence.
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` We cannot disturb this credibility determination.
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`See
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`Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999)
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`(explaining that when a PCRA court’s determination of credibility is supported
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`by the record, it cannot be disturbed on appeal).
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`In arguing to the contrary, Monaghan assails the PCRA court’s placing
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`“great weight” on the fact that Attorney Shrager filed a post-sentence motion
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`on his behalf, since revocation counsel remained his attorney of record.
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`Monaghan’s Brief at 14. Although revocation counsel never withdrew his
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`appearance as attorney of record, and Attorney Shrager did not enter his
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`appearance before filing the post-sentence motion—in which Monaghan
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`challenged his sentence as excessive—given the unique facts of this case, we
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`agree with the PCRA court that Monaghan could not establish prejudice under
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`the Touw and Flores-Ortega standard. We therefore affirm the PCRA court’s
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`order denying him post-conviction relief.
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`Order affirmed.
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`Judgment Entered.
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`Joseph D. Seletyn, Esq.
`Prothonotary
`
`Date: 7/7/2020
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