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J-S79034-12

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. RICHARD ROBINSON, JR., Appellant No. 1535 EDA 2012 IN THE SUPERIOR COURT OF PENNSYLVANIA

Appeal from the PCRA Order of April 27, 2012, in the Court of Common Pleas of Lehigh County, Criminal Division, at No. CP-39-CR-0002366-2008 BEFORE: OLSON, WECHT and COLVILLE*, JJ. MEMORANDUM BY COLVILLE, J.: Filed: January 24, 2013

This is an appeal from the order dismissing Appellant's petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm. Following a jury trial, Appellant was found guilty of persons not to possess firearms, firearms not to be carried without a license, possession with intent to deliver a controlled substance, possession of a controlled substance, and possession of drug paraphernalia. The trial court also

convicted Appellant of a summary charge of driving while operating privilege is suspended or revoked. convictions. Appellant was sentenced on the above

Appellant appealed his judgment of sentence which was

affirmed by this Court on August 13, 2010. Commonwealth v. Robinson,
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Retired Senior Judge assigned to the Superior Court.

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11 A.3d 1024 (Pa. Super. 2010) (unpublished memorandum). Appellant did not file a petition for allowance of appeal in the Pennsylvania Supreme Court. On May 18, 2011, Appellant filed a pro se PCRA petition. Counsel was appointed and subsequently filed a petition to withdraw pursuant to Turner/Finley1 on the basis that Appellant's petition was without merit. At a hearing on counsel's petition to withdraw, counsel indicated that Appellant was now alleging that he requested Attorney Robert Long to file a petition for allowance of appeal to the Pennsylvania Supreme Court following the denial of his direct appeal and that Attorney Long failed to do so. Counsel agreed to continue representing Appellant. A PCRA hearing was held on

February 1, 2012. At the hearing, the parties agreed that the only issue was whether Attorney Long was ineffective for failing to file a petition for allowance of appeal in the Pennsylvania Supreme Court. hearing, the court denied Appellant's PCRA petition. followed. Appellant's sole issue on appeal is whether counsel was ineffective for failing to file a petition for allowance of appeal. Appellant argues that Following the

This timely appeal

although Attorney Long testified that he did not receive a letter from Appellant requesting that a petition for allowance of appeal be filed on Appellant's behalf, Appellant testified credibly that he did send a letter to
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Commonwealth v. Turner, 544 A.2d 927 (Pa. Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

1988),

and

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Attorney Long requesting that he file said petition. Appellant argues this fact is corroborated by a letter Appellant sent to Attorney Long asking about the status of his appeal. We view Appellant's claim with the following considerations. Our review of an order granting or denying PCRA relief is limited to determining whether the decision of the PCRA court is supported by the record and whether the decision of the PCRA court is free of legal error. We must accord great deference to the findings of the PCRA court, and such findings will not be disturbed unless they have no support in the record. Commonwealth v. Scassera, 965 A.2d 247, 249 (Pa. Super. 2009) (citations omitted). Our standard of review when faced with a claim of ineffective assistance of counsel is well settled. First, we note that counsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant. *** A petitioner must show (1) that the underlying claim has merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors or omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. The failure to prove any one of the three prongs results in the failure of petitioner's claim. Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011). A claim that counsel was ineffective by failing to file a petition for allowance of appeal is cognizable under the PCRA. Liebel, 825 A.2d 630 (Pa. 2003). Commonwealth v.

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The Supreme Court [in Liebel] held that in presenting a PCRA claim of ineffective assistance of counsel for failing to file a requested petition for allowance of appeal, an appellant need not show that the petition would likely have been granted, but merely that the appeal was requested and counsel failed to act. In these situations, the Supreme Court has effectively held that the prejudice prong of the test for ineffective assistance has been established per se. Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super. 2006) (citations omitted). However, in order to prevail on a claim that trial counsel was

ineffective for failing to file a petition for allowance of appeal, a petitioner must prove that he requested a petition for allowance of appeal be filed and that counsel disregarded that request. Id. At the hearing, Appellant testified to the following. represented Appellant at trial and on direct appeal. Attorney Long

Appellant received a

letter from Attorney Long advising him that the Pennsylvania Superior Court denied his appeal. The letter also stated that if Appellant wanted to petition for allowance of appeal to the Pennsylvania Supreme Court, he needed to write to Attorney Long within approximately three weeks. Appellant stated that he responded by letter to Attorney Long indicating that he wanted the petition to be filed. Appellant stated that he did not have a copy of the letter he allegedly sent to Attorney Long. Approximately two months later,

Appellant wrote another letter to Attorney Long to confirm his first letter requesting that a petition be filed. Appellant received a letter from Attorney Long stating that a petition was not filed, that it was beyond the deadline to file one, and that he could file a PCRA petition if he chose to.

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Attorney Long testified at the PCRA hearing as follows. He confirmed writing a letter dated August 24, 2010, to Appellant advising him of the outcome of his appeal to the Superior Court and that he should write to Attorney Long by September 3, 2010, if he wanted a petition for allowance of appeal filed in the Supreme Court. Attorney Long never received a letter from Appellant requesting that he file a petition for allowance of appeal within the requested time period. Attorney Long received a letter from

Appellant dated November 13, 2010, in which Appellant claimed to have sent a previous letter to Attorney Long requesting him to file a petition for allowance of appeal. Attorney Long responded to Appellant by letter dated November 18, 2010, indicating that a petition for allowance of appeal was not filed because Attorney Long never received a response from Appellant to his August 24, 2010, letter. Attorney Long also advised Appellant he could file a PCRA petition and needed to do so by September 2011. Attorney Long received a letter from Appellant dated November 28, 2010, asking Attorney Long to continue to represent him and to file an appeal on his behalf. On cross-examination, Attorney Long testified that there have been one or two times in the past where clients in state prison claimed they had sent him letters that he did not receive. The PCRA court found Appellant failed to meet his burden in this case. The PCRA court explained: While [Appellant] testified that he sent a letter to Attorney Long requesting that a petition be filed, Attorney Long credibly testified that he never received such a request. [Appellant] offered no other evidence to show that such a letter was sent. "Mere allegation will not suffice; the burden is on Appellant to plead and prove that his request for an appeal was ignored or -5-

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rejected by trial counsel." Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999), appeal denied, 753 A.2d 815 (Pa. 2000). ... Attorney Long never received a request from [Appellant] to file a petition, and I cannot find him ineffective for failing to do so. Trial Court Opinion, 04/27/12, at 5-6. We will not disturb the PCRA court's credibility determinations which are supported by the record. We find no error in the PCRA court's

determination that Attorney Long was not ineffective in failing to file a petition for allowance appeal in this case. Accordingly, we find the PCRA

court properly denied the petition; thus, we affirm. Order affirmed.

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