Com. v. Durr, M.

• Court: Superior Court of Pennsylvania
• Decided: October 12, 2017
• Docket: 2192 EDA 2016
• Status: Unpublished

Opinion

J-S59036-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL R. DURR : : Appellant : No. 2192 EDA 2016

Appeal from the PCRA Order June 30, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001979-2015

BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 12, 2017

Appellant, Michael R. Durr, appeals pro se from the order entered in

the Delaware County Court or Common Pleas denying his first Post

Conviction Relief Act1 (“PCRA”) petition.2 We affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 In the instant case, following the filing of the first PCRA petition, Appellant filed a plethora of pro se motions and petitions. See Docket, 8/22/16, at 1- 4; see also PCRA Ct. Op., 8/18/16, at 5-8. On June 30, 2016, the court entered several orders. See Docket, 8/22/16, at 3-4. Appellant identifies the June 30th order on appeal as follows: “The June 30th order which is the subject of the instant appeal dismissed [Appellant’s] first PCRA petition.” See Appellant’s Brief at 2. In a separate order, on June 30th, the court dismissed Appellant’s second pro se PCRA petition filed on May 13, 2016, in a separate order. See Order, 6/30/16. J-S59036-17

The facts are unnecessary for our disposition. On June 10, 2015,

Appellant entered into a negotiated guilty plea to simple assault 3 and

terroristic threats.4 For simple assault, Appellant was sentenced to time

served to 23 months’ incarceration, with immediate parole status. For

terroristic threats, Appellant was sentenced to a two-year term of county

probation to be served consecutively to the period of parole for simple

assault. See N.T. Sentencing Hr’g, 6/10/15, at 8-9. On September 21,

2015, Appellant filed a pro se PCRA petition. On September 22, 2015,

counsel was appointed.5 On March 10, 2016, counsel filed an application to

3 18 Pa.C.S. § 2701(a)(1).

4 18 Pa.C.S. § 2706(a)(1).

5 The PCRA court noted:

Despite this court promptly appointing [Henry] DiBenedetto Forrest, Esquire, as his collateral lawyer, [Appellant] subsequently forwarded to this court’s chambers and/or the Delaware County Judicial Support Office numerous and varied self-represented pleadings as follows: Motion for discovery; Motion for Miscarriage of Justice; Petitioner’s Right to an Evidentiary Hearing; Motion to Withdrawal [sic] Guilty Plea; Writ of Habeas Corpus; and an Application for Writ of Habeas Corpus. See Correspondences dated October 13, 2015; November 5, 2015; December 7, 2015; January 7, 2016; January 12, 2016; and January 25, 2016. Recognizing [Appellant] was represented at all such times by PCRA counsel, the court instructed the Delaware County Office of Judicial Support to lodge as well as docket these pleadings and forwarded copies of all the same to Attorney DiBenedetto Forrest.

(Footnote Continued Next Page)

-2- J-S59036-17

withdraw appearance and a Turner/Finley6 “no merit” letter. On May 3,

2016, the PCRA entered an order granting counsel’s application to withdraw

and notice of intent to dismiss without a hearing pursuant to Pa.R.Crim.P.

907. On June 30, 2016, the court denied the PCRA petition. This timely pro

se appeal followed.

Appellant raises the following issue for our review: “Whether PCRA

counsel was ineffective for failing to file an amended PCRA, for failing to

raise counsel’s ineffectiveness for advising [A]ppellant to plead guilty, and

for failing to investigate.” Appellant’s Brief at 3. Appellant contends that

“PCRA counsel failure to amend the PCRA to raise counsel’s ineffectiveness

for advising appellant to plead guilty when facts and evidence could have

been in his favor resulting in a victim of institutional sexual assault being set

up and put in prison by the perpertrator . . . .” Id. at 7 (reproduced

verbatim). Appellant claims “PCRA counsel’s failure to raise counsel’s

ineffectiveness for advising [A]ppellant to plead guilty [when] the

[A]ppellant tried to discuss the facts of the case with PCRA, but counsel (Footnote Continued) _______________________

PCRA Ct. Op. at 4. The PCRA court opined: “Relevant to these various, self- represented pleadings of [Appellant], a defendant may proceed pro se or can enjoy the benefit of an attorney’s stewardship; however, a ‘hybrid representation’ of pro se litigation contemporaneous with a lawyer’s of- record representation is prohibited. Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007).” PCRA Ct. Op. at 4 n.4.

6 See Commonwealth v. Finley, 481 U.S. 551 (1987); Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).

-3- J-S59036-17

refused to listen.” Id. at 8. “PCRA counsel was ineffective for failing to

investigate the facts of the case.” Id.

As a prefatory matter, we consider whether Appellant has waived the

issues raised on appeal based upon his response to the court’s order to file a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. On July 18,

2016, Appellant was ordered to file a Rule 1925(b) statement. On August 4,

2016, Appellant filed a response to the July 18th order.7 The trial court

found that “[c]learly, [Appellant] timely received copies of the court’s order

directing him to lodge a statement of matters complained of on appeal. As

[Appellant] has failed to comply with this court’s instruction, his issues on

appeal should be deemed waived.” PCRA Ct. Op. at 11.

In his timely response to the court’s July 18th order, Appellant “avers

how can he provide the requirements of the order by this court and submit a

1925(b), when [he] is being deprived critical information that is deliberately

being withheld by Comm. of Del.” Correspondence, 8/4/16, at 1. “Appellant

states Denise McCray, defense attorney was ineffective on June 10, 2015, by

way advicing Defendant to sign a plea bargain, without fully, thoroughly, &

properly investigating the in said case No. 1979-15, by this failure Defendant

Michael Durr, was exposed to extreme prejudice, & is now reconignized in

light as outrageously baised by genderly prejudicing Defendant & sideding ____________________________________________

7 The document was docketed as “Case Correspondence.”

-4- J-S59036-17

with the female Plaintiff over her obligations as defense counsel.” Id.

(reproduced verbatim). We decline to find waiver on the basis of a failure to

file a statement of errors complained of on appeal.8

“On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008). “Furthermore, we note that we

are bound by the PCRA court’s credibility determinations where there is

record support for those determinations.” Commonwealth v. Santiago,

855 A.2d 682, 694 (Pa. 2004).

With respect to claims of counsel’s ineffectiveness,

[C]ounsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable basis for his or her conduct; and (3) Appellant was prejudiced by counsel’s action or omission.[9] To demonstrate prejudice, an appellant must prove that a reasonable probability of acquittal existed but for the action or omission of trial counsel. A claim of ineffective assistance of counsel will fail if the petitioner does not meet any of the three prongs. Further, a PCRA petitioner must exhibit a concerted effort to develop his ineffectiveness claim and may not rely on boilerplate allegations of ineffectiveness. ____________________________________________

8 We note that “we may uphold a decision of the trial court if there is any proper basis for the result reached.” Commonwealth v. Rosser, 135 A.3d 1077, 1087 n.5 (Pa. Super. 2016) (en banc) (citation omitted). 9 This test was enunciated in Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987).

-5- J-S59036-17

Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008)

(punctuation and citations omitted).

In determining whether counsel’s action was reasonable, the court

does not consider “whether there were other more logical courses of action”

counsel could have pursued, but simply examines whether counsel’s decision

had any reasonable basis. Commonwealth v. Washington, 927 A.2d 586,

594 (Pa. 2007). Conversely, to merit relief, counsel’s action, given all the

other available alternatives, must be “so unreasonable that no competent

lawyer would have chosen it.” Commonwealth v. Miller, 431 A.2d 233,

234 (Pa. 1981) (citation omitted). “The burden of proving ineffectiveness

rests with [a]ppellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa.

2007).

Appellant presents a layered claim of PCRA counsel’s ineffectiveness.

Layered claims of ineffectiveness “are not wholly distinct from the underlying claims[,]” because “proof of the underlying claim is an essential element of the derivative ineffectiveness claim[.]” “In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel. If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue.”

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012)

(citations omitted and emphasis added). Furthermore,

[A] petitioner must plead in his PCRA petition that his prior counsel, whose alleged ineffectiveness is at issue, was ineffective for failing to raise the claim that counsel who

-6- J-S59036-17

preceded him was ineffective in taking or omitting some action. In addition, a petitioner must present argument . . . on the three prongs of the Pierce test as to each relevant layer of representation.

Commonwealth v. Reaves, 923 A.2d 1119, 1128 (Pa. 2007) (citations

omitted). In Commonwealth v. Rathfon, 899 A.2d 365 (Pa. Super. 2006),

this Court opined:

“A criminal defendant has the right to effective counsel during a plea process as well as during trial.” [Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).] “A defendant is permitted to withdraw his guilty plea under the PCRA if ineffective assistance of counsel caused the defendant to enter an involuntary plea of guilty.” Commonwealth v. Kersteter, 877 A.2d 466, 468 (Pa. Super. 2005).

We conduct our review of such a claim in accordance with the three-pronged ineffectiveness test under section 9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. § 9543(a)(2)(ii). See [Commonwealth v.] Lynch[, 820 A.2d 728, 732 (Pa. Super. 2003)]. “The voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.” Id. at 733 (quoting [Hickman, 799 A.2d at 141].

* * *

Kersteter, 877 A.2d at 46[8]–69. Moreover, trial counsel is presumed to be effective. Commonwealth v. Carter, [ ] 656 A.2d 463, 465 (Pa. 1995).

Id. at 369.

“Allegations of ineffectiveness in connection with the entry of a guilty

plea will serve as a basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea.” Commonwealth v.

-7- J-S59036-17

Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (citation omitted). “[T]he

defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted

on going to trial.” Rathfon, 899 A.2d at 370 (citation omitted).

Because a plea of guilty effectively waives all non- jurisdictional defects and defenses, after sentencing, allegations of ineffectiveness of counsel in this context provide a basis for withdrawal of the plea only where there is a causal nexus between counsel’s ineffectiveness, if any, and an unknowing or involuntary plea. The guilty plea hearing becomes the significant procedure under scrutiny. The focus of the inquiry is whether the accused was misled or misinformed and acted under that misguided influence when entering the guilty plea.

Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)

(citations and quotation marks omitted).

As an additional prefatory matter, we consider whether Appellant has

waived the issue of PCRA counsel’s ineffectiveness for failing to raise it prior

to the instant appeal. In Commonwealth v. Henkel, 90 A.3d 16 (Pa.

Super. 2014) (en banc), this Court opined:

[The a]ppellant’s first three issues all involve claims pertaining to PCRA counsel’s representation. Neither party has cited the Pennsylvania Supreme Court’s modern treatment of this issue in numerous cases. Commonwealth v. Jette, [ ] 23 A.3d 1032, 1044 n. 14 ([Pa.] 2011); Commonwealth v. Hill, [ ] 16 A.3d 484, 497 n. 17 ([Pa.] 2011); Commonwealth v. Colavita, [ ]

-8- J-S59036-17

993 A.2d 874, 893 n. 12 ([Pa.] 2010);[10] Commonwealth v. Pitts, [ ] 981 A.2d 875 ([Pa.] 2009); Commonwealth v. Ligons, [ ] 971 A.2d 1125 ([Pa.] 2009) (plurality); Commonwealth v. Potter, [ ] 58 A.3d 752 ([Pa.] 2012) (per curiam order). Nor have the parties addressed this Court’s most comprehensive discussion of Pennsylvania Supreme Court precedent on this matter, Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012) (collecting cases). Those decisions all clarify that claims of PCRA counsel's ineffectiveness may not be raised for the first time on appeal.

Id. at 20 (emphasis added). In Ford, this Court opined:

We acknowledge that [the a]ppellant did raise the ineffectiveness of PCRA counsel issue in his Pa.R.A.P. 1925(b) statement after the Supreme Court remanded the matter and new counsel was appointed for purposes of advancing his appeal nunc pro tunc, i.e., at the first opportunity. Additionally, the PCRA court addressed the issue in its Pa.R.A.P. 1925(a) opinion. [The a]ppellant’s question also pertains to matters of record and does not require this Court to engage in any factual findings. Thus, several of the concerns expressed for not addressing such a claim are not present. Nonetheless, a majority of the Supreme Court agrees that issues of PCRA counsel effectiveness must be raised in a serial PCRA petition or in response to a notice of dismissal before the PCRA court. In addition, the Supreme Court’s remand order in the instant case allowed for the appointment of counsel, not for the collateral review process to begin anew. Therefore, we hold that, absent recognition of a constitutional right to effective collateral review counsel, claims of PCRA counsel ineffectiveness cannot be raised for the first time after a notice of appeal has been taken from the underlying PCRA matter.

10 The Pennsylvania Supreme Court stated: “claims of PCRA counsel ineffectiveness may not be raised for the first time at the direct appeal level, much less at the discretionary appeal level.” Henkel, 90 A.3d at 27.

-9- J-S59036-17

Ford, 44 A.3d at 1200-01. Furthermore,

As noted, in Jette, as in [Commonwealth v.] Burkett, [5 A.3d 1260 (Pa. Super. 2010)], the PCRA court did not file a notice of intent to dismiss because it held a hearing. However, the Jette Court did not distinguish Pitts on that ground and signaled that Colavita was binding precedent on the issue of whether a claim of PCRA counsel ineffectiveness could be raised for the first time on appeal. Consequently, the Supreme Court concluded after the Burkett decision that a PCRA petitioner cannot assert claims of PCRA counsel ineffectiveness for the first time on appeal, regardless of whether a Rule 907[11] or 909 notice is involved.

Henkel, 90 A.3d at 28 (emphasis added).

In the case sub judice, Appellant asserted claims of PCRA counsel’s

ineffectiveness for the first time on appeal. Therefore, we could find the ____________________________________________

11 Rule 907 provides, in pertinent part, as follows:

Except as provided in Rule 909 for death penalty cases,

(1) the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.

Pa.R.Crim.P. 907(1).

- 10 - J-S59036-17

issue waived. See id.; Ford, 44 A.3d at 1200-01. The PCRA court opined

that “this court on the instant record has no cause to find either trial and/or

appointed [PCRA] counsel’s stewardship anything other than competent.”

Order Granting Counsel’s Application to Withdraw and Notice to Dismiss

Without a Hearing Pursuant to Pa.R.Crim.P. 907, 5/3/16, at 10. Given the

PCRA court’s pronouncement, we will assume, arguendo, that it is not

waived. The PCRA court did not find trial counsel ineffective. See id. at 1-

10.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the PCRA court’s opinion, we affirm, in part, on the basis

of the PCRA court’s Order Granting Counsel’s Application to Withdraw and

Notice to Dismiss Without a Hearing Pursuant to Pa.R.Crim.P. 907, finding

that trial counsel was not ineffective. See id. at 1-10 Therefore, the

layered claim of ineffective assistance of PCRA counsel is meritless. See

Rykard, 55 A.3d at 1190. Accordingly, we affirm the order of the PCRA

court dismissing Appellant’s PCRA petition.

Order affirmed.

PJE Bender joins the Memorandum.

Judge Ott Concurs in the Result.

- 11 - J-S59036-17

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/12/2017

- 12 - Circulated 09/29/2017 04:25 PM