Com. v. Evans, J.

• Court: Superior Court of Pennsylvania
• Decided: October 6, 2014
• Docket: 1836 WDA 2013
• Status: Unpublished

Opinion

J. S50012/14

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JASON SEAN EVANS, : No. 1836 WDA 2013 : Appellant :

Appeal from the PCRA Order, October 22, 2013, in the Court of Common Pleas of Washington County Criminal Division at Nos. CP-63-CR-0000068-2009, CP-63-CR-0001278-2009, CP-63-CR-0001564-2009, CP-63-CR-0002458-2009, CP-63-CR-0002643-2009, CP-63-CR-0002814-2009, CP-63-CR-0002815-2009, CP-63-CR-0002816-2009, CP-63-CR-0002817-2009, CP-63-CR-0002818-2009

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 6, 2014

Appellant appeals the order denying relief pursuant to his first petition

§§ 9541-9546. Finding no error, we affirm.

On October 5, 2010, appellant entered a plea of guilty to one count of

robbery and nine counts of burglary at the above-listed ten criminal docket

provides an accurate synopsis of the ensuing procedural history:

The defendant was represented throughout the proceedings by Gary Graminski, Esq. The date of J. S50012/14

the plea hearing and sentencing was October 5, 2010. The defendant filed an untimely pro se Motion to Withdraw Guilty Plea on October 21, 2010. (Docket 21). Gary Graminski, Esq., withdrew his appearance on December 1, 2010, and Daniel Chunko, Esq., entered his appearance that same day. (Docket 23). The defendant filed a pro se Motion for Reconsideration of Sentence or to Alternatively Extend Deadlines to File Allowance of Appeal Under Pennsyl Act on January 18, 2011. On January 24, 2011, the Court ordered the Commonwealth to respond within twenty (20) days. (Docket 22).

On February 28, 2011, the post-sentence pro se motion filed on October 21, 2010, was denied by operation of law pursuant to Pa.R.Crim.P. 720B(3)c. (Docket 24). An Order of Court was issued on April 20, 2011, indicating that the Commonwealth had never responded to the Order dated January 24, 2011, and that the defendant had not appealed the February 28, 2011 Order. (Docket 25). The Court again ordered the Commonwealth to respond within twenty (20) days. The Commonwealth did not respond until June 10, 2011. (Dockets 26 & 27). The Court issued an Order of Court on June 13, 2011, and denied both of the

that no hearing or argument was required on the motions. The defendant, through counsel, filed a PCRA Petition on October 4, 2011, and alleged ineffective assistance of counsel, a plea of guilty unlawfully induced, and an improper sentence. (Docket 29). The defendant also filed Supplement to PCRA Petition on July 30, 2012. (Docket 33). The Commonwealth filed its Answer to Petition for Post Conviction Relief on August 2, 2012, and the Court filed a Notice of Intention to Dismiss PCRA Petition on October 19, 2012. (Dockets 34 & 35). The defendant responded with a pro se Proposed Dismissal Response on October 25, 2012, and Daniel Chunko withdrew his appearance on November 15, 2012. (Dockets 36 & 38).

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Judge Moschetta Bell dismissed the PCRA Petition without a hearing on November 19, 2012. (Docket 37). The defendant responded with a Motion for Appointment of Counsel/Change of Venue/Re-Review of the tion and Amended Petition and

PCRA Petition Without a Hearing on December 8, 2012. (Docket 39).

This case was transferred to the undersigned on December 21, 2012, and Mary Bates, Esq., was appointed to represent the defendant on January 2, 2013. (Docket 40). She was given thirty (30) days to file an Amended Petition. Although never explicitly stated, this Court has effectively re- PCRA Petition as the defendant requested. Attorney Bates filed a Petition for Extension of Time to File Amended Petition on January 28, 2013, and this Court granted a thirty (30) day extension. (Docket 41). Attorney Bates submitted to the Court on April 22, 2013, a Petition to Withdraw as Counsel and for Extension of Time for Pro Se Defendant to File an Amended/Supplemental PCRA Petition. (Dockets 43

defendant subsequently filed a pro se Supplemental Addition to Amended Petition for Post Conviction Collateral Relief on June 11, 2013. (Docket 44).

On July 2, 2013, this Court issued an Order

intent to dismiss his PCRA Petition. (Docket 45). The Court also informed the defendant that pursuant to the Court in Turner, he must now proceed pro se, by privately retained counsel, or not at all. Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). This Court found that the grounds presented

petitions and responses were patently frivolous, not supported in law or in fact, and no genuine issues of material fact entitled the defendant to relief, and no

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purpose would have been served by any further proceeding. Accordingly, the PCRA Petition was denied on October 22, 2013. (Docket 48).

The defendant filed this appeal on November 12, 2013. (Docket 50).

Trial court opinion, 1/15/14 at 7-9.1

In his rambling, sometimes incoherent, brief, appellant raises four

issues on appeal, which we characterize as follows:

1.

faced deadly weapon enhancements on several cases where the record showed that it was not true?

1 We observe that on November 19, 2012, the PCRA court entered an order

until December 21, 2012, a time beyond thirty days of the dismissal order and where the court had no jurisdiction to further act. See 42 Pa.C.S.A. §5505. This appeal is untimely because the notice of appeal was not filed within thirty days of the November 19, 2012 order. Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A. Nonetheless we will not quash. We note that on November 19, 2012, the PCRA court also entered an order permitting withdraw. The order was based upon a petition by counsel averring that

wanted counsel to withdraw and proceed on his own. We find that the PCRA court was obligated at that point to conduct a colloquy of appellant pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Because the court failed to do so, appellant was denied the assistance of counsel at a time when he had a right to counsel, may have desired counsel, and when his

inaction in this regard constituted a breakdown in the operation of the court.

appellate courts may grant a party equitable relief in the form of an appeal nunc pro tunc in certain extraordinary circumstances [such as fraud or a breakdown in the operations of the court]. Commonwealth v. Stock, 545 Pa. 13, 679 A.2d 760, 763- Criss v. Wise, 781 A.2d 1156,

issues.

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2. Whether trial counsel was ineffective for allowing appellant to plead guilty in light of the improper inducement, whether trial counsel was ineffective in failing to seek withdrawal of t counsel were ineffective in failing to raise these issues?

3. Whether the court erred in failing to dismiss certain charges because the Commonwealth violated the speedy trial rule?

4. Whether the trial court erred in not providing appellant sooner with the transcript of his guilty plea hearing?

We will address these matters seriatim.

Our standard of review for an order denying post-conviction relief is

on is free of legal error. Commonwealth v.

Franklin

will not be disturbed unless there is no support for the findings in the

certified record. Id.

appeal is stated in terms of

ineffective assistance of counsel, we also note that appellant is required to

make the following showing in order to succeed with such a claim: (1) that

the underlying claim is of arguable merit; (2) that counsel had no reasonable

strategic basis for his or her action or inaction; and (3) that, but for the

errors and omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different. Commonwealth v.

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Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any

prong of this test will cause the entire claim to fail. Commonwealth v.

Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed

to be effective, and appellant has the burden of proving otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).

Appellant first asserts that his plea was improperly induced by the

enhancements against him on a number of charges. The exchange to which

appellant was referring occurred during the plea colloquy:

THE COURT: You are entering pleas today to a variety of felonies, one being robbery, a felony of the first degree. It carries with it a maximum sentence of ten to twenty years, a maximum fine of $25,000. You are also entering a plea to a number of burglaries, I believe, about five. Is that right, Mr. Carroll [the assistant district attorney]?

MR. CARROLL: There is one robbery and the remaining nine are burglaries, either F- r F-

THE COURT: Those burglaries that are felonies of the first degree, each carry a maximum sentence of ten to twenty years, and a maximum fine of $25,000. Those burglaries that are felonies of the second degree each carry with them a maximum sentence of five to ten years and a $25,000 fine as well.

I understand that there will be some pleas to felony three type of crime and that felony three carries with it a maximum three and a half to seven years and a $15,000 fine. If through this process today you enter a plea to something other than a felony of the first, second or third degree, I will review with you your statutory maximum and

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minimum sentences and your maximum and minimum fines. You are not facing any sentences today where the Commonwealth is invoking a mandatory minimum sentence. Is that right, Mr. Carroll?

type of enhancements for deadly weapon used or possessed.

THE COURT: Although you could have?

MR. CARROLL: I could have, yes.

THE COURT: On a number of cases?

MR. CARROLL: Yes.

Notes of testimony, 10/5/10 at 4-6.

Appellant argues that he was charged with only one crime, the

robbery, in which he brandished a deadly weapon. Therefore, the

Commonwealth falsely related to him that it could have used deadly weapon

enhancements on a number of his offenses and that this factor induced him

to plead guilty.

inducement occurred, appellant had already decided to plead guilty, which

was the purpose of the proceeding at which he was appearing. Second, the

threat intending to induce appellant to plead guilty; rather, it informed

appellant that no deadly weapon enhancement would be applied. Fourth, it

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is unclear whether the district attorney was stating whether he could apply

deadly weapon enhancement to a number of appe

could apply mandatory minimum sentences or deadly weapon

enhancements; the trial court had asked about mandatory minimum

sentences immediately before the deadly weapon enhancements. We find

Appellant next asserts that trial counsel was ineffective in allowing

appellant to accept a plea after the above-described unlawful inducement

and that subsequent counsel were ineffective in failing to raise this

argument. Obviously, having just analyzed ap

issue, and having found it specious, there is no merit to the issue underlying

his claim of ineffective assistance; consequently, there is no ineffectiveness.

Appellant also contends that trial counsel was ineffective in failing to

file a motion to withdraw his guilty plea which appellant allegedly requested

imposed, a defendant must show that manifest injustice will result if he is

not permitted to withd Commonwealth v. Kirsch, 930 A.2d

1282, 1284 (Pa.Super. 2007), appeal denied, 945 A.2d 168 (Pa. 2008). In

his argument, appellant fails to analyze or explain what manifest injustice

occurred as a result of his plea. Thus, he fails to demonstrate that he likely

would have been permitted to withdraw his plea; consequently, we see no

merit to the underlying claim. Finally, appellant filed a pro se motion to

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withdraw his plea. Thus, we find that appellant has failed to satisfy the

prejudice prong also.

In his third issue, appellant argues that the court erred in failing to

dismiss certain charges because the Commonwealth violated the speedy trial

Pa.R.Crim.P., Rule 600, 42 Pa.C.S.A. Commonweealth v. Barbaro, 94

A.3d 389, 391 n.2 (Pa.Super. 2014). Moreover, during his plea colloquy, the

trial court specifically informed appellant that he was withdrawing and

waiving his Rule 600 claims by pleading guilty and appellant agreed. (Notes

of testimony, 10/5/10 at 7-8.)

In his fourth and final issue, appellant complains that the trial court

erred in not supplying him with his guilty plea transcript quickly enough.

Unfortunately, appellant has inadvertently omitted from his brief three pages

(pp. 42-44) of an apparent four-page argument in this regard.

reversing the order of the PCRA court denying appellant relief.

Accordingly, having found no merit in the issues on appeal, we will

affirm the order below.

Order affirmed. Petition for bail pending appeal denied.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/6/2014

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