Com. v. Gibboney, D.

• Court: Superior Court of Pennsylvania
• Decided: June 23, 2015
• Docket: 1904 EDA 2014
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DOUGLAS GIBBONEY, : : Appellant : No. 1904 EDA 2014

Appeal from the PCRA Order June 2, 2014, Court of Common Pleas, Chester County, Criminal Division at No. CP-15-CR-0003626-2012

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.

MEMORANDUM BY DONOHUE, J.: FILED JUNE 23, 2015 Douglas Gibboney (“Gibboney”) appeals pro se from the order of court

dismissing his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and permitting his court-appointed

counsel to withdraw. For the following reasons, we affirm.

On January 10, 2013, Gibboney pled guilty to one count of driving

under the influence (“DUI”), 75 Pa.C.S.A. § 3802(c), and one count of

driving under suspension, DUI related (”DUS”), 75 Pa.C.S.A. §

1543(b)(1.1)(iii).1 He was sentenced to one to five years of incarceration on

the DUI charge and a mandatory term of two to five years on the DUS

1 This statute provides as follows: “A third or subsequent violation of this paragraph shall constitute a misdemeanor of the first degree, and upon conviction thereof the person shall be sentenced to pay a fine of $5,000 and to undergo imprisonment for not less than two years.” 75 Pa.C.S.A. § 1543(b)(1.1)(iii). J-S33025-15

charge. Gibboney made no attempt to withdraw his guilty plea or appeal his

judgment of sentence.

On December 23, 2013, Gibboney sent a letter to the trial court asking

for appointed counsel for purposes of a PCRA petition. The trial court

granted Gibboney’s request and appointed Robert Brendza, Esquire

(“Counsel”), to represent Gibboney. Rather than file an amended PCRA

petition, Counsel filed a motion seeking to withdraw pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). On April 8,

2014, the trial court granted Counsel’s request to withdraw and gave

Gibboney notice of its intent to dismiss his PCRA petition pursuant to

Pa.R.Crim.P. 907. Gibboney sent three pro se letters in response thereto.

The trial court concluded that these letters raised no additional issues or

facts that would entitle Gibboney to relief, and on June 2, 2014, it dismissed

Gibboney’s PCRA petition. This timely appeal follows.

In his brief on appeal, Gibboney sets forth ten issues in his statement

of questions involved, but presents argument as to only two issues in the

argument section of his brief. See Gibboney’s Brief at 3-4, 16-18. All issues

that Gibboney included in his statement of questions involved but for which

he did not provide argument are waived. See Commonwealth v. J.F., 800

A.2d 942, 946 n.10 (Pa. Super. 2002) (holding that an issue set forth in

statement of questions involved but with no corresponding argument in brief

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is waived). Furthermore, Gibboney did not include the first issue he

presents in the argument section of his brief in his court-ordered statement

of matters complained of on appeal in his Pa.R.A.P. 1925(b) statement, and

so it, too, has been waived. Commonwealth v. Jackson, 10 A.3d 341,

347 n.4 (Pa. Super. 2010); Pa.R.A.P. 1925(b)(4)(vii).

The only remaining, properly preserved claim is that the PCRA court

erred in denying Gibboney’s request for discovery in conjunction with his

PCRA action.2 Gibboney’s Brief at 17. An appellate court reviews the PCRA

court’s denial of discovery for an abuse of discretion. See Commonwealth

v. Reid, 99 A.3d 470, 486 (Pa. 2014).

Pennsylvania Rule of Criminal Procedure 902 provides, in relevant

part, that “[e]xcept as provided in paragraph (E)(2) [relating to a first,

counseled petition in a death penalty case], no discovery shall be permitted

at any stage of the proceedings, except upon leave of court after a showing

of exceptional circumstances.” Pa.R.Crim.P. 902(E)(1). “[M]ere speculation

that exculpatory evidence might exist does not constitute an exceptional

circumstance warranting discovery.” Commonwealth v. Frey, 41 A.3d

605, 612 (Pa. Super. 2012).

2 This request came in one of the letters Gibboney sent in response to the Pa.R.Crim.P. 907 notice of intent to dismiss.

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The only discernable allegation Gibboney makes in support of his claim

is that “errors may have been made on PCRA[.]” Gibboney’s Brief at 17.3

He does not allege, much less establish, “exceptional circumstances” so as

to permit discovery pursuant to Rule 902(E)(1). Gibboney’s claim is “mere

speculation” that there may be exculpatory evidence, and this is not

sufficient to grant his request. We therefore find no abuse of discretion in

the PCRA court’s determination.

Finally, while this appeal was pending, Gibboney filed a document

titled “application for remand,” in which he claims that this appeal cannot be

decided without an evidentiary hearing on the issues he raised below. We

disagree, as we have found the issues he has raised waived or without

merit. Accordingly, we deny Gibboney’s request.

Order affirmed. Application for remand denied.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/23/2015

3 To the extent that Gibboney attempts to raise a due process violation claim in connection with the PCRA court’s denial of his request for this information, this claim is waived for his failure to raise it in his Rule 1925(b) statement or at any point before the PCRA court. See Jackson, 10 A.3d at 347 n.4; Commonwealth v. Haughwout, 837 A.2d 480, 486 (Pa. Super. 2003) (issues, even of constitutional dimension, are waived if not raised in the court below).

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