Com. v. Gilces, L.

313 A.3d 453

• Court: Superior Court of Pennsylvania
• Decided: January 18, 2024
• Docket: 735 EDA 2023
• Status: Unpublished

Opinion

J-S36028-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LUIS R. GILCES : : Appellant : No. 735 EDA 2023

Appeal from the PCRA Order Entered February 27, 2023 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0002430-2018

BEFORE: BOWES, J., NICHOLS, J., and KING, J.

MEMORANDUM BY NICHOLS, J.: FILED JANUARY 18, 2024

Appellant Luis R. Gilces appeals from the order denying his first petition

filed under the Post Conviction Relief Act1 (PCRA). We affirm.

By way of background, Appellant was charged with 179 counts of

multiple crimes related to his participation in an identity theft scheme in 2018.

On July 20, 2021, Appellant pled guilty to a single count of possession of an

instrument of crime (PIC).2 Appellant subsequently failed to appear for two

scheduled sentencing hearings. On May 9, 2022, the trial court conducted a

third sentencing hearing at which Appellant appeared via Zoom. Ultimately,

the trial court sentenced Appellant to sixteen to forty-eight months’

incarceration. Appellant did not file a direct appeal.

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1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. § 907(a). J-S36028-23

On May 25, 2022, Appellant filed a pro se PCRA petition. The PCRA

court appointed PCRA counsel, who filed an amended petition on Appellant’s

behalf.3 The PCRA court filed a Pa.R.Crim.P. 907 notice of intent to dismiss.

Appellant did not respond to the notice, and the PCRA court dismissed

Appellant’s amended PCRA petition on February 27, 2023. This timely appeal

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P.

1925.

Appellant sets forth the following issues for our review:

1. Did the trial [c]ourt commit reversible error when it violated Appellant’s constitutional right to be physically present at his [s]entencing [h]earing?

2. Did the trial [c]ourt commit reversible error when it failed to find trial counsel ineffective for failing to object to Appellant appearing via Zoom for his [s]entencing [h]earing?

Appellant’s Brief at 4.4

In his first claim, Appellant argues that the trial court erred in allowing

him to be sentenced without being physically present at the sentencing

3 We note that PCRA counsel initially filed a request to withdraw and a Turner/Finley “no merit” letter. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, the PCRA court denied PCRA counsel’s request upon discovering that she did not address an issue raised by Appellant in his pro se filing, and PCRA counsel filed an amended petition on Appellant’s behalf.

4 We note with disapproval the fact that the Commonwealth has failed to file

an appellee’s brief in this matter.

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hearing and permitting the hearing to proceed via Zoom.5 See Appellant’s

Brief at 4, 15-20.

Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citation omitted). This

Court applies a de novo standard of review to the PCRA court’s legal

conclusions. Commonwealth v. Hutchinson, 25 A.3d 277, 284 (Pa. 2011).

A PCRA court’s credibility determinations, however, are binding on this Court

when such determinations are supported by the record. Id.; see also

Commonwealth v. Davis, 262 A.3d 589, 595 (Pa. Super. 2021) (stating that

“[t]his Court grants great deference to the findings of the PCRA court if the

record contains any support for those findings” (citation omitted)).

To be eligible for PCRA relief, a petitioner must demonstrate that the

issues raised in his PCRA petition have not been previously litigated or waived.

See 42 Pa.C.S. § 9543(a)(3). Section 9544 of the PCRA states that “an issue

is waived if the petitioner could have raised it but failed to do so before trial,

at trial, during unitary review, on appeal or in a prior state postconviction

proceeding.” 42 Pa.C.S. § 9544(b). We have reiterated that “[a]n issue is

waived if it could have been raised prior to the filing of the PCRA petition, but

5 It appears that Appellant has conflated his two distinct issues in one argument in his appellate brief. See Appellant’s Brief at 7-20. However, we will address them separately.

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was not.” Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa. Super.

2007) (citation omitted).

Here, the PCRA addressed Appellant’s claim as follows:

[T]he record gives no indication that [Appellant] ever objected to appearing at his sentencing hearing via two-way simultaneous audio-visual communication prior to filing his PCRA petition. [Appellant] did not address the issue at the sentencing hearing, see N.T., 5/9/22, at 2-11, no post-sentence motions were filed, and there was no direct appeal.

Rule 907 Notice, 1/24/23, at 3, ¶ 6.

Following our review of the record, we agree with the PCRA court’s

conclusion that Appellant failed to raise this claim prior to filing the instant

PCRA petition. See Sandusky, 203 A.3d at 1043. Therefore, because

Appellant could have raised the issue previously, but did not do so, it is waived

under Section 9544(b) of the PCRA. See Turetsky, 925 A.2d at 879; see

also Commonwealth v. Lambert, 797 A.2d 232, 240 (Pa. 2001) (plurality)

(finding that the petitioner waived a PCRA claim that he could have raised on

direct appeal (citing 42 Pa.C.S. § 9544(b))). Accordingly, Appellant is not

entitled to relief on this claim.

In his remaining claim, Appellant argues that trial counsel was

ineffective for failing to object to proceeding with the sentencing hearing via

Zoom. See Appellant’s Brief at 4, 7-20.

It is well settled that “[i]ssues not raised in the trial court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a); see also

Commonwealth v. Reid, 259 A.3d 395, 413-14 (Pa. 2021) (concluding that

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the PCRA petitioner waived his ineffectiveness claim by failing to include it in

his PCRA petition).

Here, our review of the record confirms that Appellant failed to raise any

issue challenging the effective assistance of trial counsel in his amended PCRA

petition or in his supporting memorandum of law. See Am. PCRA Pet.,

12/28/22, at 1; Mem. of Law, 12/28/22, at 1-3 (unnumbered). Therefore,

because Appellant failed to present this issue before the PCRA court in the

first instance, the issue is waived. See Reid, 259 A.3d at 413-14; Pa.R.A.P.

302(a). For these reasons, we affirm.

Order affirmed. Jurisdiction relinquished.

Date: 1/18/2024

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