Com. v. Gyle, M.

• Court: Superior Court of Pennsylvania
• Decided: November 9, 2023
• Docket: 207 MDA 2023
• Status: Unpublished

Opinion

J-S35042-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MATTHEW A. GYLE : : Appellant : No. 207 MDA 2023

Appeal from the PCRA Order Entered January 13, 2023 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000482-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MATTHEW A. GYLE : : Appellant : No. 208 MDA 2023

Appeal from the PCRA Order Entered January 13, 2023 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000483-2019

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: NOVEMBER 9, 2023

Appellant, Matthew A. Gyle, appeals from the order of the Luzerne

County Court of Common Pleas denying his petition filed pursuant to the Post

Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. (the “PCRA”). He had entered

guilty pleas to two criminal incidents and alleged the ineffective assistance of

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* Retired Senior Judge assigned to the Superior Court. J-S35042-23

sentencing counsel with respect to one. The PCRA court denied relief after a

hearing because it found “with certainty” that Appellant did not suffer

prejudice from counsel’s failure to seek reconsideration of the sentence

imposed. We affirm.

Appellant was charged with aggravated indecent assault, terroristic

threats, unlawful restraint (risking serious injury), false imprisonment, and

two counts of simple assault, in connection with an incident on January 12,

2019, in which, among other things, he broke his daughter’s cheek bone and

threatened to kill her with an ice pick.1 These charges were docketed under

CP-40-CR-0000483-2019, and are the subject of Appeal No. 208 MDA 2023.

While Appellant was in prison in connection with these charges, he made

harassing phone calls to his daughter, the victim of the January 12th charges.

He tried to convince his daughter to drop the charges against him, and when

she declined, threatened to claim she had stolen his car. On January 23, 2019,

the daughter reported the harassment. While with a police officer, she

answered a call from Appellant on speaker in which he admitted significant

portions of his plan to have her prosecuted if she did not drop the charges.

Appellant was then charged with intimidating a witness and harassment.2 The

January 23rd charges were docketed under CP-40-CR-0000482-2019 and are

the subject of Appeal No. 207 MDA 2023. ____________________________________________

1 18 Pa.C.S. §§ 3125(a)(1), 2706(a)(1), 2902(a)(1), 2903(a)(1),

2701(a)(1), and 2701(a)(3), respectively.

2 18 Pa.C.S. §§ 4952(a)(3) and 2709(a)(7), respectively.

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On May 25, 2021, represented by one attorney for the charges under

docket 482 and by another for the charges under docket 483, Appellant

entered guilty pleas under both dockets before the Honorable David W. Lupas.

With respect to the January 23rd incident on docket 482, Appellant entered a

plea of guilty to one count of intimidation of a witness, as a felony of the

second degree, for which the sentence to be imposed would be 48 to 96

months. In addition, the Commonwealth withdrew the charge of harassment.

With respect to the January 12th charges on docket 483, Appellant entered

guilty pleas to terroristic threats graded as a misdemeanor of the second

degree, unlawful restraint graded as a misdemeanor of the first degree, false

imprisonment graded as a misdemeanor of the second degree, and one count

of simple assault graded as a misdemeanor of the second degree. There was

no agreement with respect to the sentence to be imposed, but the

Commonwealth agreed to withdraw the charge of aggravated indecent assault

and one of the two counts of simple assault. The plea court ordered a pre-

sentence investigation to be conducted. N.T. 5/25/21, 2-3, 8.

Appellant was sentenced by Judge Lupas on July 22, 2021. At the

sentencing he was represented by the same counsel for docket 482, but new

counsel from the same law office for docket 483. Because the sentence for

docket 482 had been agreed upon, defense counsel on docket 483 took the

lead in the sentencing hearing. He emphasized that defendant had cooperated

and taken responsibility by pleading guilty, and that he had been diagnosed

as being bipolar with manic depression for which he was receiving treatment.

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Appellant’s sister testified about his mental illness and how well he took care

of his family when not experiencing issues. Counsel asked for a sentence term

of 12 to 24 months to run concurrently with the sentence for docket 482.

Counsel for docket 482 also asked that all sentence terms be served

concurrently. In his allocution, Appellant emphasized that he now understood

his difficulties controlling his temper and drug use, had changed his ways while

out of prison for seven months, and promised to continue treatment for his

mental illness. He stated he would work hard to improve his behavior so he

could be present for his family. N.T. 7/22/21, 2-6.

The victim, Appellant’s daughter, read a statement about the effect

Appellant’s violence had on her, and asked the court to impose the statutory

maximum. The Commonwealth argued for consecutive terms because of

Appellant’s history of violence and failed supervision when not incarcerated.

N.T. 7/22/21, 7-10.

The court explicitly noted that it had read the pre-sentencing

investigation report and listened to all the arguments and evidence presented

at the hearing. The court explained that Appellant had a substantial criminal

history of violence that was like the instant matters. The nature of the violence

was far reaching and, in the instant cases, had long-standing impact on the

victim. The court stated that it would credit Appellant’s acceptance of

responsibility. It recognized that Appellant suffered from mental illness, but

believed that militated in favor of a lengthy, structured supervision to address

his drug, alcohol, anger management, and mental health issues. Therefore, it

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ordered all sentence terms on docket 483 to be served consecutively to each

other and to the agreed-upon 48 to 96 months incarceration on docket 482.

Specifically, the court imposed 12 to 24 months’ incarceration on each of the

guilty plea convictions on docket 483: terroristic threats; unlawful restraint;

false imprisonment; and simple assault. These sentence terms were legal as

each of the convictions were graded as misdemeanors of the first- or second-

degree, and within the standard range of the guidelines. The aggregate

sentence imposed on docket 483 was 48 to 96 months’ imprisonment, to be

served consecutively to the 48 to 96 months’ imprisonment imposed under

docket 482. The court also ordered evaluations of Appellant’s mental health,

drug and alcohol use, and anger management problems and for treatment for

batterer intervention. N.T. 7/22/21, 11-14.

Appellant did not file a direct appeal. On April 20, 2022, he filed pro se

a PCRA petition listing both docket numbers. Counsel was appointed and filed

a supplemental petition. A PCRA hearing was held on December 1, 2022, at

which Appellant presented a single claim of ineffective assistance of

sentencing counsel on docket 483 for failing to file a requested motion for

reconsideration of sentence. Appellant withdrew a challenge to the failure of

either of his counsel to file a direct appeal and any challenge to the sentence

imposed or stewardship of counsel under docket 482. N.T. 12/1/22, 4-5, 16-

17, 21-22; PCRA Court Opinion, 5.

The PCRA hearing was held before Judge Lupas. Appellant presented the

evidence he would have liked to have presented at a sentence reconsideration

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hearing. Specifically, he wanted the court to know he had changed his outlook

during his last stay in state prison and wanted to do the right thing and have

a productive life outside of prison. To that end, during the seven-month period

after his release and prior to his sentencing in the instant matter: he found

full-time employment; had his own house and car; paid his bills; had no new

scrapes with law enforcement; and had learned, through a course, the effect

crime has on the victim.3 In short, he wanted the court to know that he had

changed for the better and had demonstrated that change. Appellant testified

that he could not make that presentation at the time of sentencing because

he was nervous and “mixed up” from all the things happening in his life. On

cross-examination he agreed that he spoke to the court during his sentence

proceeding. He agreed that he told the court that he had realized his issues

caused his problems, he had done everything right while out of prison and

awaiting sentencing in the instant matter, he was working full-time, taking

care of his family, and wanted to prove he could change. N.T. 12/1/22, 14-

24.

3 The notes of testimony from the December 1, 2022 PCRA hearing were not

in the certified record. Appellants are responsible for making sure the record forwarded to this Court contains that which is needed for the Court to properly review any particular claim brought by the appellant. See Commonwealth v. Shreffler, 249 A.3d 575, 584 (Pa. Super. 2021). Notwithstanding Appellant’s failure to do so here, upon informal inquiry, our Prothonotary was able to secure the notes of testimony and include them in the record, enabling us to undertake a more complete assessment of this claim.

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The PCRA court permitted counsel to file post-hearing briefs. It entered

its order denying PCRA relief and dismissing the petition on January 13, 2022.

Appellant filed a timely appeal.4

Appellant raises one issue on appeal: “[w]hether trial counsel was

ineffective in failing to file Motion for Modification and/or Reconsideration of

Sentence pursuant to Appellant's request.” Appellant’s Brief, 1 (Questions

Presented for Review). This issue is consistent with his Rule 1925(b)

Statement and how he narrowed his PCRA claims at the hearing.

Our review of an order denying a PCRA petition is limited to determining

whether the record supports the PCRA court’s findings and whether its decision

is free of legal error. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.

2015); Commonwealth v. Johnson, 236 A.3d 63, 68 (Pa. Super. 2020) (en

banc). We must view the findings of the PCRA court and the evidence of record

in a light most favorable to the prevailing party. Mason, 130 A.3d at 617;

Commonwealth v. Mojica, 242 A.3d 949, 953 (Pa. Super. 2020). The PCRA

court’s credibility determinations, if supported by the record, are binding on

this Court. Mason, 130 A.3d at 617; Mojica, 242 A.3d at 953, 956;

Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017).

Appellant’s PCRA claim alleged prior counsel’s ineffective assistance.

Counsel is presumed effective, and “to overcome that presumption a PCRA ____________________________________________

4 PCRA counsel filed two notices of appeal, one for each docket. By Order of

this Court entered on April 27, 2023, the appeals were consolidated. We note, however, that the claim raised in this appeal could only impact the sentence imposed on docket 483, which is the subject of Appeal No. 208 MDA 2023.

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petitioner must plead and prove that: (1) the legal claim underlying the

ineffectiveness claim has arguable merit; (2) counsel’s action or inaction

lacked any reasonable basis designed to effectuate petitioner’s interest; and

(3) counsel’s action or inaction resulted in prejudice to petitioner.” Mason,

130 A.3d at 618; Commonwealth v. Fletcher, 986 A.2d 759, 772 (Pa.

2009). Appellant had to satisfy all three prongs of this test to obtain relief

under the PCRA. Mason, 130 A.3d at 618; Mojica, 242 A.3d at 955; Smith,

181 A.3d at 1175. See Commonwealth v. Cross, 634 A.2d 173, 175 (Pa.

1993) (“The burden of proving ineffectiveness of counsel is on the party

alleging it, and that burden does not shift”).

Appellant’s instant allegation that sentencing counsel was ineffective for

failing to file a motion for reconsideration of sentence is subject to analysis

under Strickland v. Washington, 466 U.S. 668, 694 (1984).

Commonwealth v. Reaves, 923 A.2d 1119, 1132 (Pa. 2007). Therefore,

Appellant had to prove at the PCRA hearing that there was a reasonable

probability that, but for counsel’s unprofessional error, the result of the

proceeding would have been different. Id. “In this context, the only way the

proceeding would have been more favorable would be if counsel’s objection

secured a reduction in the sentence.” Id. Thus, to be entitled to relief on his

claim of ineffective assistance, Appellant had to prove: (1) arguable merit for

filing a sentence reconsideration motion; (2) no reasonable basis for not filing

a sentence reconsideration motion; and (3) actual prejudice with respect to

the sentence imposed because a reconsideration motion was not filed. Id.;

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see also Mason, 130 A.3d at 618; Commonwealth v. Selenski, 228 A.3d

8, 15 (Pa. Super. 2020); Commonwealth v. Ligon, 206 A.3d 515, 519 (Pa.

Super. 2019).

At the PCRA hearing, Appellant testified that he asked counsel to file a

sentence reconsideration motion and not a direct appeal. N.T. 12/1/2022, 4-

5. Sentencing counsel testified and was, at best, equivocal on what Appellant

asked of him after sentencing. Id., 26-28. The PCRA court found that

Appellant asked counsel to file a reconsideration motion and not a direct

appeal. PCRA Court Opinion, 5. That counsel failed to file a requested

reconsideration motion without explanation was sufficient to prove both

counsel’s deficient performance and the lack of a reasonable basis.

Appellant also had to prove actual prejudice, that is, if counsel had filed

for reconsideration, the sentencing court would have granted it and imposed

a lesser sentence. Reaves, 923 A.2d at 1132; Commonwealth v. Presley,

193 A.3d 436, 445 (Pa. Super. 2018). The PCRA court, which also was the

sentencing court, definitively found that the testimony proffered at the PCRA

hearing would not have altered its decision. “We are satisfied that the

sentences imposed in this matter, each of which is within the standard range,

are appropriate and necessary given the Appellant’s significant criminal record

and the serious nature of the offenses for which he found himself before the

court.” PCRA Court Opinion, 6. Because the evidence presented did not

address the court’s concern and would not have caused it to change the

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sentence imposed, the PCRA Court could “state with certainty that the

Appellant was not prejudiced.” Id.

We find no error in the PCRA court’s ruling. The evidence proffered at

the PCRA hearing substantially overlapped with that presented at the original

sentencing, and in no manner reflected “abundant mitigation evidence” that

was not presented at the original sentencing. See Appellant’s Brief, 7.

Essentially, Appellant testified at the PCRA hearing to a revised allocution that

touched on the same points, albeit with some additional detail, as the

allocution he gave at the initial sentencing. In both he claimed to have decided

to address his mental health and substance abuse issues, which he blamed

for his criminal acts, and demonstrated his alleged commitment to this change

by becoming a productive citizen during the seven months between his release

from prison and sentencing in this matter. Thus, he added only details to the

story of his rehabilitation without alleviating the court’s stated concern that

he should be under a lengthy, structured supervision. N.T. 12/1/22, 12.

At neither proceeding, however, did Appellant acknowledge the harm he

caused the victim. In this, he failed to address either of the other factors in

the court’s sentence, the seriousness of the offenses he committed, and his

long criminal record. It is unsurprising, then, that the PCRA court could “state

with certainty that the Appellant was not prejudiced.” PCRA Court Opinion 6.

Where, as here, the PCRA court, which also was the sentencing court, “made

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clear in the PCRA proceedings that he would have imposed the same sentence”

then actual prejudice was not proven. Reaves, 923 A.2d at 1132.5

In sum, the PCRA court correctly determined that Appellant did not

prove his claim of sentencing counsel’s ineffective assistance, and properly

denied relief and dismissed the PCRA petition. We therefore affirm the PCRA

court’s order denying post-conviction relief.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 11/09/2023

5 See also Commonwealth v. Burns, 2021 WL 1156568, at *4 (Pa. Super.

filed Mar. 25, 2021) (no prejudice where record supports PCRA court’s declaration, “without equivocation, that we would not have granted [Burns’] post-sentence Motion for Reconsideration of Sentence if one had been filed”) (non-precedential decision cited for persuasive value pursuant to Pa.R.A.P. 126); Commonwealth v. Brown, 2020 WL 241547, at *4 (Pa. Super. filed Jan. 15, 2020) (no prejudice where the “PCRA court, which also sentenced Appellant for the underlying violation, made clear that it would have denied a motion for reconsideration”) (non-precedential decision cited for persuasive value pursuant to Pa.R.A.P. 126).

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