Com. v. Huber, J.

• Court: Superior Court of Pennsylvania
• Decided: September 9, 2022
• Docket: 611 MDA 2022
• Status: Unpublished

Opinion

J-S28012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES DAVID HUBER : : Appellant : No. 611 MDA 2022

Appeal from the PCRA Order Entered April 5, 2022 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002794-2017

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED: SEPTEMBER 9, 2022

Appellant, James David Huber, appeals pro se from the order entered

on April 5, 2022, which dismissed his petition filed under the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On December 16, 2019, Appellant entered a negotiated guilty plea to

one count of sexual abuse of children, one count of unlawful contact with a

minor, and two counts of corruption of minors.1 That day, the trial court

sentenced Appellant to serve an aggregate, negotiated sentence of five to ten

years in prison, followed by 14 years of probation. See N.T. Guilty Plea and

Sentencing Hearing, 12/16/19, at 2-21. Appellant did not file a notice of

appeal from his judgment of sentence.

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1 18 Pa.C.S.A. §§ 6312(c), 6318(a)(5), and 6301(a)(1)(ii), respectively. J-S28012-22

On December 14, 2020, Appellant filed a timely, pro se PCRA petition,

where he claimed that his plea counsel provided him with ineffective

assistance. See Pro Se PCRA Petition, 12/14/20, at Appendix 1. The PCRA

court appointed counsel to represent Appellant during the proceedings.

However, on January 3, 2022, court-appointed counsel filed a motion to

withdraw and a no-merit letter pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). See Turner/Finley Letter, 1/3/22, at 1.

On February 8, 2022, the PCRA court granted counsel leave to withdraw

and issued Appellant notice that it intended to dismiss the petition in 20 days,

without holding an evidentiary hearing. See Pa.R.Crim.P. 907(1).

Even though the PCRA court had already granted counsel leave to

withdraw, on February 15, 2022, Appellant filed a motion for leave to proceed

pro se during the PCRA proceedings. That same day, Appellant also filed a

motion for leave to amend his PCRA petition. Within Appellant’s motion for

leave to amend, Appellant did not raise any substantive claim. Instead,

Appellant simply requested that the PCRA court grant him additional time to

file an amended petition. See Appellant’s Motion for Leave to Amend PCRA

Petition, 2/15/22, at 1-3.

On February 24, 2022, Appellant filed a pro se response to the PCRA

court’s notice of intent to dismiss, in which Appellant claimed that his PCRA

counsel provided him with ineffective assistance and that the PCRA court judge

was biased against him, as she was “appointed to the common pleas bench

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directly from the Berks County District Attorney’s Office.” Appellant’s Pro Se

Response, 2/24/22, at 1-7.

The PCRA court finally dismissed Appellant’s PCRA petition on April 5,

2022 and Appellant filed a timely notice of appeal. Appellant raises two claims

to this Court:

1. Did the failure of the PCRA court to address or act upon [Appellant’s] motions for leave to proceed self-represented and amend his initial pro se PCRA petition or the issues raised in his Rule 907 response to the court, and subsequent dismissal of [Appellant’s] initial pro se PCRA petition, constitute clear error and an abuse of discretion that violated [Appellant’s] rights under the state and federal constitutions?

2. Does the due process clause of the Federal Constitution prohibit [Appellant’s] trial judge from sitting in the capacity of PCRA judge and adjudicating [Appellant’s] claims for post-conviction relief regarding constitutional violations in which the trial judge participated or was directly involved?

Appellant’s Brief at 4 (some capitalization omitted).

First, Appellant claims that the PCRA court erred when it: 1) failed to

rule upon his motion to proceed pro se; 2) failed to rule upon his motion to

amend his PCRA petition; and, 3) failed to grant him relief on his claims that

PCRA counsel was ineffective. These claims fail.

Appellant’s first sub-claim contends that the PCRA court erred when it

failed to rule upon his motion for leave to proceed pro se. This claim

immediately fails, as Appellant filed the motion for leave to proceed pro se

after the PCRA court had already granted Appellant’s counsel leave to

withdraw. Therefore, at the time Appellant filed the petition, Appellant was,

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in fact, proceeding pro se. Any claim that the PCRA court erred when it failed

to rule upon Appellant’s request to proceed pro se is, thus, moot.

Appellant also claims that the PCRA court erred when it failed to rule

upon his motion for leave to amend his PCRA petition. This claim fails, as

Appellant did not raise any substantive claim in this motion. Instead,

Appellant’s motion for leave to amend merely requested that the PCRA court

grant him additional time to file an amended petition. See Appellant’s Motion

for Leave to Amend PCRA Petition, 2/15/22, at 1-3. However, when Appellant

filed his motion, the PCRA court had already provided Appellant with notice

that it intended to dismiss his PCRA petition in 20 days – and Appellant has

not provided this Court with any argument as to how the trial court’s refusal

to grant him additional time caused him any prejudice whatsoever. See

Appellant’s Brief at 9-11. This is especially true, given that Appellant filed a

timely response to the PCRA court’s Rule 907 notice and, within the response,

Appellant raised substantive claims that his PCRA counsel was ineffective and

that the PCRA court judge was biased against him. Appellant’s Pro Se

Response, 2/24/22, at 1-7. Therefore, Appellant’s second sub-claim

necessarily fails.

Appellant’s third sub-claim asserts that the PCRA court erred when it

dismissed his petition in the face of his allegations that PCRA counsel provided

him with ineffective assistance. See id. at 12.

To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

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resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffective assistance of counsel which, in

the circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

Counsel is presumed to be effective and “the burden of demonstrating

ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead

and prove by a preponderance of the evidence that:

(1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness, there is a reasonable probability that the outcome of the challenged proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has

explained:

A claim has arguable merit where the factual averments, if accurate, could establish cause for relief. See Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005) (“if a petitioner raises allegations, which, even if accepted as true, do not establish the underlying claim . . . , he or she will have failed to establish the arguable merit prong related to the claim”). Whether the facts rise to the level of arguable merit is a legal determination.

The test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of

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success. Counsel’s decisions will be considered reasonable if they effectuated his client's interests. We do not employ a hindsight analysis in comparing trial counsel's actions with other efforts he may have taken.

Prejudice is established if there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some

quotations and citations omitted). “A failure to satisfy any prong of the test

for ineffectiveness will require rejection of the claim.” Id.

Within his brief, Appellant baldly claims that PCRA counsel was

ineffective because counsel failed to properly communicate with him.

Appellant’s Brief at 13. However, Appellant has failed to identify any

non-frivolous claim that PCRA counsel should have raised in an amended

petition. See Appellant’s Brief at 11-13. Therefore, Appellant has not

demonstrated that PCRA counsel’s alleged ineffectiveness caused him

prejudice. Appellant’s ineffectiveness claim thus fails. Stewart, 84 A.3d at

707 (“[a] failure to satisfy any prong of the test for ineffectiveness will require

rejection of the claim)”

Appellant’s second numbered claim contends that the PCRA court judge

erred when she did not recuse herself from the case, as she “demonstrated

actual bias during the course of [Appellant’s] post-conviction proceedings.”

Appellant’s Brief at 19.

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We review a trial court's decision to deny a motion to recuse for an

abuse of discretion. Vargo v. Schwartz, 940 A.2d 459, 471 (Pa. Super.

2007). Our review of a trial court's denial of a motion to recuse allows for

deference to the trial court's decision on the matter. Id. (“we extend extreme

deference to a trial court's decision not to recuse”). In Commonwealth v.

Harris, 979 A.2d 387, 391–392 (Pa. Super. 2009), this Court stated, “[w]e

recognize that our trial judges are ‘honorable, fair and competent,’ and

although we employ an abuse of discretion standard, we do so recognizing

that the judge [her]self is best qualified to gauge [her] ability to preside

impartially.” Harris, 979 at 391–392 (citations and some quotation marks

omitted). Thus, a trial court judge should grant the motion to recuse only if

a doubt exists as to his or her ability to preside impartially or if his or her

impartiality can be reasonably questioned. In re Bridgeport Fire Litigation,

5 A.3d 1250, 1254 (Pa. Super. 2010).

In order to prevail on a motion for recusal, the party seeking recusal

must “produce evidence establishing bias, prejudice or unfairness which raises

a substantial doubt as to the jurist's ability to preside impartially.” In re S.H.,

879 A.2d 802, 808 (Pa. Super. 2005) (quotation marks and citations omitted).

Here, Appellant claimed that the PCRA court judge should have recused

herself, as she was “appointed to the common pleas bench directly from the

Berks County District Attorney’s Office.” Appellant’s Pro Se Response,

2/24/22, at 1-7. This claim fails, as Appellant’s claim of bias is based solely

upon the fact that the PCRA court judge was formerly employed by a district

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attorney’s office. Yet, as our Supreme Court has held: “[a] jurist's former

affiliation, alone, is not grounds for disqualification.” Commonwealth v.

Abu–Jamal, 720 A.2d 79, 90 (Pa. 1998). And, since Appellant has not raised

any other claim or argument that the PCRA court judge was unable to preside

impartially over his case, Appellant’s final claim on appeal fails.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/09/2022

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