Com. v. Knierim, R., Jr.

• Court: Superior Court of Pennsylvania
• Decided: March 16, 2021
• Docket: 182 MDA 2020
• Status: Unpublished

Opinion

J-A25013-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROGER H. KNIERIM JR. : : Appellant : No. 182 MDA 2020

Appeal from the PCRA Order Entered January 17, 2020 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000595-2016

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROGER H. KNIERIM, JR. : : Appellant : No. 183 MDA 2020

Appeal from the PCRA Order Entered January 17, 2020 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000500-2016

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROGER H. KNIERIM, JR. : : : No. 184 MDA 2020

Appeal from the PCRA Order Entered January 17, 2020 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000646-2017

BEFORE: BOWES, J., OLSON, J., and KING, J. J-A25013-20

MEMORANDUM BY BOWES, J.: FILED MARCH 16, 2021

Roger H. Knierim, Jr., appeals from the order that dismissed his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

In March 2017, Appellant pled guilty to retail theft at each of the two

2016 cases captioned above. Following review of a presentence investigation

report (“PSI”), the trial court sentenced him in June 2017 to two consecutive

five-year terms of probation. Given Appellant’s extensive criminal history, the

court advised Appellant that he faced a significant term of incarceration if he

did not successfully complete probation. See PCRA Court Order and Opinion,

1/17/20, at 3. Appellant filed no direct appeal.

Appellant “only made it 115 days” before he violated probation and was

arrested for the theft of a cell phone and wallet and his use of a credit card

found therein to purchase nearly $300 of goods from a Sheetz store. Id. As

a result of the new charges, which were brought at the 2017 docket captioned

above and which included forgery, access device fraud, and theft by unlawful

taking, the Huntington County Probation Department filed a petition to revoke

his probation in the 2016 cases.

In April 2018, Appellant filed PCRA petitions in the 2016 cases. The

PCRA court appointed counsel, held a hearing, and denied relief. Appellant

appealed the PCRA denial to this Court. Meanwhile, the parties engaged in

negotiations in the 2017 case, reaching a plea agreement that “blew up” at

the last minute based upon Appellant’s push for a slightly lesser minimum

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sentence. See PCRA Court Order and Opinion, 1/17/20, at 9. Counsel

appointed to represent Appellant in the 2017 case engaged in further

discussions, with Appellant’s PCRA counsel for the 2016 charges becoming

involved in the role of peacemaker with the Commonwealth. Meanwhile,

Appellant directed PCRA counsel to discontinue his PCRA appeal, which

counsel did in September 2018 after attempting to talk Appellant out of it.

On October 4, 2018, Appellant entered a guilty plea in the 2017 case to

one count of access device fraud, with the Commonwealth dismissing the

other charges. The trial court accepted the plea in the 2017 case, as well as

Appellant’s admission of the probation violations in the 2016 cases. As it had

familiarity with Appellant and his criminal history that predated the 2016

cases, as well as having recently reviewed a PSI report before imposing

Appellant’s probation sentences, the trial court did not order a new

presentence investigation. Rather, it proceeded to sentence Appellant in all

three cases to an aggregate term of incarceration of four to ten years.

Appellant filed a direct appeal following the denial of his post-sentence

motion. He raised three claims for this Court’s review: (1) that his sentence

was excessive, (2) that the trial court erred in not ordering a new PSI, and

(3) that his admissions to the probation violations were not knowing and

voluntary because his PCRA counsel informed him that he would get

concurrent sentences of one to two years of incarceration in the 2016 cases if

he withdrew his PCRA appeal. See Commonwealth v. Knierim, 217 A.3d

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431 (Pa.Super. 2019) (non-precedential decision at 3, 6-7). This Court

rejected the challenge to the length of Appellant’s sentence, finding no abuse

of discretion given the trial court’s consideration of all relevant sentencing

factors with the benefit of the PSI prepared for the June 2017 sentencing

proceeding and the substantial background information about Appellant’s

extensive criminal history and continuing addiction issues despite prior

attempts at rehabilitation. Id. (non-precedential decision at 5-6). We found

Appellant’s remaining arguments waived because they were not raised prior

to the appeal. Id. (non-precedential decision at 6-7).

Appellant filed a timely PCRA petition as to all three cases, counsel was

appointed, and amended and supplemental amended petitions were filed. In

total, Appellant raised three claims of ineffective assistance of counsel: (1)

per se ineffectiveness under Commonwealth v. Lantzy, 736 A.2d 564 (Pa.

1999), in failing “to perfect the issue of the [t]rial [c]ourt’s failure to direct

that a PSI be ordered for his [2018] sentencing,” see Amended PCRA Petition,

9/12/19, at 4; (2) per se ineffectiveness in waiving for direct appeal the issue

of the validity of his admissions to probation violations, id.; and (3) an

involuntary plea induced by revocation counsel advising him that he would

receive an aggregate sentence of two to four years of imprisonment if he

withdrew his PCRA appeals. See Supplemental Amended PCRA Petition,

12/4/19, at 1-2.

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The PCRA court held a hearing at which plea counsel on the 2017 case,

prior PCRA counsel for the 2016 cases, and Appellant testified. Thereafter, it

issued an order, findings of fact, and opinion denying all of Appellant’s PCRA

claims. Appellant simultaneously filed a timely notice of appeal and a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and

the PCRA court adopted its prior order and opinion to satisfy its Pa.R.A.P.

1925(a) obligations.

Appellant presents this Court with three allegations of PCRA court error:

1. The [PCRA] court erred in denying the Appellant’s [PCRA petition] in regards to the issue of his prior counsel failing to perfect his direct appeal rights as it pertains to the issue of the trial court not ordering a second presentence investigation report (“PSI”) at the time of his re-sentencing for the cases docketed at CR-646-2017, CR-595-2016, and CR-500-2016.

2. The [PCRA] court erred in denying the Appellant’s [PCRA petition] in regards to the issue of his prior counsel failing to perfect his direct appeal rights as it pertains [to] the issue of the validity of his admission of probation violations in the cases docketed at CR-500-2016 and CR-595-2016.

3. The [PCRA] court erred in denying the Appellant’s [PCRA petition] in regards to the issue of whether the Appellant entered a knowing and competent plea for the case docketed at CR646-2017.

Appellant’s brief at 4 (unnecessary capitalization omitted).

We begin with a review of the applicable legal principles. “This Court’s

standard of review regarding an order denying a petition under the PCRA is

whether the determination of the PCRA court is supported by the evidence of

record and is free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344,

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347 (Pa.Super. 2017). “Our scope of review is limited to the findings of the

PCRA court and the evidence of record, viewed in the light most favorable to

the prevailing party at the PCRA court level. The PCRA court’s credibility

determinations, when supported by the record, are binding on this Court.”

Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa.Super. 2014) (en banc)

(cleaned up). Furthermore, “[i]t is an appellant’s burden to persuade us that

the PCRA court erred and that relief is due.” Commonwealth v. Stansbury,

219 A.3d 157, 161 (Pa.Super. 2019) (internal quotation marks omitted).

Appellant’s claims all challenge the performance of counsel.

Accordingly, we observe that counsel is presumed to be effective, and a PCRA

petitioner bears the burden of proving otherwise. Commonwealth v.

Becker, 192 A.3d 106, 112 (Pa.Super. 2018). To do so, the petitioner must

plead and prove: “(1) the underlying legal claim is of arguable merit; (2)

counsel’s action or inaction lacked any objectively reasonable basis designed

to effectuate his client’s interest; and (3) prejudice, to the effect that there

was a reasonable probability of a different outcome at trial if not for counsel’s

error.” Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa.Super. 2020)

(internal quotation marks omitted). “A failure to satisfy any prong of the

ineffectiveness test requires rejection of the claim of ineffectiveness.” Id. at

15 (cleaned up).

In his first two issues, Appellant contends that counsel was ineffective

in failing to preserve for direct appeal the claims that the trial court erred in

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not ordering a new PSI for sentencing Appellant on the revocation of probation

in the 2016 cases and the new conviction in the 2017 case and that he did not

knowingly and voluntarily admit to the parole violations. Appellant maintains

that the failure to preserve these two issues entirely deprived him of his right

to direct appeal such that counsel was ineffective per se. See Appellant’s brief

at 12, 15 (citing Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005) (finding

per se ineffectiveness upon counsel’s waiver of all appellate claims by not filing

a Pa.R.A.P. 1925(b) statement); Lantzy, supra (same—failure to perfect a

requested direct appeal); Commonwealth v. Franklin, 823 A.2d 906

(Pa.Super. 2003) (same—quashal of appeal for deficient brief).

The authority relied upon by Appellant is inapposite. A finding of per se

ineffectiveness is the exception to the general rules of proof for claims of this

nature and exists only in limited circumstances where counsel committed

“errors which completely foreclose appellate review” amounting “to a

constructive denial of counsel.” Commonwealth v. Rosado, 150 A.3d 425,

433 (Pa. 2016). When counsel’s actions or omissions “only partially foreclose

such review,” the claims require proof of all three prongs discussed supra,

namely arguable merit, lack of a reasonable basis, and prejudice. Id. See

also Halley, supra at 801 (“The difference in degree between failures that

completely foreclose appellate review, and those which may result in

narrowing its ambit, justifies application of the presumption in the more

extreme instance.”).

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Here, counsel perfected a direct appeal and obtained merits review of a

claim that Appellant’s sentence was excessive. See Knierim, supra (non-

precedential decision at 5-6). While counsel’s error narrowed the ambit of the

appellate review, Appellant was not constructively denied a direct appeal by

counsel’s failure to preserve two additional claims. See, e.g.,

Commonwealth v. Reed, 971 A.2d 1216, 1226 (Pa. 2009) (holding briefing

deficiency that resulted in waiver of claim did not warrant presumption of

prejudice where appeal was not quashed). Accordingly, Appellant was entitled

to relief on these claims only through pleading and proving each prong of the

above-stated ineffectiveness test.

Appellant does not present any argument addressing the arguable merit

of the claims or suggesting that counsel lacked a reasonable basis in failing to

pursue them. As for prejudice, he merely asserts that he was prejudiced

because this Court found the claims waived and did not address them.

Appellant cites nothing that would have been revealed in a new PSI report

that was likely to have resulted in the imposition of a different sentence. Nor

does he suggest that counsel advised him to admit to the probation violations,

let alone that he would have insisted on an adjudicatory hearing on the

violations but for counsel’s deficient advice. Stated plainly, Appellant offers

no valid basis for us to conclude that the PCRA court erred in rejecting his first

two claims of ineffective assistance. See Commonwealth v. Reaves, 923

A.2d 1119, 1132 (Pa. 2007) (holding PCRA petitioner’s claim that counsel was

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ineffective in failing to challenge inadequate statement of reasons for sentence

following probation violation was properly denied based upon his failure to

establish that the sentence would have otherwise been different);

Commonwealth v. Pier, 182 A.3d 476, 479 (Pa.Super. 2018) (noting that

the voluntariness of a plea challenged through the PCRA depends on “whether

counsel’s advice was within the range of competence demanded of attorneys

in criminal cases,” and that the petitioner must establish that, absent counsel’s

error, he would have insisted upon going to trial). No relief is due.

In his final issue, Appellant asserts that the PCRA court erred in denying

his claim that counsel’s ineffectiveness rendered his pleas involuntary.

Specifically, “Appellant contends that [plea counsel] advised him that if he

discontinued his PCRA Petition, that he would receive 6 to 13 months each on

the cases docketed at 500-2016 and 595-2016, and 1 to 2 years for the case

docketed at 646-2017.” Appellant’s brief at 17. He argues that the PCRA

court erred in denying him PCRA relief in the form of withdrawal of his plea in

light of his own testimony at the PCRA hearing. See id. at 21 (citing N.T.

PCRA Hearing, 12/19/19, at 31-40).

Appellant’s argument ignores the PCRA court’s factual findings and our

standard of review. While Appellant did testify as indicated, the PCRA court

rejected his testimony in favor of that of plea counsel and prior PCRA counsel,

who testified that they did not advise him to withdraw his PCRA appeals and

that there was no plea agreement to any particular sentence. See PCRA Court

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Order and Opinion, 1/17/20, at 2, 19. The PCRA court’s factual findings and

credibility determinations are supported by the record. See N.T. PCRA

Hearing, 12/19/19, at 9-11, 28-31. Therefore, we may not disturb them. See

Medina, supra at 1214. Consequently, Appellant’s final claim was properly

denied upon the failing of its factual underpinning, and no relief is due.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/16/2021

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