J-S39028-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DUSTIN MICHAEL LEESE : : Appellant : No. 103 MDA 2023
Appeal from the PCRA Order Entered December 16, 2022 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0002418-2018
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 3, 2024
Dustin Michael Leese appeals from the order denying his Post Conviction
Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. Leese claims he
is entitled to relief due to ineffectiveness of plea and appellate counsel. We
affirm.
The PCRA court summarized the facts as follows:
On March 18th, 2018, Officer Shaun Goodman allegedly received a phone call from Dustin Leese. [Leese] asked Officer Goodman about an ongoing custody situation he was having with [K.L.] (hereinafter “Victim”) and [L.L.] ([hereinafter] Maternal Grandmother).
[Leese] allegedly told Officer Goodman that Maternal Grandmother entered his apartment and took his daughter from him that morning. When asked why the Maternal Grandmother would have snatched the child from his care, [Leese] responded that he was fighting with the Victim the previous day and that Victim probably said that he raped her. This statement further prompted Officer Goodman to ask why that was, and [Leese] stated that during the morning of March 17, 2018, [Leese] and Victim had sex, but Victim got upset. He further allegedly told J-S39028-23
Officer Goodman that while they don’t have sex often when they do, he likes rough sex.
While Officer Goodman was on the phone with [Leese], he received a phone call from Maternal Grandmother about a domestic situation between Victim and [Leese]. Officer Goodman asked to speak with Victim and allegedly invited Maternal Grandmother and Victim down to the station to be interviewed, and they complied with Officer Goodman’s request.
While at the station Victim spoke with Officer Goodman; Officer Goodman recorded the conversation. Victim told Officer Goodman that [Leese] wanted to have anal sex with her, but she did not want to have anal sex because it caused her pain. The two engaged in sexual intercourse; however, at some point during the sexual intercourse, [Leese] flipped Victim over onto her stomach[, put his forearm around her neck,] and began to choke her to the point of unconsciousness while he tried to perform anal sex on her. The Victim also allegedly tried to tell [Leese] to stop, but as she attempted to, [Leese] increased the grip on his forearm, making it difficult to speak. Eventually, [Leese] loosened his grip, and Victim left the bed and locked herself in the bathroom. . .
Officer Goodman arrested [Leese] on March 18th, 2018, for felony strangulation. . .
Subsequently, the Commonwealth amended the information to include charging [Leese] with rape. . .
Before commencing the trial [on January 13, 2020], [Leese’s t]rial [c]ounsel informally asked for a jury instruction for a mistake of fact for both the rape and strangulation charge. The [c]ourt instructed their law clerk to see if the mistake of fact jury instruction was warranted [for the] jury for the case. The record is absent as to what the reasoning was by the [c]ourt; however, both [t]rial [c]ounsel and [Leese] stated that they were given the impression that the jury would not receive a mistake of fact instruction and they would be left without a defense. Based on that information, [Leese] decided to enter an Alford[1] plea [to strangulation].
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1 North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162
(1970).
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PCRA Court Opinion in Support of Order Pursuant to Pa.R.A.P. 1925(a) (“PCRA
Ct. Rule 1925(a) Op.”), filed 3/20/23, at 1-4 (citations and footnote omitted).
Sentencing was continued to June 1, 2020, due to the COVID-19
pandemic. Prior to sentencing, in May 2020, Leese filed a counseled motion to
withdraw his Alford plea, asserting “that he is innocent of all charges [and]
that undersigned counsel was ineffective.” Motion to Withdraw Plea, 5/28/20,
at ¶ 4. The sentencing hearing was continued to June 30, 2020, so the
Commonwealth could respond to the motion.
On June 29, 2020, Leese’s counsel filed a motion to withdraw as counsel.
Counsel indicated in the motion that Leese had informed him that “he would
like for counsel to withdraw as the attorney of record from this case so that a
public defender may enter his or her appearance.” Motion to Withdraw, filed
6/29/20, at ¶ 2.
At a hearing on June 30, 2020, the court addressed the issue of Leese’s
representation. The court stated:
This is somewhat complicated by the fact that you’ve indicated in your motion through your counsel withdrawal that you feel your attorney was ineffective. That has now triggered your attorney making a request that he be allowed to withdraw as counsel. The problem I have with that is then nobody will be here to address your motion to withdraw your guilty plea. You will be without counsel for that purpose[.]
N.T., 6/30/20, at 2. Leese responded that he applied for a public defender to
represent him and was waiting for his attorney to withdraw. Id. at 2-3. The
court granted counsel’s motion to withdraw and continued the hearing on
Leese’s motion to withdraw his plea to July 20, 2020. Id. at 3.
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Leese appeared at the hearing on his motion to withdraw his plea
without counsel. N.T., 7/20/20, at 1. Leese said that he did not qualify for a
public defender and was without funds to retain a private attorney. Id. at 2.
Leese requested a continuance and stated he would be able to reapply for a
public defender the following week because he would “be under the income
guidelines.” Id. at 3, 6. The Commonwealth objected to Leese’s request for a
continuance stating that Leese had had ample opportunity to obtain another
attorney. Id. at 3. The court noted to Leese that “we’re eight months out and
you still don’t have an attorney.” Id. at 3. The court denied the request for a
continuance and proceeded to address Leese’s motion to withdraw his plea.
In denying the motion to withdraw his plea, the court stated:
[Leese] has not laid a proper foundation for his motion to withdraw [his] guilty plea. He simply asserts he is not guilty. Under the [R]ules of [C]riminal [P]rocedure, simply asserting that he is not guilty is not sufficient to justify withdrawing [one’s] guilty plea.
Id. at 8-9. The court then sentenced Leese to a term in county prison of one
year less one day to two years less two days, followed by five years’ probation,
with credit for time served. Id. at 10. The court deferred Leese’s reporting so
he could apply for work release and continue to seek representation by the
Public Defender. Id. at 11. The court then noted:
I haven’t done this because you’re without counsel. You had counsel and chose to be without counsel and then took no legitimate steps to avoid the complications as a result of your decision.
Id.
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Leese filed a direct appeal claiming the court abused its discretion when
it denied his motion to withdraw his plea.2 This Court affirmed. See
Commonwealth v. Leese, 256 A.3d 23 (Table), 2021 WL 1907753, at *1
(Pa.Super. 2021) (unpublished mem.). We found that the trial court did not
abuse its discretion in denying Leese’s motion because Leese made only a
bare assertion of innocence and failed to make any “colorable demonstration,
under the circumstances, such that permitting withdrawal of the plea would
promote fairness and justice.” Id. at *4 (quoting Commonwealth v. Norton,
201 A.3d at 112, 120-21 (Pa. 2019)). We further noted that the trial court
properly considered the potential prejudice to the Commonwealth that would
result if Leese was permitted to withdraw his plea, because while Victim was
ready to proceed at Leese’s trial, she indicated she was now unwilling to
further cooperate with the Commonwealth after Leese filed his motion to
withdraw his plea because she thought the process was taking too long. Id.
Leese filed a pro se PCRA petition in October 2021. The PCRA court
appointed counsel who filed an amended petition. The court held an
evidentiary hearing on the petition on November 9, 2022.
At the hearing, Leese presented the testimony of an expert in forensic
pathology, Dr. Jonathan Briskin. He testified that he reviewed photographs of
Victim, Victim’s physical exam report, and video interviews. N.T., 11/9/22, at
2 Leese also asserted a claim of ineffectiveness of plea counsel, but this Court
found that claim was premature. See Commonwealth v. Leese, 256 A.3d 23 (Table), 2021 WL 1907753, at *4 (Pa.Super. 2021) (unpublished mem.).
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16-17. Dr. Briskin stated that the exam report stated that petechial
hemorrhages were found on Victim. Id. at 18. He explained that petechial
hemorrhages are “one of the manifestations that you can see in a
strangulation case[.]” Id. However, based on his viewing of the photographs,
he testified that he did not see petechial hemorrhages. Id. at 20-21, 30-31.
Dr. Briskin surmised that the photographs showed “more of a rash that can
be caused by any number of things.” Id. at 21. Based on the evidence he
reviewed, he could not determine whether the sexual acts between Leese and
Victim were consensual or nonconsensual, as the physical evidence was
inconclusive. Id. at 22-23, 29. He noted that he did not see any other indicia
of a forceful sexual engagement, such as bruising around the neck or inner
thigh area. Id. at 23. Dr. Briskin recognized that he could not determine
whether Victim’s voice was affected by the strangulation by simply looking at
photographs. Id. at 26. Dr. Briskin said he would have been available to testify
if he had been contacted earlier about the case. Id. at 24.
Next, Leese’s plea counsel testified at the evidentiary hearing. Plea
counsel testified that Leese informed him he was innocent and that “the marks
on the alleged victim’s body were a result of consensual sex, rough sex that
they had routinely.” Id. at 34. Plea counsel stated that retaining an expert
was not a part of his trial strategy. Id. at 35-36. He explained:
So Mr. Leese had told me that they had sex, it was consensual sex, that they had had rough sex in the past, which included not necessarily choking, but hands around neck.
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And then in the police report, the alleged victim gave a statement to the police in which she corroborated that, that in the past they -- at least on one occasion that he had put his hands around her neck and that was part of their -- their sexual routine, for lack of a better word.
So my strategy was basically to argue that it was consensual sex, albeit potentially rough sex, but consensual; any marks on her body were the result of that. And then subsequent to consensual sex, she essentially made up the story about rape and/or assault in order to gain the upper hand in a custody – very drawn-out custody dispute they had had.
Id. at 36.
Plea counsel also pointed out that retaining an expert would have been
cumulative because the Commonwealth’s expert report was inconclusive as to
whether a sexual assault occurred. Id. at 45. Counsel believed the
Commonwealth’s report was favorable to Leese and testified “it’s always
better to have the Commonwealth’s witness say something that is beneficial
to your case.” Id. at 45-46.
Plea counsel did not specifically remember Leese talking to him about
an expert. Id. at 35. He only recalled Leese telling him that Victim had
seizures which could have possibly caused marks on her body. Id.
Plea counsel further testified that, on the scheduled trial date, he
informed the trial court in chambers that he would be presenting a defense of
consent. Id. at 37. He stated that after the court researched the issue, it
“indicated that that line of argument from defense would not be permitted.”
Id. Plea counsel informed Leese of the court’s ruling and they both agreed
that the ruling made their defense “less compelling.” Id. Plea counsel testified
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that the prosecutor then agreed to dismiss the sex charges and Leese agreed
to enter an Alford plea to the strangulation charge. Id. at 37-38.
Plea counsel testified that in May 2020, four months after Leese entered
his plea, he received an email from Leese requesting him to file a motion to
withdraw his plea. Id. at 39. He acknowledged that Leese sent him a text
message a few days after Leese entered his plea that said, “So where do we
go from here? I’m not very happy about being forced to take that deal.”
However, he said he did not interpret those statements as an indication that
Leese wanted to withdraw his plea at that time. Id. at 40. Counsel instead
thought Leese’s question meant, “What’s next[?]” Id.
Plea counsel stated that within two weeks of receiving Leese’s email in
May 2020, he filed a motion to withdraw Leese’s plea. Id. at 41. Although
counsel did not believe the motion would be granted because a mere assertion
of innocence is insufficient to support a successful motion to withdraw a plea,
counsel complied with Leese’s request. Id. at 42-43. Plea counsel also testified
that none of the text messages Leese sent to him after his plea indicated
anything about the failure to retain an expert. Id. at 47.
Leese’s appellate counsel next testified at the evidentiary hearing.
Appellate counsel testified that she did not raise on appeal the issue that Leese
was without counsel at the hearing on his motion to withdraw his plea and at
sentencing because she believed the claim lacked merit. Id. at 54-56. She
pointed out that Leese’s plea counsel withdrew at Leese’s own request, and
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the court had already continued the hearing for Leese to obtain new counsel.
Id. at 55.
Lastly, Leese testified at the evidentiary hearing. Leese stated he was
prepared to go to trial on the scheduled trial date. Id. at 58. He said that in
2018, he emailed his attorney’s paralegal stating that he wanted to hire an
expert, writing, “[W]e’re going to have to subpoena a dr for the criminal trial
to get the petechiae thrown out as all of [Victim’s] medication can cause
that[.]” Id. at 59-62. Leese testified that he later had a meeting with his
counsel in which he said an expert was discussed, but counsel never brought
it up again. Id. at 62. Leese testified that he wanted a medical expert to testify
because of the physical evidence in the case. Id. at 63. On the date of the
scheduled trial, Leese stated that his attorney informed him that he would
likely be convicted of all charges considering his inability to argue Victim’s
motive due to the court’s ruling. Id. at 64-65.
Leese testified that since “everything on our defense was thrown out,”
he felt compelled to take a plea. Id. at 65. Leese conceded that the court
colloquied him about his decision to take a plea and whether he was satisfied
with counsel. Id. He stated that he told the court that there was nothing else
his counsel could have done because he “didn’t know what else to say really.”
Id. at 66. Leese testified that shortly after he entered his plea, he texted
counsel, “[W]hat happened[?] Id. at 67. He stated that he explicitly asked
counsel in an email to withdraw his plea four months after he entered his plea.
Id. at 68.
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Leese said that he would not have entered his plea if he had been aware
of Dr. Briskin’s report and testimony. Id. at 71-72. He maintained that he
entered his plea at least in part due to the physical evidence and that Dr.
Briskin’s testimony would have given him a defense. Id. at 72. Leese indicated
that he had completed his incarceration but was still on probation at the time
of the hearing. Id. at 70.
On December 16, 2022, the court denied the petition. The court found
Leese not to be credible and found plea counsel to be credible. See PCRA
Court’s Opinion Denying Petitioner’s Request for Post Conviction Collateral
[Relief], (“PCRA Ct. Op.”) filed 12/16/22, at 5. This appeal followed.
Leese raises the following issues:
Did the lower court err in dismissing Dustin Michael Leese’s Amended PCRA Petition where:
1) plea counsel was ineffective in failing to secure the testimony of a medical expert as the absence of such a witness forced Leese into entering an unknowing and involuntary Alford plea;
2) plea counsel was further ineffective for delaying in filing a Motion to Withdraw Plea and in ultimately filing a patently deficient motion that was doomed to failure; and
3) appellate counsel was ineffective in failing to argue the lower court erred in proceeding with a hearing on Leese’s Motion to Withdraw Plea as well as sentencing where Leese had no counsel and did not waive his right to counsel for the proceeding?
Leese’s Br. at 4 (formatting altered).
On appeal from the denial or grant of relief under the PCRA, our review
is limited to determining “whether the PCRA court’s ruling is supported by the
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record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436,
442 (Pa. Super. 2018) (citation omitted).
“[C]ounsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa.Super. 2010). To obtain relief based on a claim of
ineffectiveness, a petitioner must establish: “(1) his underlying claim is of
arguable merit; (2) counsel had no reasonable basis for his action or inaction;
and (3) the petitioner suffered actual prejudice as a result.” Commonwealth
v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “When assessing whether counsel had
a reasonable basis for his act or omission, the question is not whether there
were other courses of action that counsel could have taken, but whether
counsel’s decision had any basis reasonably designed to effectuate his client’s
interest.” Commonwealth v. Williams, 141 A.3d 440, 463 (Pa. 2016).
Prejudice in this context means that, “absent counsel’s conduct, there is a
reasonable probability the outcome of the proceedings would have been
different.” Commonwealth v. Velazquez, 216 A.3d 1146, 1149 (Pa.Super.
2019) (citation omitted). A failure to meet any of these prongs bars a
petitioner from obtaining relief. Commonwealth v. Sneed, 45 A.3d 1096,
1106 (Pa. 2012).
Leese first argues his plea counsel was ineffective for failing to secure a
medical expert, which caused him to enter an unknowing plea. Leese’s Br. at
27. He maintains that an expert witness would have provided an explanation
for the physical evidence. Id. Leese argues that plea counsel had a duty to be
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aware of a medical expert comparable to Dr. Briskin “where Leese specifically
flagged the need for a doctor ‘to get the petechia thrown out.’” Id. at 30
(citation omitted). Leese maintains that an expert’s testimony, such as Dr.
Briskin’s, that there were no petechiae present on Victim, “would have refuted
the notion that [Victim] suffered injuries that confirmed her claim that Leese
strangled her.” Id. at 32, 37. According to Leese, such testimony “would have
neutralized the physical evidence” and “would rendered this a he-said, she-
said case as opposed to a case where [Victim’s] testimony and the physical
evidence appeared certain to defeat Leese’s claim of innocence.” Id. at 38
(emphasis in original). Leese concludes he suffered prejudice from plea
counsel’s failure to pursue expert testimony because there is a reasonable
probability that he would not have pleaded guilty and would have insisted on
going to trial. Id. at 39.
“[C]laims of counsel’s ineffectiveness in connection with a guilty plea
will provide a basis for relief only if the ineffectiveness caused an involuntary
or unknowing plea.” Commonwealth v. Yager, 685 A.2d 1000, 1004
(Pa.Super. 1996) (en banc). The “voluntariness of [the] plea depends on
whether counsel’s advice was within the range of competence demanded of
attorneys in criminal cases.” Commonwealth v. Lynch, 820 A.2d 728, 733
(Pa.Super. 2003) (quoting Commonwealth v. Hickman, 799 A.2d 136, 141
(Pa.Super. 2002)). A defendant who elects to plead guilty is required to
answer all questions during the plea colloquy truthfully and may not later
assert grounds for withdrawing the plea that contradict the defendant’s
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statements during the colloquy. Commonwealth v. Pollard, 832 A.2d 517,
523 (Pa.Super. 2003).
To establish that counsel was ineffective for failing to call a potential
witness, the PCRA petitioner must demonstrate:
(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.
Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) (quoting
Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007)). To
demonstrate prejudice, a petitioner “must show how the uncalled witnesses’
testimony would have been beneficial under the circumstances of the case.”
Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012) (citation
omitted). “Thus, counsel will not be found ineffective for failing to call a
witness unless the petitioner can show that the witness’s testimony would
have been helpful to the defense.” Id. (citation omitted). “A failure to call a
witness is not per se ineffective assistance of counsel for such decision usually
involves matters of trial strategy.” Id. (citation omitted). “Where counsel has
made a strategic decision after a thorough investigation of law and facts, it is
virtually unchallengeable[.]” Commonwealth v. Basemore, 744 A.2d 717,
735 (Pa. 2000).
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“[T]he failure to call an expert witness does not necessarily render
counsel’s performance deficient.” Commonwealth v. Williams, 141 A.3d
440, 464 (Pa. 2016). Indeed,
[t]rial counsel need not introduce expert testimony on his client’s behalf if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony. Additionally, trial counsel will not be deemed ineffective for failing to call a medical, forensic, or scientific expert merely to critically evaluate expert testimony that was presented by the prosecution.
Id. (citation omitted).
Here, the PCRA court found that plea counsel testified credibly at the
evidentiary hearing and his trial strategy was appropriate. See PCRA Ct. Op.
at 5. The court also determined that the testimony of Dr. Briskin would have
been cumulative to evidence that the Commonwealth would have presented
at trial. Id.
We agree plea counsel had a proper strategic basis for not calling an
expert. Plea counsel’s trial strategy was to argue the sexual encounter
between Leese and Victim was consensual and that Leese’s putting his hands
around Victim’s neck was part of “their sexual routine.” N.T., 11/9/22, at 36.
This was a reasonable approach. Thus, calling an expert such as Dr. Briskin
who opined there were no signs of petechial hemorrhaging on Victim would
have contradicted counsel’s trial strategy. Indeed, Dr. Briskin’s testimony was
consistent with the Commonwealth’s medical report that was inconclusive as
to whether nonconsensual sex occurred. Leese therefore fails to meet the
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second prong of the test for ineffectiveness as plea counsel had a reasonable
basis for not retaining an expert.
Leese next argues plea counsel was ineffective for delaying in filing a
motion to withdraw his plea and in ultimately filing a deficient motion. Leese’s
Br. at 39. Leese contends that he expressed his dissatisfaction with his plea
to his counsel less than a week after he entered the plea, and counsel failed
to inform him of the option of withdrawing his plea. Id. at 40. Leese maintains
that when counsel finally filed a motion to withdraw his plea four months later,
the motion was deficient because it merely asserted a bare claim of innocence.
Id. at 42-43. According to Leese, “[h]ad [plea] counsel swiftly followed up
and filed a [m]otion to [w]ithdraw [p]lea, this would have forestalled the
Commonwealth’s eventual argument that [Victim] had grown uncooperative
and that it would be prejudiced by allowing withdrawal of the plea.” Id. at 45.
Counsel cannot be deemed ineffective for failing to file a motion to
withdraw a plea unless counsel was aware at the relevant time that grounds
for withdrawal exist. Commonwealth v. Gonzalez, 840 A.2d 326, 331
(Pa.Super. 2003) (en banc). “In the absence of counsel’s independent
awareness of grounds to file a motion to withdraw plea or the entreaty of [an
a]ppellant, counsel cannot be deemed ineffective for a failing to file such a
plea.” Id.
Here, the record reflects that Leese emailed plea counsel on May 13,
2020, requesting to withdraw his plea. N.T., 11/9/22, at 41. Plea counsel filed
the motion to withdraw plea two weeks later, on May 28, 2020. Id. at 41-42.
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Although Leese texted plea counsel a few days after he entered his plea,
asking, “[W]here do we go from here,” the PCRA court credited plea counsel’s
testimony that he had no indication that Leese wished to withdraw his plea
until he received Leese’s email on May 13, 2020. A mere expression of
dissatisfaction with a plea does not equate to a request to withdraw the plea.
“The law does not require that appellant be pleased with the outcome of his
decision to enter a plea of guilty[.]” Commonwealth v. Diaz, 913 A.2d 871,
873 (Pa.Super. 2006) (citation omitted). “All that is required is that
[appellant’s] decision to plead guilty be knowingly, voluntarily and intelligently
made.” Yager, 685 A.2d at 1004 (citation omitted) (alteration in Yager).
Further, plea counsel followed Leese’s express instruction that the
motion be based on a claim of innocence and ineffectiveness of counsel.
Indeed, plea counsel testified that those were the only two reasons Leese gave
to support the motion. N.T., 11/9/22, at 42.
In addressing this issue, the PCRA court found:
Since [Leese] cited no other evidence as a reason for the PCRA court to assess counsel[’]s alleged ineffectiveness it[] leaves the PCRA court to fundamentally conclude that [Leese’s] claim is meritless since his repeated claim of innocence without anything more is just the same bald assertion wrapped up in a PCRA bow.
Therefore, we will deny [Leese’s] claim that his counsel was ineffective as the record clearly demonstrates his basis for withdrawal was that he was innocent, and that [plea counsel] was ineffective, and since we concluded that [plea counsel] could not assert his own ineffectiveness as reasons for withdraw[al] and no evidence was presented that would call into question the legitimacy of [Leese’s] Alford plea.
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PCRA Ct. Rule 1925(a) Op. at 12-13. We find no error. Leese’s claim of
ineffectiveness on this issue fails.
Lastly, Leese argues that his appellate counsel was ineffective in failing
to argue the trial court erred in proceeding with a hearing on Leese’s motion
to withdraw plea and sentencing when Leese did not have counsel. Leese’s Br.
at 47. Leese maintains he did not waive his right to counsel for the proceeding
and made no indication that he wished to proceed pro se. Id. at 49. He argues
the court also did not make the requisite on-the-record waiver of counsel
colloquy pursuant to Pennsylvania Rule of Civil Procedure 121. Id. at 50. Leese
maintains that he did not engage in any dilatory or unreasonable conduct that
would result in forfeiture of counsel. Id. at 52.
“The Sixth Amendment to the United States Constitution and Article I,
§ 9 of the Pennsylvania Constitution guarantees a criminal defendant the right
to assistance of counsel.” Commonwealth v. McLendon, 293 A.3d 658, 665
(Pa.Super. 2023). However, the right to counsel is not absolute and may be
waived or forfeited. See Commonwealth v. Lucarelli, 971 A.2d 1173, 1178-
79 (Pa. 2009). “Waiver is an intentional and voluntary relinquishment of a
known right.” Id. at 1079 (citation and internal quotation marks omitted).
Conversely, forfeiture “does not require that the defendant intend to relinquish
a right, but rather may be the result of the defendant’s extremely serious
misconduct or extremely dilatory conduct.” Id. (citation and internal quotation
marks omitted). “Where a defendant forfeits his right to counsel, [Rule] 121
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and its waiver colloquy requirements do not apply.” McLendon, 293 A.3d at
666.
Here, Leese was represented by privately retained counsel for over two
years until Leese asked counsel to withdraw. Once the court permitted counsel
to withdraw, it continued the hearing on his motion to withdraw his plea for
Leese to retain new counsel. Leese at that point was obligated to obtain new
counsel or proceed pro se. At the continued hearing, Leese testified that he
did not qualify for a public defender but could not afford private counsel.
Leese offered no proof of either claim, such as an application to the
Public Defender’s Office or proof of the costs of private counsel and
documentation of his financial assets. Nor did he present anything showing
that he took the necessary steps to follow up with obtaining representation.
To date, he has not produced anything suggesting that he could not afford
private counsel or that the Public Defender improperly denied him
representation, and he has not challenged the standards for qualifying for the
Public Defender. The Commonwealth objected to any further delay since more
than six months had elapsed since Leese entered his plea and Victim had
become uncooperative because of the length of the process. Thus, Leese
forfeited his right to counsel, as the record supports the conclusion that he
“put himself in this position intentionally.” See Commonwealth v. Coleman,
905 A.2d 1003, 1007-08 (Pa.Super. 2006). Accordingly, the court was not
required to conduct a Rule 121 waiver-of-counsel colloquy. See McLendon,
293 A.3d at 666.
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Appellate counsel indicated that she did not pursue this claim for
strategic reasons as she believed the claim lacked merit. See N.T., 11/9/22,
at 55-56. Leese has not shown that it was arguably meritorious, and based on
the foregoing, appellate counsel had a reasonable basis for not raising it on
direct appeal. Accordingly, Leese is not entitled to relief on this claim.
Order affirmed.
This decision was reached prior to January 2, 2024, with Judge McCaffery’s
participation.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 01/03/2024
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