Com. v. Mudge, R.

• Court: Superior Court of Pennsylvania
• Decided: July 19, 2022
• Docket: 919 WDA 2021
• Status: Unpublished

Opinion

J-S14023-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICHARD WESLEY MUDGE : : Appellant : No. 919 WDA 2021

Appeal from the PCRA Order Entered July 20, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004022-2012

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McCAFFERY, J.: FILED: JULY 19, 2022

Richard Wesley Mudge (Appellant) appeals from the order entered in the

Allegheny County Court of Common Pleas, denying without a hearing his first,

timely Post Conviction Relief Act1 (PCRA) petition. The underlying judgment

of sentence stems from the 2018 revocation of Appellant’s probation following

a Gagnon II2 hearing. Appellant maintains his prior counsel was ineffective

for not objecting to the lack of a Gagnon I hearing. We affirm.

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9545.

2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973) (discussed infra). J-S14023-22

On June 21, 2012, Appellant pleaded nolo contendere to indecent

assault, two counts of simple assault, harassment, criminal mischief, defiant

trespass, resisting arrest, and public drunkenness.3 The trial court imposed

an aggregate sentence of three months’ intermediate punishment and two

years’ probation, and directed Appellant to comply with sexual offender

registration requirements. N.T., 6/21/12, at 23.

Appellant’s probation was revoked twice, on January 27, 2014, and

November 14, 2016, and he was resentenced by the trial court.

Commonwealth v. Mudge, 731 WDA 2018 (unpub. memo. at 2) (Pa. Super.

Mar. 25, 2019) (direct appeal from third revocation of probation (VOP)

judgment of sentence).

At some point in 2017 or 2018, Probation Officer Heather Bradford filed

a petition to revoke Appellant’s probation for a third time.4 She alleged: (1)

the “3/4 house,” where Appellant resided, reported he refused to submit to a

urine sample on November 22, 2017; (2) Appellant then agreed to the drug

3 18 Pa.C.S. §§ 3126(a)(2), 2701, 2709, 3304(a)(5), 3503(b)(1)(i), 5104, 5505, respectively. At the plea hearing, the Commonwealth provided the following factual summary: on the night of February 3, 2012, Appellant was socializing with three people inside a residence, drinking alcohol. Appellant “became sexually aggressive towards” one person, and four times “forc[ed] his hands down the front of [her] pants,” ultimately touching her vagina. N.T. Nolo Contendere Plea, 6/21/12, at 13-14.

4 The trial docket does not indicate when the probation department initiated these violation of probation proceedings.

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test, but “was caught trying to alter the test by having a vial with a liquid[,]”

and as a result, “was asked to leave the recovery house[;]” and (3) Appellant

admitted to the probation officer on November 28th that he used heroin and

marijuana, which was in violation of his probation conditions. See Probation

Unit’s Gagnon II Violation Report, 5/3/18, at 2.5 The probation violation

report further averred: (1) Appellant was assessed by “Pyramid” to participate

in “intensive out-patient group” therapy, but he “convinced the therapist to

allow him to come to individual one time a week [appointments] due to his

busy schedule[;]” (2) the Probation Office warned Appellant to follow the

treatment provider’s recommendation, but nevertheless he “continued with

treatment once a week;” and (3) “[t]he therapist reported [Appellant] missed

his last 2 sessions, and previous to that, he was . . . resistant and not making

any progress.” Id.

At this juncture, we note Appellant’s issue on appeal pertains to whether

the trial court conducted a Gagnon I hearing. The trial docket entries do not

indicate that one was held, but the trial court has observed, “[I]t appears from

the record that a Gagnon I hearing occurred on February 5, 2018. [I]t further

appears that this hearing was not transcribed for unknown reasons.” PCRA

Ct. Op., 12/13/21, at 4 n.2. The probation department’s May 3, 2018, report

5 This probation violation report is dated May 7, 2018, but bears a “filed” time stamp of, and was entered on the trial docket on, May 3rd. For ease of review, we cite this document with the trial docket date of May 3rd.

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similarly stated a Gagnon I hearing was held on February 5, 2018, and

furthermore, that at this hearing, the court ordered a pre-sentence

investigation report and scheduled a Gagnon II hearing for May 7, 2018.

Probation Unit’s Gagnon II Violation Report at 2.

In any event, the trial court conducted a Gagnon II hearing on May 7,

2018. Appellant was represented by Brandon Ging, Esquire (VOP Counsel).

Appellant did not deny the probation department’s allegations, but cited his

ongoing “drug and alcohol problems.” N.T., Sex Offender Violation H’rg,

5/7/18, at 5.6 The court revoked Appellant’s probation, crediting the

probation officers’ report and noting this was Appellant’s third violation and

“he was on zero tolerance with” the court. Id. at 15-16. The court imposed

a new sentence of: (1) two and a half to five years’ imprisonment on his

indecent assault conviction; (2) a consecutive one to two years’ imprisonment

for one simple assault conviction; and (3) a consecutive two years’ probation

on the other simple assault conviction, to run concurrently with Appellant’s

other probation sentences. Id. at 16-17.

Appellant took a direct appeal to this Court, challenging the

discretionary aspects of his sentence. This Court affirmed on March 25, 2019,

6The cover of the May 7, 2018, hearing transcript identifies the proceedings as a “Sex Offender Violation Hearing.” However, at

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and Appellant did not seek allowance of appeal with our Supreme Court.

Mudge, 731 WDA 2018.

On March 9, 2020, Appellant filed the timely, underlying PCRA petition,

pro se.7 Approximately one year later, on March 11, 2021, the PCRA court

appointed present counsel, Samir Hadeed, Esquire.8 Counsel filed an

amended PCRA petition on April 19, 2021, asserting Appellant was denied

proper Gagnon I and Gagnon II hearings, and VOP Counsel was ineffective

for not objecting to the lack of a Gagnon I hearing or the alleged

“[in]sufficient case of a violation at the Gagnon [II] hearing.” Appellant’s

Amended PCRA Petition, 4/19/21, at 2, 4 (unpaginated).

7 For PCRA purposes, Appellant’s judgment of sentence became final when the 30-day period for seeking allowance of appeal expired — April 24, 2019. See 42 Pa.C.S. § 9545(b)(3) (judgment becomes final at conclusion of direct review or at expiration of time for seeking the review); Pa.R.A.P. 1113(a) (petition for allowance of appeal shall be filed with Pennsylvania Supreme Court within 30 days of Superior Court order). Appellant then generally had one year, or until April 24, 2020, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1) (PCRA petition shall be filed within one year of the date the judgment becomes final). As stated above, Appellant filed the underlying pro se petition on March 9, 2020.

8 We note that following Appellant’s pro se PCRA petition, he filed, on August 24, 2020, a pro se petition to enforce his nolo contendere plea agreement. See Commonwealth v. Partee, 86 A.3d 245, 247 (Pa. Super. 2014) (petition to enforce plea agreement falls outside ambit of PCRA). Appellant claimed: (1) in pleading nolo contendere, he was not required to admit he committed a sex offense; and (2) accordingly, the trial court erred in requiring him to complete sex offender treatment. See Commonwealth v. Mudge, 1083 WDA 2020 (unpub. memo. at 3-4) (Pa. Super. Dec. 7, 2021). The trial court denied relief on September 14, 2020, and Appellant appealed pro se to this Court, which affirmed on December 7, 2021.

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On May 27, 2021, the PCRA court issued Pa.R.Crim.P. 907 notice of its

intent to dismiss the petition without a hearing. Appellant filed a counseled

response, reiterating his PCRA petition claims. The court issued the underlying

order denying the petition on July 20, 2021. Appellant timely appealed and

filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal.

Appellant presents one issue for our review:

Whether the trial court erred in dismissing Appellant’s petition without a hearing when Appellant alleged that his rights were violated under Gagnon v. Scarpelli and its progeny and there was at least a prima facie showing that there was no Gagnon [I] or [II] hearing compliant with Gagnon v. Scarpelli and his counsel failed to bring this up in a subsequent proceeding?

Appellant’s Brief at 2.

We note the relevant standard of review and general principles

governing claims of ineffective assistance of counsel:

Our standard of review of the denial of a PCRA petition is limited to examining whether the court’s determination is supported by the evidence of record and free of legal error. This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. . . .

To prevail on a claim alleging counsel’s ineffectiveness under the PCRA, [a petitioner] must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel’s course of conduct was without a reasonable basis designed to effectuate his client’s interest; and (3) that he was prejudiced by counsel’s ineffectiveness, i.e. there is a reasonable probability that but for the act or omission in question the outcome of the proceedings would have been different.

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Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (citations

omitted).

For ease of review, we also set forth, at this juncture, the relevant law

concerning Gagnon I and Gagnon II VOP hearings. “When a . . . probationer

is detained pending a revocation hearing, due process requires a

determination at a pre-revocation hearing, a Gagnon I hearing, that probable

cause exists to believe that a violation has been committed.”

Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000) (citation

and emphasis omitted). “[T]he Gagnon I hearing is similar to the preliminary

hearing afforded all offenders before a Common Pleas Court trial: the

Commonwealth must show probable cause that the violation was committed.”

Commonwealth v. Davis, 336 A.2d 616, 621 (Pa. Super. 1975).

If the trial court finds probable cause at the Gagnon I hearing, “a

second, more comprehensive hearing, a Gagnon II hearing, is required

before a final revocation decision can be made.” Ferguson, 761 A.2d at 617.

The Gagnon II hearing entails two decisions: (1) first, whether the evidence

presented “contain[s] ‘probative value’” that the probationer violated the

conditions of their probation; and (2) if so, should the probationer “be

recommitted to prison or should other steps be taken to protect society and

improve chances of rehabilitation[.]” Id. (citations omitted). “[T]he Gagnon

II hearing is more complete than the Gagnon I hearing in affording the

probationer additional due process safeguards,” including written notice of the

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alleged probation violations, disclosure of the evidence against them, and the

right to confront adverse witnesses. Id.

In Commonwealth v. Perry, 385 A.2d 518 (Pa. Super. 1978), this

Court explained:

If before his . . . probation is revoked a . . . probationer has not complained of the lack of a Gagnon I hearing, he has already suffered the harm that the omission allegedly caused[. S]ince the substance of the revocation proceeding is not affected by the omission, the . . . probationer will not be heard to complain later.

This is analogous to the rule that objections to defects in a preliminary hearing . . . or to the denial of a preliminary hearing must be raised by a motion to quash the indictment; otherwise, all such procedural and “non-jurisdictional” defects are waived.

The United States Court of Appeals for the Second Circuit drew this same analogy in United States v. Companion, 545 F.2d 308 (2d Cir. 1976):

[A] defendant’s status after conviction is the result of that conviction, not the result of his pretrial detention; the court lacks power “to remedy, retrospectively, . . . denial of a ‘fundamental right’ which has no bearing on appellant’s present incarceration”; the remedy of release from custody “is one to be sought prior to conviction.”

This rationale is directly applicable (in a probation revocation case). Appellant’s present incarceration stems from a decision by (the revoking court) made after a hearing that was adequate in all respects; the denial of appellant’s preliminary hearing right no longer has any relation to his incarceration. . . . To order appellant’s release from custody at this time would be to grant an extreme remedy for a deprivation from which appellant is no longer suffering. This remedy should have been sought at the time that the deprivation of rights was actually occurring.

Perry, 385 A.2d at 520 (some citations omitted).

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Appellant avers he was denied proper Gagnon I and Gagnon II

hearings. We address each seriatim. With respect to a Gagnon I hearing,

the sum of his argument is: he made “a prima facie showing that [he] did not

have a Gagnon I” hearing; “[t]here would be no reasonable strategy for

counsel’s failure to object to” this violation of Appellant’s rights; counsel “was

ineffective for failing to preserve this issue[;]” and Appellant was prejudiced.

Appellant’s Brief at 4, 6. No relief is due.

First, as Appellant concedes, it is not clear from the record whether there

was a Gagnon I hearing. See Appellant’s Brief at 3 (arguing he “raised at

least a prima facie case that he never had a Gagnon I” hearing). Although

Appellant broadly avers VOP counsel had no reasonable strategy for not

objecting to the lack of a Gagnon I hearing, and that he suffered prejudiced,

Appellant fails to explain what, exactly, he was denied. See id. at 6.

Appellant does not cite any particular claim of injury beyond the vague,

possible lack of a Gagnon I hearing.9 He does not allege he was denied any

procedural or substantive due process that was not cured by the Gagnon II

hearing. Indeed, the Gagnon II hearing, held on May 7, 2018, provided more

9 We remind counsel that the failure to present relevant discussion and argument may result in waiver of appellate claims. See Commonwealth v. Price, 876 A.2d 988, 996 (Pa. Super. 2005).

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procedural safeguards than required of a Gagnon I proceeding.10 See Perry,

385 A.2d at 520. Accordingly, no relief is due on this claim.

Next, Appellant avers he was denied a proper Gagnon II hearing on

the following grounds. Although the PCRA court’s opinion stated “that

Appellant ‘Lied about [using drugs while at three-quarter house], [and]

attempted to fake a drug screen[,]’” there was no such evidence at the

Gagnon II hearing. Appellant’s Brief at 5, citing PCRA Ct. Op. at 5. Appellant

extrapolates from this lack of evidence a conclusion that he “was not provided

a proper Gagnon [II]” hearing. Appellant’s Brief at 5. No relief is due.

First, we reject any argument that the PCRA court’s December 2021

mis-citation to evidence, that was allegedly not presented at the Gagnon II

hearing, somehow renders the May 2018 Gagnon II hearing invalid.

Appellant provides no legal support for such logic. Second, we reject his

insistence that because Probation Officer Bradford did not testify at the

10 The PCRA court reasoned: “Appellant claims that he did not have a proper Gagnon I hearing. This claim is waived. . . . At the Gagnon II hearing, counsel did not object to any defect or errors in the Gagnon I hearing. The failure to raise the issue at that time precludes its consideration now.” PCRA Ct. Op. at 3-4.

We would agree that VOP Counsel’s failure to object to the lack of a Gagnon I hearing resulted in waiver during the VOP proceedings and on direct appeal. See Perry, 385 A.2d at 520. However, Appellant’s present claim is that VOP Counsel was ineffective for not objecting. This issue was properly raised, for the first time, in Appellant’s PCRA petition. Nevertheless, “[t]his Court may affirm a PCRA court’s decision on any grounds if the record supports it.” Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

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Gagnon II hearing, she did not present any evidence. Instead, her May 3,

2018, violation report, which set forth the VOP allegations, was properly

before the court for review. To the extent Appellant is challenging the

sufficiency of the evidence at the Gagnon II hearing, such a claim is not

cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(3) (PCRA petitioner

must prove by preponderance of the evidence that allegation of error has not

been waived); Price, 876 A.2d at 995 (challenge to sufficiency of evidence to

support sexually violent predator classification is not cognizable under PCRA).

Lastly, Appellant suggests “it does not appear [in the Gagnon II

hearing transcript that Officer] Bradford was sworn in[.]” Appellant’s Brief at

5. This claim was not raised in Appellant’s amended PCRA petition or Rule

1925(b) statement and is thus waived. See Pa.R.A.P. 1925(b)(3)(iv) (any

issue not included in Rule 1925(b) statement shall be deemed waived);

Commonwealth v. Reid, 99 A.3d 470, 494 (Pa. 2014) (claim not raised in

PCRA petition is waived for appellate review).

For the forgoing reasons, we conclude Appellant has failed to show the

PCRA court erred in denying his petition. See Timchak, 69 A.3d at 769. We

thus affirm the order denying relief.

Order affirmed.

Judgment Entered.

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Joseph D. Seletyn, Esq. Prothonotary

Date: 07/19/2022

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