Com. v. Oree, J.

• Court: Superior Court of Pennsylvania
• Decided: August 8, 2023
• Docket: 2029 EDA 2021
• Status: Unpublished

Opinion

J-S11004-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOEL OREE : : Appellant : No. 2029 EDA 2021

Appeal from the PCRA Order Entered April 15, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000859-2014

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

MEMORANDUM BY OLSON, J.: FILED AUGUST 8, 2023

Appellant, Joel Oree, appeals from an order entered on April 15, 2021

in the Criminal Division of the Court of Common Pleas of Philadelphia County

that denied his petition filed pursuant to the Post-Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

Because the issue in this appeal focuses exclusively upon the advice

given by trial counsel concerning Appellant’s election to proceed by way of a

waiver trial, and not before a jury, we shall dispense with a recitation of the

historical facts underlying Appellant’s convictions. Instead, we incorporate

our prior recitation of the relevant events, which we set forth in the context

of direct appeal. See Commonwealth v. Oree, 2017 WL 2259028, *1 (Pa.

Super. 2017) (unpublished memorandum).

At the conclusion of a waiver trial on February 5, 2015, the court found

Appellant guilty of rape, involuntary deviate sexual assault (IDSI), sexual J-S11004-23

assault, indecent exposure, and indecent assault. Thereafter, on August 21,

2015, the trial court sentenced Appellant to seven to 14 years' incarceration

followed by six years' probation for the rape conviction, and two concurrent

terms of 10 years' probation for the IDSI and sexual assault convictions. All

of Appellant’s terms of probation were imposed concurrently and no further

penalty was imposed for Appellant’s other convictions.

Appellant timely filed a notice of appeal after the trial court denied his

post-sentence motion. On May 23, 2017, this Court held that the trial court

erred in imposing a separate sentence on Appellant’s sexual assault

conviction, which should have merged with the rape and IDSI convictions.

See Oree, 2017 WL 2259028, at *3. We found remand to be unnecessary,

however, because the trial court imposed concurrent sentences on the sexual

assault and IDSI convictions and vacating the judgment of sentence for sexual

assault did not affect the overall sentencing scheme. See id.

Appellant filed his first PCRA petition on October 30, 2017. On January

31, 2019, appointed counsel filed an amended petition alleging that trial

counsel was ineffective in advising Appellant to waive his right to a jury trial.

The PCRA court convened an evidentiary hearing on February 7, 2020.

Appellant, his daughter, and trial counsel testified at the hearing. Both

Appellant and his daughter testified that they told trial counsel that Appellant

wished to proceed before a jury. Appellant conceded that, on the day of trial,

he executed a written waiver and orally informed the trial court that he wanted

a bench trial. Appellant explained, however, that he made this election on the

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advice of trial counsel and felt that he had no alternative. Trial counsel

testified that he explained his fee structure to both Appellant and his daughter

and made clear to them that he could not represent Appellant at a jury trial,

given the financial resources available to Appellant and his family. Trial

counsel also testified that he advised both Appellant and his daughter that

Appellant would be ably represented at either a jury trial or a waiver trial if he

accepted the appointment of a public defender. The PCRA court credited the

testimony of trial counsel and, on April 15, 2021, dismissed Appellant’s

petition. Eventually, Appellant filed a notice of appeal on September 1, 2021.

Appellant raises the following question for our review.

Did the [PCRA] court err in dismissing Appellant’s post-conviction relief petition where the record indicated that trial counsel was ineffective for misadvising Appellant to waive his right to a jury trial because Appellant could not afford [one]?

Appellant’s Brief at 3.

We first consider whether we have jurisdiction over the merits of

Appellant’s claim, a question we may raise sua sponte. See Commonwealth

v. Valentine, 928 A.2d 346, 349 (Pa. Super. 2007). Appellant’s judgment of

sentence became final for purposes of the PCRA on June 22, 2017, 30 days

after this Court affirmed the judgment on May 23, 2017, within the context of

direct appeal. See 42 Pa.C.S.A. § 9545(b)(3) (“For purposes of [the PCRA],

a judgment becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

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review.”). On October 30, 2017, Appellant filed his first, timely PCRA petition.

Following several continuances, the filing of amended petitions, and an

evidentiary hearing, the PCRA court dismissed Appellant’s petition on April 15,

2021. No appeal was filed within 30 days.

On June 1, 2021, counsel for Appellant filed a second PCRA petition,

seeking reinstatement of Appellant’s right to appeal the denial of his original

petition. Appellant’s second petition alleged that Appellant requested an

appeal of the order dismissing his first petition, but no appeal was taken due

to clerical error. On August 11, 2021, the PCRA court granted Appellant’s

second petition and reinstated Appellant’s right to appeal the April 15, 2021

dismissal order. Counsel for Appellant then filed a notice of appeal on

September 1, 2021.

Appellant’s second petition was patently untimely, as it was filed more

than one year after Appellant’s judgment of sentence became final on June

22, 2017. See 42 Pa.C.S.A. § 9545(b)(1) (“[a]ny petition under [the PCRA],

including a second or subsequent petition, shall be filed within one year of the

date the judgment becomes final”). Here, Appellant asked counsel to appeal

the dismissal of his first petition, but counsel failed to do so owing to clerical

error. Appellant’s second petition alleged that the failure to appeal was

unknown to Appellant, which implicated one of the timeliness exceptions

included in the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Our Supreme Court

has recognized that the discovery of counsel’s ineffectiveness can constitute

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an unknown fact that triggers the timeliness exception set forth at Section

9545(b)(1)(ii). See Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa.

2007) (observing that the failure of counsel to file a requested appeal “is the

functional equivalent of having no counsel at all,” which “requires a finding

of prejudice”) (emphasis in original). In addition, Appellant filed his second

PCRA petition on June 1, 2021, which was within one year of his discovery

that counsel failed to appeal from the April 15, 2021 dismissal order. See 42

Pa.C.S.A. § 9545(b)(2). The PCRA court granted Appellant’s second petition

on August 11, 2021 and counsel filed a notice of appeal on September 1,

2021, within 30 days of the court’s reinstatement order. See Pa.R.A.P. 903

(notice of appeal shall be filed within 30 days after entry of order from which

appeal is taken). Under these circumstances, we conclude that Appellant

validly invoked an exception to the PCRA’s one-year time bar and that we

have jurisdiction to reach the merits of this timely-filed PCRA appeal.1

____________________________________________

1 Generally, Pennsylvania courts do not permit counsel to litigate his own ineffectiveness. See Commonwealth v. Spotz, 18 A.3d 244, 329 n.52 (Pa. 2011). Counsel here, however, is not “litigating” the clerical error which led to his failure to timely appeal the April 15, 2021 dismissal order. Instead, counsel’s self-accusation was clearly meritorious, which is confirmed by the June 1, 2021 PCRA court order that granted relief, and centered on a relatively insignificant feature of these proceedings. In short, we see no reason to view counsel’s self-accusation as an impediment to appellate review under the circumstances before us. See Commonwealth v. Bond, 819 A.2d 33, 39 n.2 (Pa. 2002) (observing that it would be inappropriate to remove counsel based upon mere boilerplate assertions of their own incompetence).

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Appellant claims that trial counsel was ineffective in advising Appellant

to waive his right to a jury trial, given that counsel could not represent

Appellant before a jury in exchange for the financial resources available to

Appellant, and in allegedly failing to advise Appellant that he could retain other

counsel. This claim merits no relief.

We apply the following standard of review to an order denying or

dismissing a petition for collateral relief.

When reviewing the denial of a PCRA petition, we must determine whether the PCRA court's order is supported by the record and free of legal error. Generally, we are bound by a PCRA court's credibility determinations. However, with regard to a court's legal conclusions, we apply a de novo standard.

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (quotation

marks and quotations omitted). The findings of the PCRA court are “viewed

in the light most favorable to the prevailing party.” Commonwealth v.

Duffy, 889 A.2d 56, 61 (Pa. 2005). Moreover, these findings “will not be

disturbed unless there is no support for the findings in the certified record.”

Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017).

Also,

In order to be eligible for PCRA relief, the petitioner must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found in Section 9543(a)(2), which includes the ineffective assistance of counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).

It is well-established that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him. To prevail on an ineffectiveness claim, the

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petitioner has the burden to prove that (1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance. The failure to satisfy any one of the prongs will cause the entire claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa. Super. 2016)

(quotation marks, quotations, and citations omitted).

Turning to the merits of Appellant’s precise claim, our Supreme Court

has observed that:

[t]he essential elements of a jury waiver, though important and necessary to an appreciation of the right, are nevertheless simple to state and easy to understand. The . . . essential ingredients, basic to the concept of a jury trial, are the requirements that the jury be chosen from members of the community (a jury of one's peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.

Commonwealth v. Mallory, 941 A.2d 686, 696–697 (Pa. 2008) (footnote,

citations, and quotation omitted).

At trial, Appellant executed a written waiver colloquy and responded in

the affirmative when asked whether he knew and understood the critical

components of a jury trial, whether he discussed these issues with counsel,

whether he comprehended the importance of the rights subject to waiver, and

whether he intended to waive those rights freely. Detailed, written waivers

that are signed and presented in court are generally accorded prima facie

validity. See id. at 704.

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“When a presumptively-valid waiver is collaterally attacked under the

guise of ineffectiveness of counsel, it must be analyzed like any other

ineffectiveness claim. Such an inquiry . . . must focus on the totality of

relevant circumstances.” Id. at 698. “Those circumstances include the

defendant's knowledge of and experience with jury trials, his explicit written

waiver (if any), and the content of relevant off-the-record discussions counsel

had with his client.” Id. “Counsel's advice to waive a jury trial can be the

source of a valid claim of ineffective assistance of counsel only when [] counsel

interferes with his client's freedom to decide to waive a jury trial [or when a

defendant] can point to specific advice of counsel so unreasonable as to vitiate

the knowing and intelligent waiver of his right.” See Commonwealth v.

Hooks, 394 A.2d 528, 532 (Pa. 1978). To demonstrate prejudice, the

defendant must show a reasonable probability that, but for counsel's

constitutionally deficient representation, the outcome of the waiver

proceeding would have been different, i.e., that the defendant would not have

waived his right to a jury trial. See Mallory, 941 A.2d at 697.

Based upon the totality of circumstances established by the certified

record, we agree with the PCRA court that Appellant is not entitled to relief

because he knowingly and voluntarily relinquished his right to a jury trial and

understood his options when he retained private counsel who could not

represent him at a jury trial. There was ample testimony that allowed the

PCRA court to conclude that Appellant was familiar with the criminal justice

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system since he previously used the services of the public defender’s office.

Based upon this evidence, the court inferred that Appellant understood “how

to contact the public defender and retain their services.” Trial Court Opinion,

7/29/22, at 5. In fact, Appellant admitted he was aware he could switch

attorneys. See N.T. PCRA Hearing, 2/7/20, at 18. Rather than accept

representation by the public defender (who could represent Appellant at a jury

trial), Appellant knowingly and willingly declined their services and hired

private counsel who explained that he could not represent Appellant at a jury

trial, given the financial resources Appellant and his family could afford to

spend on this matter. In short, Appellant asks us to reweigh the testimony

and reject the well-supported findings of the PCRA court. We are unwilling to

do so. Since counsel did not interfere with Appellant’s freedom to waive a

jury trial and since Appellant has pointed to no specific advice of counsel that

vitiated a knowing and intelligent waiver of Appellant’s right to a jury trial, we

affirm the order that denied Appellant’s petition for collateral relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/8/2023

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