Com. v. Schmidt, J.

• Court: Superior Court of Pennsylvania
• Decided: August 6, 2021
• Docket: 1894 EDA 2020
• Status: Unpublished

Opinion

J-S21012-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSEPH SCHMIDT : : Appellant : No. 1894 EDA 2020

Appeal from the PCRA Order Entered August 19, 2020 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0005579-2018

BEFORE: BOWES, J., OLSON, J., and COLINS, J.*

MEMORANDUM BY BOWES, J.: FILED AUGUST 6, 2021

Joseph Schmidt appeals from the August 19, 2020 order denying him

relief under the Post-Conviction Relief Act (“PCRA”). Counsel has filed a brief

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc),1

together with an application to withdraw. After thorough review, we grant

counsel’s application to withdraw and affirm the order denying PCRA relief.

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* Retired Senior Judge assigned to the Superior Court.

1 Counsel styled the brief filed on Appellant’s behalf on appeal as one filed pursuant to Anders v. California, 386 U.S. 738 (1967), rather than as a brief pursuant to Turner/Finley. We find the procedure acceptable as the requirements of Anders are more arduous than Turner/Finley. See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004) (recognizing that direct appeal procedure imposes stricter requirements than Turner/Finley). We will refer to the brief herein as a Turner/Finley brief. J-S21012-21

A short summary of the underlying facts suffices for our review.

Appellant was charged with aggravated assault, two counts of simple assault,

one count each of recklessly endangering another person (“REAP”),

harassment, unlawful restraint, and false imprisonment arising from his

August 3, 2018 assault upon his live-in girlfriend, Julie Darling. After slapping

her repeatedly about her head and body, hitting her, and pulling her hair,

Appellant punched her in the face, fracturing her orbital bone and right eye

socket. As a result of the injuries, Ms. Darling could not work for a month and

required specialized medical treatment to care for her eye. See Stipulated

Bench Trial, 6/4/19, Exhibit C-1 (Stipulated Facts).

On June 4, 2019, the date scheduled for a jury trial, Appellant proceeded

to a stipulated bench trial on the aggravated assault charge, in return for

which the Commonwealth withdrew the six remaining charges. There was no

agreement as to sentence. At the time, both the Commonwealth and defense

counsel believed that Appellant’s prior record score (“PRS”) was one, and that

the standard minimum sentence for aggravated assault with a PRS of one was

forty-two to sixty months of imprisonment. At the stipulated bench trial, an

on-the-record jury trial waiver colloquy was conducted. Appellant stated that

he understood his right to a jury trial and what he was foregoing by agreeing

to a stipulated bench trial. Appellant also advised the court that he did not

want to exercise his other options of a bench trial or a guilty plea.

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The court found Appellant’s waiver of both his Fifth Amendment right

against self-incrimination and right to a jury trial to be knowing, intelligent,

and voluntary. Id. at 17. Following a proffer on the aggravated assault

charge, the court concluded that the Commonwealth had met its burden of

proof. Accordingly, the court found Appellant guilty of that charge, and nolle

prossed the remaining charges. Sentencing was deferred to permit a

presentence investigation (“PSI”).

The PSI subsequently revealed that Appellant’s PRS was not one, but

rather that it fell within the repeat felony one and felony two offender (“RFEL”)

category. The standard range minimum sentence for aggravated assault with

a PRS of RFEL was eighty-four to 102 months. In light of the mutual mistake,

however, defense counsel and the Commonwealth negotiated a sentence of

forty-eight to ninety-six months of imprisonment, which was a standard range

sentence for an individual convicted of aggravated assault with a PRS of one.2

At the October 1, 2019 sentencing hearing, the trial court questioned

Appellant to ensure that he understood that his PRS of RFEL substantially

increased the standard range minimum sentence for aggravated assault to

which he was exposed. Defense counsel placed on the record the

2 The Commonwealth earlier had offered Appellant a negotiated plea based on

its belief that his PRS was one. If Appellant pled guilty to aggravated assault, the Commonwealth would withdraw all other charges and he would be sentenced to four to eight years of imprisonment. Appellant rejected the Commonwealth’s offer.

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misunderstanding involving Appellant’s PRS, and Appellant acknowledged his

understanding that “the low end” of the range of sentence based on his PRS

as a RFEL was seven years of imprisonment. N.T. Sentencing Hearing,

10/1/19, at 7. Appellant confirmed that counsel had provided him with post-

sentence procedures, and that he had signed and initialed the pages. Id.

Appellant, in response to further questioning by the court, stated that he

wanted to enter the sentencing agreement, and acknowledged that he was

getting a significant reduction in sentence by virtue of the agreement. Id. at

8. Based on the foregoing, the trial court found that Appellant knowingly,

voluntarily, and intelligently agreed to the negotiated sentence, and accepted

the agreement. The court imposed the sentence of four to eight years of

imprisonment, with credit for time served, and orally advised Appellant again

of his post-sentence rights. Id. at 15.

Appellant did not file a timely post-sentence motion or a notice of

appeal. However, in pro se correspondence to the court bearing the date of

October 8, 2019, Appellant stated that counsel had abandoned him and asked

that the letter be treated as a post-sentence motion and that he be permitted

to withdraw his guilty plea. The court received the correspondence on October

15, 2019, and immediately forwarded it to trial counsel. See PCRA Court

Opinion, 1/22/21, at 6 n.9.

On February 21, 2020, Appellant wrote to the court seeking

reinstatement of his appellate rights nunc pro tunc. The court treated the

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correspondence as a PCRA petition, appointed Attorney Matthew W. Quigg as

PCRA counsel, and forwarded the correspondence to counsel. See Order,

2/25/20, at 1. PCRA counsel filed an amended PCRA petition on Appellant’s

behalf, which he styled as a Petition to Reinstate Post-Sentence and Appeal

Rights. Appellant averred therein that trial counsel was ineffective because

he failed to file a post-sentence motion raising two issues that Appellant asked

him to raise, namely: (1) that Appellant entered into the stipulated jury trial

under the counseled mistaken belief that he possessed a PRS of one, when he

was actually a RFEL, “thereby greatly increasing the applicable sentencing

guidelines[;]” and (2) that Appellant wished to seek modification of his

sentence. See Petition to Reinstate Post-Sentence and Appeal Rights,

7/28/20, at 3 ¶ 11(a) and (b). Appellant also alleged that counsel failed to

file the appeal he requested. Id. at ¶ 14. Appellant alleged that due to trial

counsel’s ineffective assistance, his post-sentence motion and direct appeal

rights should be reinstated nunc pro tunc.

The PCRA court held an evidentiary hearing on August 18, 2020, at

which Appellant and trial counsel offered contradictory factual testimony about

the allegations in the petition. Following the PCRA hearing, the court

dismissed Appellant’s amended petition.

Appellant filed a notice of appeal and complied with the PCRA court’s

subsequent order to file a concise statement of errors complained of on appeal

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pursuant to Pa.R.A.P. 1925(b).3 The trial court penned its Rule 1925(a)

opinion. PCRA counsel sent Appellant a no-merit letter on April 13, 2021, and

filed a petition to withdraw pursuant to Turner/Finley with this Court,

together with a brief. The petition was referred to the panel for disposition.

Counsel identifies one issue that Appellant wishes us to review:

I. Did the PCRA court err in denying Appellant post-conviction relief where Appellant testified that he directed trial/sentencing counsel to file post-sentence motions and notice of appeal and trial/sentencing counsel failed to file post-sentence motions or notice of appeal to the Superior Court?

Turner/Finley brief at 4 (unnecessary capitalization omitted).

Where, as here, counsel seeks to withdraw pursuant to Turner/Finley,

we must first determine if he has complied with the pertinent requirements.

First, counsel must conduct an independent review of the record.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Thereafter,

counsel must file a “no-merit” letter detailing the nature and extent of his

review and list each issue the petitioner wishes to have examined, explaining

why those issues are meritless. He must file a petition to withdraw and

provide Appellant with copies of the petition and no-merit letter. In ruling on

3 PCRA counsel failed to file a timely appeal from the PCRA court’s dismissal

of Appellant’s PCRA petition. However, counsel filed a petition to reinstate Appellant’s PCRA appellate rights nunc pro tunc, and the Commonwealth notified the PCRA court that it had no objection. By order of October 7, 2020, the court reinstated Appellant’s PCRA appellate rights, and counsel complied with its direction to file a notice of appeal within thirty days.

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whether counsel may withdraw, the court must conduct its own independent

evaluation of the record and agree with counsel that the petition is without

merit. See Pitts, supra at 876 n.1; Commonwealth v. Rykard, 55 A.3d

1177, 1184 (Pa.Super. 2012).

By letter dated April 13, 2021, counsel informed Appellant that after

thorough review of the record, his claim for relief under the PCRA “lacks

arguable merit.” See No-Merit Letter, 4/13/21, at 1. He explained why the

arguments Appellant wished to advance were meritless. Counsel enclosed a

copy of his motion to withdraw, as well as transcripts from the PCRA hearing,

stipulated trial, and sentencing. He advised Appellant that he could hire

private counsel or represent himself on appeal.

Counsel addressed in the letter and in the brief filed in this Court the

issues set forth in Appellant’s PCRA petition and Rule 1925(b) concise

statement. Counsel explained why they were meritless, represented that he

had reviewed the record, and concluded that the appeal was wholly frivolous.

We find that counsel complied with the requirements of Turner/Finley.

Hence, we will proceed with our independent review of the record for purposes

of determining whether the appeal is indeed meritless.

In an appeal from the PCRA court’s determination, we review “the

court’s findings of fact to determine whether they are supported by the record,

and review its conclusions of law to determine whether they are free from

legal error.” Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa.Super.

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2014) (citation omitted). In doing so “[w]e review an order dismissing a

petition under the PCRA in the light most favorable to the prevailing party at

the PCRA level.” Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super.

2010).

Appellant’s issue implicates trial counsel’s effectiveness. In order to

prevail on such claims, a petitioner “must plead and prove that (1) the claim

of ineffective assistance has arguable merit; (2) counsel has no reasonable

strategic basis for the action or inaction designed to further the interests of

the [petitioner]; and (3) the [petitioner] was prejudiced such that there is a

reasonable probability that but for counsel’s action or inaction, the outcome

of the proceeding would have been different.” Commonwealth v. Diaz, 226

A.3d 995, 1018 n.1 (Pa. 2020) (citing Strickland v. Washington, 466 U.S.

668 (1984); Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)).

At the PCRA hearing, Appellant testified that he agreed to the stipulated

bench trial based on counsel’s representation that he had a PRS of one and

that he would be sentenced to time served if he admitted his guilt. He

maintained that he would have pursued a jury trial had he known that a time-

served sentence was out of reach.

Trial counsel acknowledged that he and the Commonwealth operated

under the mistaken belief that Appellant’s PRS was one, and that he made

that representation to Appellant. However, trial counsel specifically stated, “I

would have never [said that he would be sentenced to time served] because

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going by the facts of the case, knowing the testimony that the complaining

witness was going to give, and again knowing the other facts of the case, I

would have never said that a time served sentence would have been likely or

honored.” N.T. PCRA Hearing, 8/18/20, at 9-10.

The PCRA court found that “trial counsel credibly testified that he never

informed [Appellant] that he would receive a time-served sentence even when

the parties were operating under the assumption that [Appellant’s] prior

record score was one (1).” PCRA Court Opinion, 1/22/21, at 11. Thus, it

found that trial counsel did not represent that Appellant would be sentenced

to time served as an inducement to enter the stipulated bench trial. 4 The

PCRA court found further that Appellant’s responses to the sentencing colloquy

belied any claim that his decision to proceed with a stipulated bench trial was

not voluntary, knowing, or intelligent. Id. at 9. According to the PCRA court,

“[Appellant] never indicated any displeasure with his negotiated sentence, nor

did he express any confusion regarding the effects of the recently discovered

error in the prior record score.” Id. at 11.

Counsel and Appellant offered contradictory testimony at the PCRA

hearing as to whether Appellant asked counsel to file a post-sentence motion.

Counsel testified that he learned for the first time that Appellant wanted to

4 We note that the standard guideline sentence for aggravated assault and a

PRS of one was forty-two to sixty months of imprisonment. At the time of the stipulated bench trial, Appellant had been incarcerated for approximately ten months.

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file such a motion when he received a copy of the letter forwarded by the trial

court long after the ten-day period for filing such motions had expired. See

N.T. PCRA Hearing, 8/18/20, at 39. Appellant testified that he instructed trial

counsel to withdraw his “guilty plea” immediately prior to sentencing but

counsel ignored this request. Id. at 15. Trial counsel testified, however, that

Appellant knew he could not get a more favorable sentence than four to eight

years of imprisonment, and that was the reason why Appellant did not express

any reservation at sentencing to the agreed-upon sentence. See id. at 35.

Based on the foregoing, the PCRA court found credible trial counsel’s

testimony that Appellant did not ask him to file a post-sentence motion. PCRA

Court Opinion, 1/22/21, at 8. Furthermore, the PCRA court reasoned that

even if the forwarded letter to counsel could be construed as a valid request

for a post-trial motion that counsel ignored, Appellant could not establish

prejudice due to counsel’s failure to act as the court would not have granted

such a motion. Id. Moreover, the PCRA court found no prejudice as Appellant

“benefitted from the prior record score error and received a sentence which

was far more favorable that he would have received otherwise.” Id.

Additionally, the PCRA court discredited Appellant’s claim that he asked

counsel to file an appeal. The court found that “[a]lthough [Appellant] claimed

that he requested trial counsel to file an appeal, trial counsel credibly testified

that [Appellant] failed to make such a request. Id.

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In short, the PCRA court did not believe Appellant’s version of the

events. The law is well settled that “[t]he findings of a post-conviction court,

which hears evidence and passes on the credibility of witnesses, should be

given great deference.” Commonwealth v. Jones, 912 A.2d 268, 293 (Pa.

2006). See also Commonwealth v. Widgins, 29 A.3d 816, 820 (Pa.Super.

2011) (holding questions of credibility in PCRA proceedings are the exclusive

province of PCRA judge as factfinder). “In addition, where a PCRA court’s

credibility determinations are supported by the record, they are binding on

the reviewing court.” Commonwealth v. White, 734 A.2d 374, 381 (Pa.

1999).

In sum, the PCRA court expressly found that counsel did not represent

to Appellant that he would get a time-served sentence if he proceeded to a

stipulated bench trial, even when he believed that Appellant had a PRS of one.

Furthermore, the court credited trial counsel’s testimony that Appellant did

not ask him to file a post-sentence motion or a direct appeal. We are bound

by those credibility determinations as they are supported by the record.

Moreover, the court found that Appellant could not establish prejudice as any

post-sentence motion would have been unsuccessful. The PCRA court noted

that Appellant agreed to a stipulated trial and no agreement as to sentence

believing he had a PRS of one. However, the court reasoned that Appellant

was in no worse position at sentencing because he received an agreed-upon

sentence that was within the standard range for a PRS of one. In light of the

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fact that Appellant’s PRS was actually RFEL, the court concluded that Appellant

benefitted from the mistake as he received a sentence well below the

mitigated range for an individual with a PRS of RFEL.

Following our independent review of the record, we concur with PCRA

counsel’s assessment that there are no non-frivolous issues for appeal and

that the PCRA court did not abuse its discretion in denying relief. Our review

has not revealed any other non-frivolous issues that could have been raised.

Hence, we affirm the PCRA court’s order and grant counsel’s petition to

withdraw.

Application to Withdraw of Matthew W. Quigg, Esquire is granted. Order

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/6/2021

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