Com. v. Tomashunas, J.

• Court: Superior Court of Pennsylvania
• Decided: December 9, 2022
• Docket: 539 MDA 2022
• Status: Unpublished

Opinion

J-S41012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN ALLEN TOMASHUNAS : : Appellant : No. 539 MDA 2022

Appeal from the Judgment of Sentence Entered March 4, 2022 In the Court of Common Pleas of Northumberland County Criminal Division at No(s): CP-49-CR-0001243-2019

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY LAZARUS, J.: FILED: DECEMBER 9, 2022

John Allen Tomashunas appeals from the judgment of sentence, entered

in the Court of Common Pleas of Northumberland County, after he pled guilty

to criminal use of a communication facility.1 We dismiss the appeal.

On February 7, 2022, Tomashunas entered a negotiated plea of guilty

to one count of criminal use of a communication facility. On March 4, 2022,

the trial court sentenced Tomashunas to a term of two to five years’

incarceration, plus fines and costs. Tomashunas did not file post-sentence

motions. He filed a timely appeal, followed by a court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. He raises the

following claim for our review: “Was trial counsel ineffective when

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 7512(a). J-S41012-22

[Tomashunas’] plea was unlawfully induced by his prior counsel?” Brief of

Appellant, at 7.

Litigation of ineffectiveness claims is not a proper component of a

defendant’s direct appeal and is presumptively deferred for collateral attack

under the Post Conviction Relief Act (“PCRA”).2 See Commonwealth v.

Holmes, 79 A.3d 562, 578 (Pa. 2013) (establishing deferral rule for

ineffectiveness claims litigated after Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002)). However, the Holmes Court recognized two limited exceptions

to the deferral rule, both falling within the discretion of the trial court. Id. at

563-64. First, the Court held that trial courts retain discretion, in

extraordinary circumstances, to entertain a discrete claim of trial counsel

ineffectiveness if the claim is both apparent from the record and meritorious.

Id. at 563. Second, the Court held that trial courts also have discretion to

entertain multiple or prolix claims of ineffectiveness if there is good cause

shown and the unitary review is preceded by a knowing and express waiver

by the defendant of the right to seek review under the PCRA. Id. at 564.

The facts of the matter sub judice do not fall within the limited

exceptions to the deferral rule set forth in Holmes. The trial court did not

find the claim of ineffective assistance to be meritorious and apparent from

the record as to require immediate vindication. See Statement in Lieu of

Opinion, 5/18/22, at n.1. We agree with the trial court’s finding. Additionally,

2 42 Pa.C.S.A. §§ 9541-9546.

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Tomashunas did not allege any good cause for seeking unitary review of his

ineffectiveness claim and did not state he intended to waive collateral review.

Therefore, neither of the exceptions outlined in Holmes is applicable here,

and Tomashunas may not seek review of his ineffectiveness claim on direct

appeal. Holmes, 79 A.3d 563-64. Accordingly, we dismiss the appeal without

prejudice to Tomashunas’ right to raise this claim in a timely PCRA petition.

See Commonwealth v. Stollar, 84 A.3d 635, 652 (Pa. 2014) (dismissing,

pursuant to Holmes, ineffectiveness claims raised on direct appeal without

prejudice to pursue them on collateral review).

Appeal dismissed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/9/2022

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