Com. v. Weidman, C.
Opinion
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
CLINT TROY WEIDMAN Appellant No. 360 MDA 2014
Appeal from the Order Entered January 3, 2014 In the Court of Common Pleas of Lebanon County Criminal Division at No: CP-38-CR-0000647-2010
BEFORE: LAZARUS, MUNDY, and STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED NOVEMBER 13, 2014 Appellant, Clint Troy Weidman, appeals from the trial court’s January 2, 2014 order dismissing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
A jury convicted Appellant of corrupt organizations, retail theft, conspiracy, and theft by deception in connection with Appellant’s participation in a theft ring that repeatedly stole merchandise from a Wal- Mart in Lebanon County. On April 27, 2011 the trial court imposed six to fourteen years of incarceration and ordered Appellant to make restitution to Wal-Mart. The trial court denied Appellant’s post-sentence motions on August 16, 2011, and Appellant filed a timely notice of appeal on September 14, 2011. This Court affirmed the judgment of sentence on April 9, 2012.
The Pennsylvania Supreme Court denied allowance of appeal on September 11, 2012.
On December 18, 2012, Appellant filed a timely pro se PCRA petition, his first. Appointed counsel filed an amended petition on April 1, 2013 alleging ineffective assistance of counsel. The PCRA court conducted a hearing on July 31, 2013 at which Appellant, Appellant’s trial attorneys, and Appellant’s mother testified. Subsequently, on October 9, 2013, appointed PCRA counsel elected to proceed pursuant to Commonweatlh v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Appellant did not respond to counsel’s Turner/Finley letter. On October 18, 2013, the PCRA court entered an order permitting counsel to withdraw. Appellant took no further action prior to the PCRA court’s January 2, 2014 order dismissing Appellant’s petition. He filed a timely pro se notice of appeal on February 3, 2014.
Appellant raises two issues for our review.
A. Did the PCRA court err in granting PCRA counsel leave to withdraw where:
1. Counsel’s Turner/Finley letter contradicted counsel’s own work:
2. And, Appellant was entitled to a counseled appeal to pursue claims of merit?
B. Did the PCRA court err in not finding that Appellant’s trial counsel was ineffective?
Appellant’s Brief at 4.
On appeal, we will reverse only if the PCRA court’s decision lacks support in the record or resulted from a legal error. Commonwealth v. Haun, 984 A.2d 557, 558 (Pa. 2009). Appellant first argues the trial court erred in granting PCRA counsel’s petition to withdraw. In Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), our Supreme Court held that a PCRA petitioner must assert any deficiency in counsel’s Turner/Finley letter in response to counsel’s no merit letter or in response to the trial court’s notice of intent to dismiss. Id. at 879 n.3. Failure to do so results in waiver of that issue. Id. Here, Appellant did not challenge the adequacy of counsel’s Turner/Finley letter prior to filing his appeal. Indeed, Appellant took no action in response to counsel’s no merit letter and petition to withdraw, and further took no action between the PCRA court’s October 18, 2013 order permitting counsel to withdraw and its January 3, 2014 order dismissing Appellant’s petition. Pursuant to Pitts, Appellant has failed to preserve that issue for review.
Likewise, Appellant argues in support of his first assertion of error that PCRA counsel’s stewardship was ineffective.1 Once again, Appellant failed to preserve this issue based on his inaction prior to appeal:
1 In Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012), appeal denied, 64 A.3d 631 (2013), we observed that an assertion of a defective Turner/Finley letter and an assertion of PCRA counsel’s ineffectiveness are distinct issues.
[Petitioner’s] failure, prior to his PCRA appeal, to argue PCRA counsel’s ineffectiveness [. . .] results in waiver of the issue of PCRA counsel's ineffectiveness. [Petitioner’s] attempt to obtain review, on collateral appeal, of an issue not raised in the proceedings below amounts to a serial PCRA petition on PCRA appeal. Although [petitioner] asserts his PCRA appeal was the first opportunity he had to challenge PCRA counsel’s stewardship because he was no longer represented by PCRA counsel, he could have challenged PCRA counsel’s stewardship after receiving counsel’s withdrawal letter and the notice of the PCRA court’s intent to dismiss his petition pursuant to Pa.R.Crim.P.
907, yet he failed to do so.
Id. at 880 n.4.
After Pitts, our Courts have continued to struggle with the proper means of addressing PCRA counsel’s alleged ineffectiveness. Nonetheless, a recent en banc panel of this Court explained that the principles expressed in footnotes three and four of Pitts remain the binding law of this Commonwealth. Commonwealth v. Henkel, 90 A.3d 16, 25-30 (Pa. Super. 2014) (en banc).2 We are cognizant that Appellant raised his issues concerning PCRA counsel in his Pa.R.A.P. 1925(b) statement of errors. As a
result, the PCRA court had the opportunity to address them. The same was
2 The Henkel Court granted en banc review to address “a perceived conflict among authorities as to whether this Court may entertain claims of PCRA counsel ineffectiveness raised for the first time on appeal.” Id. at 19. The Henkel Court analyzed our Supreme Court’s treatment of the issue in Pitts and subsequent cases. See id at 20 (citing Commonwealth v. Jette, 23 A.3d. 1032, 1044 n.14 (Pa. 2011); Commonwealth v. Hill, 16 A.3d 484, 497 n.17 (Pa. 2011); Commonwealth v. Colavita, 993 A.2d 874, 894 n.12 (Pa. 2010); Commonwealth v. Ligons, 971 A.2d 1125 (Pa. 2009)(plurality). We observed that these cases “all clarify that claims of PCRA counsel’s ineffectiveness may not be raised for the first time on appeal.” Id.
true in Henkel, but this Court nevertheless found the petitioner’s claims unreviewable. Id. at 19, 30. In light of Pitts and Henkel, we cannot review Appellant’s first assertion of error.
Next, we consider Appellant’s assertion of ineffective assistance of trial counsel, an issue he raised in his amended PCRA petition and preserved in his Pa.R.A.P. 1925(b) statement. In his pro se brief, Appellant argues plea counsel was ineffective for failing to explain to Appellant the terms of a plea agreement proposed by the Commonwealth. Specifically, Appellant asserts the Commonwealth offered to recommend a 14-month minimum sentence and restitution. Appellant claims counsel failed to inform him of the restitution provision and that he waived his preliminary hearing without knowledge of all terms of the proposed plea agreement.
To establish ineffective assistance of counsel, per § 9543(a)(2)(ii) of the PCRA, the petitioner must plead and prove by a preponderance of the evidence that the underlying issue is of arguable merit, that counsel had no reasonable strategic basis for the act or omission, and that counsel’s error was prejudicial to the petitioner. Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012). Counsel is presumed effective, and the petitioner’s failure to establish any one of the three elements is fatal to the claim. Id. at 1117-18.
Here, Appellant’s assertion of counsel’s ineffectiveness lacks arguable merit because the record indicates that he was aware of the
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