Commonwealth v. Michaud

70 A.3d 862, 2013 Pa. Super. 180, 2013 WL 3475466, 2013 Pa. Super. LEXIS 1641
CourtSuperior Court of Pennsylvania
DecidedJuly 11, 2013
StatusPublished
Cited by135 cases

This text of 70 A.3d 862 (Commonwealth v. Michaud) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Michaud, 70 A.3d 862, 2013 Pa. Super. 180, 2013 WL 3475466, 2013 Pa. Super. LEXIS 1641 (Pa. Ct. App. 2013).

Opinion

OPINION BY

OLSON, J.:

Appellant, Joseph H. Michaud, appeals from the order entered May 17, 2012, denying his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). We affirm.

The PCRA court summarized the relevant factual and procedural background of this matter as follows.

On December 17, 2010, the Commonwealth filed an [information charging [Appellant] with [aggravated [i]ndecent [ajssault,1 [u]nlawful [cjontact or [c]om-munication with a [m]inor,2 [i]ndecent [a]ssault of a [pjerson [l]ess than 18 [y]ears of [a]ge,3 and [e]orruption of [m]inors.4 The charges arose from an incident that occurred sometime between September 2006 and September 2007 in Montgomery Township, Montgomery County, when [Appellant]5 reached his right hand inside the shorts of a then — nine or 10-year-old girl6 and rubbed her vagina with his finger. The victim was a neighbor of [Appellant’s] at the time of the incident.
The case proceeded to a bench trial on May 18, 2011. The evidence consisted of, inter alia, testimony from the victim, a recorded conversation between [Appellant] and an acquaintance and [Appellant’s] statement to police. During both the recorded statement and the statement to police, [Appellant] admitted to touching the nine- or 10-year-old victim, but indicated that she had enticed him. The victim testified, inter alia, that [Appellant] moved his finger “[l]ike around, like, the outside, but like it wasn’t on the outside. It was still in.” [Appellant], as was his right, did not testify. Instead, his attorney Brian Smith, Esquire, attempted to challenge the Commonwealth’s evidence on the issue of penetration, which is a required element for the charge of [aggravated [i]ndecent [a]ssault.
On April 28, 2011, the [trial court] found [Appellant] guilty of all charges. On July 25, 2011, the court sentenced [Appellant] under a mandatory minimum sentencing scheme to five to 15 years imprisonment.
On August 2, 2011, [Appellant], through newly[-]retained counsel, John B. Elbert, Esquire, filed a [p]ost-[v]erdict [m]otion in which he stated that he intended to file an appeal challenging the effectiveness of trial counsel, Brian Smith, Esquire. The sole relief requested in the [p]ost-[v]erdict [m]otion was that [Appellant’s] bail be reinstated pending the outcome of the proposed appeal. On August 10, 2011, [the trial court] issued an [o]rder denying the [p]ost-[v]erdict [m]otion.
On August 31, 2011, [Appellant], through attorney Elbert, filed a [n]otice of [alp-peal with the Superior Court. He also [866]*866filed an emergency motion for reinstatement of bail with the Superior Court. The Superior Court issued an [o]rder dated September 12, 2011, directing that [the trial court] hold a hearing on the emergency bail motion. In response, [the trial court] scheduled a hearing on the motion for October 4, 2011. But on September 15, 2011, the Superior Court issued another [o]rder stating the appeal had been discontinued. As a result, the Superior Court stated the [o]rder directing [the trial court] to hold a hearing was moot.
On September 23, 2011, [Appellant] through attorney Elbert, filed a “[preliminary [p]etition [u]nder the PCRA.” He also filed an emergency request for bail, which the [trial] court denied without a hearing. On December 13, 2011, [Appellant], through attorney Elbert, filed an [a]mended [p]etition [u]nder the [PCRA], raising the following three issues:
1. Trial counsel was ineffective for failing to receive a list of character witnesses and present [Appellant’s] good character;
2. Trial counsel was ineffective for not preparing [Appellant] to testify and advising him to waive his right to testify; and
3. Trial counsel was ineffective for failing to have a pre-trial colloquy to confirm [Appellant’s] choice to proceed by way of bench trial.
[The PCRA court] held hearing on the [a]mended PCRA [p]etition on January 27, 2012 and March 2, 2012. [Appellant] testified and presented testimony from four purported character witnesses and trial counsel.
On May 17, 2012, the [PCRA] court issued an [o]rder denying the [a]mended PCRA [petition. [Appellant] filed a counseled [n]otice of [a]ppeal on June 15, 2012. On June 25, 2012, [the PCRA court] issued an [o]rder directing [Appellant] to file and serve a [c]oncise [statement of [i]ssues [c]omplained of on [a]ppeal within 21 days in conformance with Pennsylvania Rule of Appellate Procedure 1925(b). On July 13, 2012, [Appellant], through counsel, filed a [p]etition [s]eeking [p]ermission to [f]ile [n]otice of [a]ppeal [n]unc [p]ro [t]unc. The [p]etition was based upon counsel’s belief that he had not timely perfected appeal.
On August 2, 2012, [Appellant], through counsel, filed [m]otion for [enlargement of [t]ime to [f]ile a 1925(b) [statement]. The [m]otion acknowledged counsel’s mistake regarding the filing of the appeal and asked permission to file a [concise [statement outside of the time prescribed in the [PCRA] court’s [o]rder of June 25, 2012. On August 6, 2012, [Appellant], through counsel, filed and served a [c]oncise [statement. On August 7, 2012, [the PCRA] court issued an [o]rder granting the [m]otion for [enlargement of [t]ime and accepted the [c]oncise [statement filed on August 6, 2012.

PCRA Court Opinion, 8/14/2012, at 1-4 (footnotes in original, citations to the record omitted). On August 14, 2012, the PCRA court issued a Rule 1925(a) opinion. This appeal followed.

Appellant presents three issues on appeal:

Did the PCRA court err in denying Appellant PCRA relief as a result of trial counsel’s failure to conduct any investigation and properly present evidence of Appellant’s good character to the trial court?
Did the PCRA court err in denying Appellant PCRA relief as a result of trial counsel’s ineffective instruction urging Appellant to waive his right to testify? [867]*867Did the PCRA court err in denying Appellant PCRA relief as a result of trial counsel’s] and the lower court’s failure to advise Appellant of his right to a jury trial prior to the start of the bench trial?

Appellant’s Brief at 3.

Our standard of review of a PCRA court’s denial of petition for relief is well-settled. We review an order of the PCRA court to determine whether the record supports the findings of the PCRA court and whether its rulings are free from legal error. Commonwealth v. Fiore, 780 A.2d 704, 710 (Pa.Super.2001), appeal dismissed, 572 Pa. 568, 817 A.2d 1080 (2003). To be eligible for PCRA relief, a petitioner must plead and prove, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the reasons set forth in 42 Pa.C.S.A. § 9543(a)(2). In this case, Appellant alleges that his conviction and sentence resulted from ineffective assistance of counsel, as set forth at 42 Pa.C.S.A. § 9543(a)(2)(h).

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Cite This Page — Counsel Stack

Bluebook (online)
70 A.3d 862, 2013 Pa. Super. 180, 2013 WL 3475466, 2013 Pa. Super. LEXIS 1641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-michaud-pasuperct-2013.