Com. v. Kephart, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY LEE KEPHART :
:
Appellant : No. 150 WDA 2020
Appeal from the PCRA Order Entered January 8, 2020
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000106-2015
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: APRIL 30, 2021
Appellant, Timothy Lee Kephart, pro se, appeals from the order denying
his first petition filed under the Post Conviction Relief Act (“PCRA”).1
We affirm.
The facts underlying this case were fully and correctly set forth by this
Court in Commonwealth v. Kephart, No. 218 WDA 2016, unpublished
memorandum at 1-2 (Pa. Super. filed June 7, 2017). Therefore, we have no
reason to restate them at length here.
For the convenience of the reader we briefly note that “Appellant ran
two trucking companies: (1) Dart Trucking, located in Columbiana, Ohio; and
(2) Kephart Trucking, located in Bigler, Pennsylvania. Appellant’s criminal
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
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acts with respect to Dart Trucking resulted in federal prosecution.” Id. at
1. “The Commonwealth charged Appellant with 584 theft-related
offenses” related to Kephart Trucking, and Appellant eventually “pleaded
guilty to 96 counts of theft by failure to make required disposition of funds
received.” Id. at 1-2 (footnote omitted).
On July 31, 2015, the trial court held a sentencing/restitution
hearing. Several [victims] testified about how Appellant’s actions
affected them. Appellant also testified. The Commonwealth
submitted 32 letters from victims and their family members, and
Appellant submitted letters written on his behalf. At the
conclusion of the hearing, the court imposed a sentence of six
months to two years’ incarceration for each of the first sixteen
counts, to be served consecutively to one another, for a total of
eight to thirty-two years. The terms imposed for the remaining
counts were to be served concurrently. Further, the state
sentence was to be consecutive to Appellant’s federal sentence.
The trial court also ordered Appellant to pay restitution to several
[victims].
On August 10, 2015, Appellant filed a post-sentence motion
challenging the restitution order and the length and consecutive
nature of his prison sentences. The court scheduled a hearing for
November 17, 2015, but no testimony was taken because the
parties stipulated that seven [victims] would testify that they
incurred unpaid medical expenses as a result of having their
insurance cancelled. The court ordered both parties to submit
briefs on “any outstanding issues involving [Appellant]’s
Postsentence Motion.” Order, 11/17/15. The Commonwealth
submitted a brief, but Appellant did not. On January 8, 2016, the
trial court granted the post-sentence motion, eliminating the
restitution requirement and reducing the prison sentence to seven
to twenty years. The court found that the Commonwealth had not
met its burden of proving a basis for restitution. The court further
explained that it reduced the maximum sentence because the
original maximum was based on the court’s desire to ensure
Appellant paid the full amount of restitution; once the restitution
was eliminated, the court no longer believed that such a long
maximum was necessary. Trial Ct. Op., 1/8/16, at 12. After the
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court imposed the modified sentence, Appellant did not file
another post-sentence motion.
Id. at 3-4 (footnote omitted). Appellant was not present at either the hearing
on his post-sentence motion or his resentencing hearing, because he “was in
the custody of the Federal government[.]” PCRA Court Opinion, dated
January 8, 2020, at 3.
Appellant filed a direct appeal, and this Court affirmed his judgment of
sentence on June 7, 2017. He did not petition for allowance of appeal with
the Supreme Court of Pennsylvania.
On July 5, 2018, Appellant filed his first, counseled, timely PCRA
petition. On March 6, 2019, the PCRA court held an evidentiary hearing, at
which Appellant testified that he had communicated to trial counsel that he
desired to be present at all post-sentence hearings. N.T., 3/6/2019, at 53.
On January 8, 2020, the PCRA court denied Appellant’s petition by order and
opinion.
On January 28, 2020, Appellant, pro se, filed this timely appeal. On
March 2, 2020, Appellant, pro se, filed his statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). On June 24, 2020, the PCRA court
entered a statement that the opinion accompanying its order would serve as
its opinion for purposes of Pa.R.A.P. 1925(a).
On July 16, 2020, this Court remanded the record to the trial court --
for a period of time not to exceed 30 days during which time the
trial court shall conduct a colloquy of Appellant pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), in order to
determine if Appellant desires to proceed pro se and, if so, if such
request to proceed pro se is knowing, voluntary, and intelligent.
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Order, 7/16/2020. On August 18, 2020, this Court entered an order noting
that it had not received a response from the PCRA court “as to whether a[]
Grazier hearing was held or any results thereof” and ordering the PCRA court
“to comply with this Court’s July 16, 2020 Order[.]” Order, 8/18/2020. On
September 10, 2020, this Court entered the following order:
AND NOW, as the [PCRA] court has returned the certified record
to this Court, and as a review of the [PCRA] court docket reflects
that the [PCRA] court held a Grazier hearing on August 28, 2020,
and granted Appellant’s request to proceed in this Court pro se,
Appellant is notified that he is proceeding on this matter in the
Court pro se.
Order, 9/10/2020.
Appellant now presents the following issues for our review:
1) Was [Appellant]’s trial counsel ineffective and his guilty plea
unlawfully induced resulting in a manifest injustice?
2) Was trial counsel ineffective through acts of omission and
therefore [Appellant] prejudiced at sentencing as a result of the
court hearing victim impact statements from individuals that gave
irrelevant and false statements regarding their medical bills?
3) Was trial counsel ineffective and [Appellant] prejudiced by
trial counsel’s consenting to having [Appellant] re-sentenced in
absentia and not filing a post sentence motion?
4) Was [Appellant] prejudiced and his appella[te] arguments
compromised as a result of the trial court failing to provide the
requested materials of record?
Appellant’s Brief at 2-3 (PCRA court’s answers omitted).
“We review the denial of PCRA relief to decide whether the PCRA court’s
factual determinations are supported by the record and are free of legal error.”
Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting
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Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)), reargument
denied (July 17, 2019).
Preliminarily, we note that Appellant’s fourth issue was not included in
his concise statement of errors complained of on appeal and is therefore
waived. Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived.”).
All of Appellant’s remaining claims allege ineffective assistance of trial
counsel.
Counsel is presumed to be effective.
To overcome this presumption, a PCRA petitioner must plead and
prove that: (1) the underlying legal claim is of arguable merit;
(2) counsel’s action or inaction lacked any objectively reasonable
basis designed to effectuate his client’s interest; and
(3) prejudice, to the effect that there was a reasonable probability
of a different outcome if not for counsel’s error.
A failure to satisfy any of the three prongs of this test requires
rejection of a claim of ineffective assistance.
Medina, 209 A.3d at 1000 (internal brackets, citations, and quotation marks
omitted) (some additional formatting).
Appellant first contends that his “[t]rial counsel’s ineffectiveness
precipitated a causal nexus resulting in [him] entering a guilty plea that was
unlawfully induced, involuntary and unknowing.” Appellant’s Brief at 27. He
continues that “the unreasonable advice of trial counsel . . . caused [him] to
plead guilty to charges even though he was innocent.” Id.
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After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable
Fredric J. Ammerman, we conclude Appellant’s first issue merits no relief. The
PCRA court opinion properly disposes of that question:
[Appellant] fails to show that trial counsel’s actions had no
reasonable strategic basis. This does not mean that “there were
other more logical courses of action which counsel could have
pursued: rather… whether counsel’s decisions had any reasonable
basis.” Commonwealth v. Rollins, 738 A.2d 435, 441 (Pa.
1999). At the time of the guilty plea, [Appellant] was facing 584
charges. As part of the guilty plea, [Appellant] only plead to 96
charges, meaning the Commonwealth withdrew 488 charges.
[Appellant]’s trial was set for only several weeks after the time
the guilty plea was entered. It is not unreasonable for trial counsel
to advise [Appellant] to plea to only 96 charges, knowing it could
significantly lower the sentence and number of convictions he was
facing. Everyone, including [Appellant], was aware that there
would be additional discovery made available prior to sentencing.
This was remedied by trial counsel requesting a restitution hearing
to determine what the appropriate restitution and grading of
charges would be. While there were other options for [Appellant]
and trial counsel to pursue, including proceeding to the scheduled
jury trial, it is not an unreasonable course of action for [Appellant]
to plead guilty and hold a restitution hearing prior to sentencing.
PCRA Court Opinion, dated January 8, 2020, at 1-2. Accordingly, Appellant
failed to establish that trial counsel’s action lacked any objectively reasonable
basis designed to effectuate Appellant’s interest; by failing to satisfy one prong
of the ineffective assistance of counsel test, we are required to reject
Appellant’s entire ineffectiveness claim on this basis. Medina, 209 A.3d at
1000.
Next, Appellant argues that “[t]rial counsel’s failure to object to victim
impact statements and restitution claims that were known to counsel at the
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time to be baseless and false severely prejudiced [Appellant] at the time of
sentencing.” Appellant’s Brief at 38. Appellant baldly asserts that “[t]his
testimony should have been barred under Rules 401 and 403”[2] but provides
no further explanation as to why or how these Rules apply. He also fails to
cite to any case law in support of his argument. By failing to cite to supporting
authority, Appellant has waived this second challenge. Kelly v. Carman
Corp., 229 A.3d 634, 656 (Pa. Super. 2020) (citing Pa.R.A.P. 2119(a)
(argument shall include citation of authorities); Commonwealth v. Spotz,
18 A.3d 244, 281 n.21 (Pa. 2011) (without a “developed, reasoned,
supported, or even intelligible argument[, t]he matter is waived for lack of
development”); In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012)
(“The argument portion of an appellate brief must include a pertinent
discussion of the particular point raised along with discussion and citation of
pertinent authorities[; t]his Court will not consider the merits of an argument
which fails to cite relevant case or statutory authority” (internal citations and
quotation marks omitted)); Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa.
Super. 2006) (explaining appellant’s arguments must adhere to rules of
appellate procedure, and arguments which are not appropriately developed
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2 Although Appellant does not clarify, we assume that he is referring to
Pennsylvania Rules of Evidence 401 and 403, which respectively state,
“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action”; and “The court may exclude relevant
evidence if its probative value is outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.”
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are waived on appeal; arguments not appropriately developed include those
where party has failed to cite any authority in support of contention)).
Finally, Appellant maintains that “[t]rial [c]ounsel was ineffective post
sentence as he failed to file a brief in support of the post sentence motion,
have [Appellant] present at the Post Sentence Hearing including his re-
sentencing and failed to file a Post Sentence Motion following the re-
sentencing.” Appellant’s Brief at 40.
The PCRA court found that Appellant failed to establish the prejudice
prong of the ineffectiveness test, because he did “not provide[] any evidence
that[,] had [he] been present, the outcome and resentencing would have
changed.” PCRA Court Opinion, dated January 8, 2020, at 3. We agree.
We first note that Appellant received multiple positive results from his
post-sentence motion – the motion was granted, restitution was eliminated,
and his term of incarceration was reduced. Consequently, it is difficult to see
how Appellant’s absence from the courtroom during the hearing on the post-
sentence motion or resentencing hearing or how trial counsel’s decision not to
file a brief for the post-sentence motion negatively impacted Appellant. As for
trial counsel’s failure to file a post-sentence motion following resentencing,
while Appellant is correct that such inaction caused any challenge to the
discretionary aspects of sentencing to be waived on appeal, this Court still
considered -- assuming the claim had been preserved -- whether the trial
court abused its discretion in resentencing Appellant and concluded that it had
not. This Court stated:
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The Sentencing Code, 42 Pa.C.S. § 9721(b), provides that a court
should impose a sentence of confinement that is “consistent with
the protection of the public, the gravity of the offense as it relates
to the impact on the life of the victim and on the community, and
the rehabilitative needs of the defendant.” See Commonwealth.
v. Walls, 926 A.2d 957, 962 (Pa. 2007). Here, the trial court
explained its sentence as follows:
In regard to the sentence, the Court took into account all
factors that were both favorable to [Appellant] and
favorable to the Commonwealth. The Court certainly
recognized that [Appellant] had a good record during his
period of both Federal and then County incarceration. Also
that [Appellant] has voluntarily taken responsibility for his
actions and shown remorse. Any arguments made by both
the Commonwealth and the Defense at [the] time of
sentencing were closely listened to by the Court and taken
into account when the sentence was fashioned. The Court
further notes that all sentences imposed were squarely
within the standard range of the State Sentencing
Guidelines. For example, on the first sixteen counts of Theft
by Failure to Make Required Disposition of Funds Received,
Felony of the Third Degree, upon which [Appellant] received
his princip[al] sentence, the standard range under the
Sentencing Guidelines was RS[10] to 9 [months]. The
minimum period of incarceration imposed on each count was
6 months. Obviously, the real complaint of [Appellant] was
that the 16 counts were run consecutive to each other.
However, it is strictly within the discretion of the sentencing
Judge to determine whether the sentence should be
imposed consecutively or concurrently.
Trial Ct. Op., 1/8/16, at 10. The court also reasoned, “[a]
defendant is not entitled to receive a ‘volume discount’ for his
criminal conduct by having his sentence[s] run concurrently
simply because they are a result of one larger criminal
transaction.” Id. at 11. The trial court noted that the restitution
Appellant paid from his personal 401(k) was mandated by the
Federal Court, and Appellant had previously tried to withdraw the
money for himself. Trial Ct. Supp. Op., 6/1/16, ¶ 1. Finally, the
trial court disagreed with Appellant’s assertion that this case was
related to his federal case, which involved a different trucking
company in a different state. Id.
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10 RS is an abbreviation for Restorative Sanctions. RS
“suggests use of the least restrictive, non-confinement
sentencing alternatives described in 42 Pa.C.S. § 9753
(determination of guilt without further penalty), § 9754
(order of probation) and § 9758 (fine). 42 Pa.C.S. § 9721(c)
(mandatory restitution) is also included in RS.” 204 Pa.
Code § 303.9(f).
We agree with the trial court’s reasoning. Accordingly, we
conclude that the trial court did not abuse its discretion or commit
an error of law in imposing sentence.
Kephart, No. 218 WDA 2016, at 10-12. Ergo, Appellant has failed to establish
that a different sentencing outcome would have resulted from different actions
or choices by trial counsel, and he hence has failed to establish prejudice and,
in turn, ineffective assistance of counsel. Medina, 209 A.3d at 1000.
For the reasons given above, we conclude that Appellant’s issues raised
on appeal are waived or meritless. Having discerned no error of law, we affirm
the order below. See id. at 996.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2021
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