Com. v. Sever, L. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAWRENCE EDWARD SEVER
Appellant No. 1153 MDA 2015
Appeal from the PCRA Order June 23, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000094-2010
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED OCTOBER 13, 2016
Lawrence Sever appeals from an order denying his petition for relief
under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. We affirm.
Sever was charged with involuntary deviate sexual intercourse
(“IDSI”) for sexually assaulting a nine year old boy, C.J., in October 2008.
Sever, a Florida resident, had met C.J. and his mother when they lived in
Florida and sexually assaulted C.J. near C.J.’s Florida residence. C.J. and his
mother later moved to Pennsylvania. On October 21, 2008, Sever visited
C.J. and his mother at their Pennsylvania residence, ostensibly to return
some of their belongings that they had left behind in Florida, but Sever
sexually assaulted C.J. again during this visit.
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There were two jury trials before the Honorable Thomas Kelley.
Clasina Houtman, Esquire, First Assistant Public Defender at the York County
Public Defender’s Office, represented Sever during both trials.
On October 15, 2010, the first trial ended in a mistrial. In January
2011, two weeks before the second trial, Houtman learned that Judge Kelley
had been involved in a romantic relationship with another Public Defender,
Janan Tallo, Esquire, during 2010 and January 2011. Judge Kelley and Tallo
kept their romance secret, thus enabling Tallo to continue representing
clients in Judge Kelley’s courtroom.
Houtman was Tallo’s supervisor in the Public Defender’s Office. When
the Public Defender’s Office learned about the romance in January 2011, the
Chief Public Defender, attorney Blocher, “had a conversation with Judge
Kelley” and then removed Tallo from Judge Kelley’s courtroom. N.T.,
6/16/15, at 36. Tallo did not participate in any way in Sever’s two trials.
On February 7, 2011, Sever’s second jury trial began before Judge
Kelley. On February 8, 2011, the evidentiary phase of trial concluded, the
parties presented closing arguments, and Judge Kelley charged the jury.
Later that night, Judge Kelley broke Tallo’s elbow during a domestic dispute.
On February 9, 2011, Judge Kelley answered one question from the
jury, and the jury found Sever guilty of IDSI. Following trial, Judge Kelley
was assigned to another trial division, and Sever’s case was reassigned to
the Honorable Richard Renn.
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Prior to his assault on C.J., Sever had a prior conviction and lengthy
sentence in Florida for lewd and lascivious assault upon a child. Accordingly,
at sentencing on October 27, 2011, Judge Renn treated Sever as a second-
time sexual offender and imposed a term of 25-50 years’ imprisonment, the
mandatory minimum under 42 Pa.C.S. § 9718.2.1 Sever filed timely post-
sentence motions, which Judge Renn denied. On December 12, 2012, this
Court affirmed on direct appeal. On May 13, 2014, the Supreme Court
denied Sever’s petition for allowance of appeal.
On March 16, 2015, Sever filed a timely PCRA petition, and he
subsequently filed an amended PCRA petition. On June 16, 2015, Judge
Renn held an evidentiary hearing. At the conclusion of the hearing, Judge
Renn denied all but one of Sever’s claims and took the remaining claim
under advisement. On June 23, 2015, Judge Renn entered an order and
opinion denying the remaining claim.
Sever filed a timely notice of appeal. On July 7, 2015, Judge Renn
ordered Sever’s counsel to file a Pa.R.A.P. 1925(b) statement within 21
days. Counsel failed to file a Pa.R.A.P. 1925(b) statement until August 21,
2015. On August 25, 2015, Judge Renn filed a Pa.R.A.P. 1925 opinion
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1
Sever does not challenge his mandatory minimum sentence as
unconstitutional under Alleyne v. United States, -- U.S. --, 133 S.Ct. 2151(2013). For the sake of completeness, we note that our Supreme Court has
held that Alleyne does not apply retroactively to PCRA cases such as the
present appeal. Commonwealth v. Washington, 142 A.3d 810 (Pa.2016).
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incorporating by reference his June 23, 2015 opinion and his conclusions
entered on the record during the PCRA hearing.
In criminal appeals, when the appellant fails to file a Pa.R.A.P. 1925(b)
statement, this Court usually must remand for the filing of a Pa.R.A.P.
1925(b) statement nunc pro tunc and the filing of an opinion by the court of
common pleas. Pa.R.A.P. 1925(c)(3). Remand is not necessary, however,
when counsel files an untimely Pa.R.A.P. 1925(b) statement and the trial
court files an opinion addressing the issues presented. Commonwealth v.
Burton, 973 A.2d 428, 433 (Pa.Super.2009). Here, counsel for Sever filed
an untimely Pa.R.A.P. 1925(b) statement, but Judge Renn filed an opinion
incorporating by reference his previous decisions rejecting the issues in
Sever’s PCRA petition. Under these circumstances, remand for further
proceedings is unnecessary.
Sever raises four issues in this appeal, which we have re-ordered for
the sake of disposition:
1. Whether the trial court erred in denying PCRA relief on the
grounds that Attorney Houtman did not disclose a conflict of
interest to [Sever] [?]
2. Whether the trial court erred in denying relief for Attorney
Houtman failing to request Judge Kelley recuse himself prior to
the start of the second trial [?]
3. Whether the trial court erred in denying relief for Attorney
Houtman failing to call William West and Daniel Wilson as
witnesses from Florida [?]
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4. Whether the trial court erred in denying relief on the grounds
that Attorney Houtman failed to properly advise [Sever] about a
potential plea offer [?]
Brief For Appellant, at 4.
We review Sever’s first and second arguments together. Sever claims
that attorney Houtman had a “conflict of interest” due to Judge Kelley’s
romantic relationship with another attorney in the Public Defender’s Office,
Tallo, and that Houtman provided ineffective assistance by failing to disclose
this conflict to Sever or moving for Judge Kelley’s recusal. The best that we
can discern from Sever’s brief is that he claims: (1) Judge Kelley held an
animus against the entire Public Defender’s Office following Tallo’s removal
from his courtroom, (2) Judge Kelley blamed Houtman for Tallo’s removal;
(3) Judge Kelley’s hostility created a conflict of interest between Houtman’s
duty to represent Sever zealously and Houtman’s duty of loyalty towards the
Public Defender’s Office; (4) Houtman should have informed Sever about
this conflict prior to Sever’s second trial to enable Sever to obtain counsel
from some other office, (5) Houtman was ineffective for failing to tell Sever
about this issue, and (6) Houtman was ineffective for failing to file a motion
seeking Judge Kelley’s recusal from the second trial.
“Our standard of review from the grant or denial of post-conviction
relief is limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal error. We
will not disturb findings that are supported by the record.” Commonwealth
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v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011). “The court’s scope of
review is limited to the findings of the PCRA court and the evidence on the
record of the PCRA court’s hearing, viewed in the light most favorable to the
prevailing party.” Commonwealth v. Duffey, 889 A.2d 56, 61 (Pa.2005).
Further, counsel is presumed effective, and the PCRA petitioner bears
the burden to prove otherwise. Commonwealth v. McDermitt, 66 A.3d
810, 813 (Pa.Super.2013). The test for ineffective assistance of counsel is
the same under both the Federal and Pennsylvania Constitutions.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Commonwealth v.
Jones, 815 A.2d 598, 611 (Pa.2002). The petitioner must demonstrate that:
(1) his underlying claim is of arguable merit; (2) the particular course of
conduct pursued by counsel did not have some reasonable basis designed to
effectuate the appellant’s interests; and (3) but for counsel’s ineffectiveness,
there is a reasonable probability that the outcome of the proceedings would
have been different. Commonwealth v. Pierce, 786 A.2d 203, 213
(Pa.2001), abrogated on other grounds by Commonwealth v. Grant, 813
A.2d 726 (Pa.2002). An issue has arguable merit if the facts upon which the
claim is based are true, and the law on which the claim is premised could
afford relief. Commonwealth v. Jones, 876 A.2d 380, 385 (Pa.2005). “A
failure to satisfy any prong of the test for ineffectiveness will require
rejection of the claim.” Jones, 815 A.2d at 611.
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“A defendant cannot prevail on a conflict of interest claim absent a
showing of actual prejudice.” Commonwealth v. Spotz, 896 A.2d 1191,
1231 (Pa.2006). Although a presumption of prejudice arises when there
exists an “actual conflict of interest,” this presumption applies only where
counsel “actively represented conflicting interests.” Id. at 1232.
In this case, Sever failed to present any evidence that Houtman
“actively represented conflicting interests.” Id. As the PCRA court stated
following the PCRA hearing, “there is no testimony whatsoever that anything
was going on either between [Houtman] and Judge Kelley or between
[Houtman] and attorney Tallo [that] created a conflict between [Houtman]
and … Sever.” N.T., 6/16/15, at 71. The record supports the PCRA court’s
conclusion. Houtman testified during the PCRA hearing that her relationship
with Judge Kelley was more “adversarial” during Sever’s first trial (before
Judge Kelley’s romantic relationship with Tallo came to light) than during
Sever’s second trial. Id. at 33. Thus, Houtman’s relationship with Judge
Kelley did not suffer as a result of Tallo’s removal from Judge Kelley’s
courtroom. Further, Houtman was not responsible for Tallo’s removal from
Judge Kelley’s courtroom. Instead, the chief Public Defender, Blocher, had a
conversation with Judge Kelley after the romance came to light, and Blocher
then ordered Tallo’s removal. Id. at 36. Sever did not present any
evidence, either during trial or the PCRA hearing, that Judge Kelley blamed
Houtman for Tallo’s removal. Nor can Sever identify a single ruling during
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his second trial that was affected by Tallo’s removal. Finally, Sever cannot
identify any manner in which Tallo’s removal from the courtroom impeded
Houtman’s representation of Sever. In short, Sever’s conflict of interest
claim is mere speculation.
Sever’s second argument -- Houtman was ineffective for failing to
move for Judge Kelley’s recusal -- fails as well. Recusal is necessary only
when there is evidence of bias, prejudice or unfairness which raises a
substantial doubt as to the jurist’s ability to preside impartially.
Commonwealth v. White, 910 A.2d 648, 657 (Pa.2006). It is not
necessary to demonstrate actual prejudice; an appearance of prejudice is
sufficient to justify recusal. Id. Sever failed to present any evidence that
Judge Kelley was prejudiced against Houtman due to Tallo’s removal (or due
to any other reason), or that there was an appearance of such prejudice.
For these reasons, Sever’s first and second arguments in this appeal
fail for lack of arguable merit and lack of prejudice.
In his third argument, Sever asserts that Houtman was ineffective for
failing to call William West and Daniel Wilson as witnesses from Florida.
Sever’s entire argument on this issue is as follows:
By the time [PCRA] counsel was appointed[,] both Mr. West and
Mr. Wilson were deceased. [Sever] was only able to present his
testimony on what he believed that they would have been
available to testify about. Attorney Houtman testified about the
efforts that she investigated all the witnesses. [Sever] believes
that more should have been done to preserve their testimony.
Brief For Appellant, at 12.
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To sustain a claim that trial counsel was ineffective for failing to call a
witness, there must be evidence of record that (1) the witness existed; (2)
the witness was available to testify for the defense; (3) counsel knew, or
should have known, of the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant a fair trial.
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super.2014).
Sever’s claim lacks arguable merit. The PCRA court credited
Houtman’s testimony that William West died before Sever’s first trial. N.T.,
6/16/15, at 31. The PCRA court accurately observed that Sever failed to
present any evidence that Houtman could have arranged for West’s
deposition before his death. Id. at 72. Further, Sever admitted that Daniel
Wilson refused to speak to Houtman’s investigator when the investigator
called him. Id. at 19.
Finally, Sever argues that Houtman was ineffective for failing to
properly advise him about a guilty plea offer of 10-20 years’ imprisonment in
exchange for pleading guilty to two misdemeanor charges. The PCRA court
properly rejected this claim. The record confirms that the Commonwealth
never made any such offer. Houtman testified that she did not recall
receiving any offer. N.T., 6/16/15, at 27. In addition, the Commonwealth
observed that it never would have made an offer of 10-20 years’
imprisonment for two misdemeanors, because the maximum sentence for a
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first degree misdemeanor at the time of Sever’s second trial was 2½-5
years’ imprisonment, yielding a maximum consecutive sentence of 5-10
years’ imprisonment for two misdemeanors. Id. at 54-55.
For these reasons, we affirm the order denying Sever’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2016
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