Com. v. Doman, R. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RAYMOND S. DOMAN, JR.
Appellant No. 212 EDA 2014
Appeal from the PCRA Order January 2, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005671-2010
BEFORE: BOWES, J., SHOGAN, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 24, 2015
Raymond S. Doman, Jr., appeals from the order entered January 2,
2014, in the Bucks County Court of Common Pleas, dismissing his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et
seq. Doman seeks relief from the judgment of sentence of an aggregate 14
to 28 years’ imprisonment following his jury conviction of theft, criminal
mischief, robbery (two counts), simple assault, recklessly endangering
another person (REAP), resisting arrest, and fleeing or attempting to elude
police officer.1 On appeal, Doman challenges the ineffectiveness of trial
counsel for failing to object to the transfer of some of the charges from
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1
18 Pa.C.S. §§ 3921, 3304, 3701(a)(1)(ii) and (iv), 2701, 2705, and 5104,
and 75 Pa.C.S. § 3733, respectively.
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Montgomery County to Bucks County. For the reasons that follow, we
affirm.
The facts underlying Doman’s arrest and conviction are as follows.2
On June 8, 2010, Doman stole a white Volkswagen Eos from the parking lot
of the Willow Grove Mall in Montgomery County, Pennsylvania. One week
later, on June 15, 2010, David Clee, a retired police officer, noticed Doman
standing next to a sports utility vehicle (SUV) in the parking lot of the
Neshaminy Mall in Bucks County, Pennsylvania, with the Volkswagen Eos
idling in the nearby travel lane. Suspecting Doman was trying to steal the
SUV, Clee approached and saw Doman in the SUV with broken glass on the
ground. Clee then took the keys from the idling Volkswagen and walked
towards the mall for help. Doman ran after Clee, “sucker punched” him, and
proceeded to punch him until Clee relented. Id. at 2. Doman took the keys
to the Volkswagen from Clee’s pocket and fled. A witness provided the
police with the Volkswagen’s license plate number.
On June 21, 2010, another witness observed Doman prowling around
cars parked in the Cornwell Height’s Park & Ride lot in Bucks County,
Pennsylvania. After Doman broke into a car, the witness called police. A
Pennsylvania State Trooper arrived shortly thereafter and saw Doman who
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2
The facts are summarized in more detail in the PCRA court’s opinion. See
PCRA Court Opinion, 4/22/2014, at 1-5.
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met the description of the culprit. The officer exited his vehicle, identified
himself, and drew his weapon, ordering Doman to freeze. Doman ignored
the trooper’s directive and got into the Volkswagen parked nearby. Although
the trooper tried to take the keys from the ignition, Doman accelerated while
the trooper’s body was hanging from the window. The trooper discharged
his service weapon several times until he was able to get free. Doman,
unharmed, then fled the scene. The police found the Volkswagen abandoned
near the Delaware River in Bensalem, Pennsylvania. Doman was discovered
a few hours later, hiding in a nearby wooded area.
Doman was charged with numerous offenses stemming from all three
incidents. In August of 2010, the Montgomery County District Attorney’s
Office agreed to withdraw the charges filed against Doman in Abington
Township based upon the June 8, 2010, car theft at Willow Grove Mall, so
that the Bucks County District Attorney’s Office could prosecute Doman for
all three incidents.3 The case proceeded to a jury trial in Bucks County,
and on December 10, 2010, the jury returned a verdict of guilty on the
following charges: (1) with respect to the June 8th incident in Montgomery
County - theft and criminal mischief; (2) with respected to the June 15 th
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3
See Letter from Montgomery County District Attorney’s Office Chief of Staff
to Bucks County District Attorney, 8/26/2010.
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incident in Bucks County – simple assault and two counts of robbery; and
(3) with respect to the June 21st incident in Bucks County – fleeing or
attempting to elude police officer, REAP, and resisting arrest. The jury found
Doman not guilty on charges of aggravated assault (four counts), simple
assault, possessing an instrument of crime, and driving under suspension.4
On May 20, 2011, the trial court imposed an aggregate sentence of 14 to 28
years’ imprisonment. Doman filed a timely motion for reconsideration of
sentence, which was denied by the trial court.
Although Doman failed to file a timely appeal, on August 16, 2011, he
filed a motion for reinstatement of his direct appeal rights nunc pro tunc,
which the trial court promptly granted. On appeal, this Court affirmed the
judgment of sentence, and the Pennsylvania Supreme Court denied Doman’s
petition for allocator review. See Commonwealth v. Doman, 55 A.3d 134
(unpublished memorandum) (Pa. Super. 2012),5 appeal denied, 57 A.3d 67
(Pa. 2012).
On January 29, 2013, Doman filed a timely, pro se PCRA petition.
Counsel was appointed, and the court conducted two PCRA hearings on
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4
18 Pa.C.S. §§ 2702, 2701, and 907, and 75 Pa.C.S. § 1543, respectively.
5
On direct appeal, Doman challenged the jury instructions, the sufficiency of
the evidence, and the discretionary aspects of his sentence.
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November 18, 2013, and January 2, 2014.6 Following the second hearing,
the court dismissed Doman’s petition. This timely appeal followed.7
The sole issue Doman raises on appeal challenges the ineffectiveness
of trial counsel for failing to object to the transfer of the Montgomery County
charges to Bucks County. He acknowledges Pennsylvania Rule of Criminal
Procedure 555 allows for a choice of venue when charges arising from the
same criminal episode occur in different judicial districts. However, he
contends the Commonwealth failed to file the written agreement authorizing
the transfer of the charges to Bucks County in violation of the rule. Further,
Doman argues that, here, “[t]he only fact that the three incidents share is
that Doman was unlawfully in possession of a white Volkswagen Eos that
belonged to another person.” Doman’s Brief at 16. Rather, he maintains
“the theft of the Volkswagen was a separate and distinct incident from the
violent offenses that were charge[d] in relation to the Bucks County acts[,]”
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6
We note that although appointed counsel did not file an amended PCRA
petition, she did fully participate in both of Doman’s PCRA hearings and
presented cogent arguments on his behalf. However, we caution counsel
that the best practice is to file an amended petition when appointed by the
court as PCRA counsel.
7
On January 23, 2014, the PCRA court ordered Doman to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Doman complied with the court’s directive and filed a concise statement on
February 10, 2014.
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and counsel’s failure to object to the transfer of the charges is an issue of
arguable merit. Id.
Moreover, Doman rejects counsel’s claim that the failure to object was
strategic. Counsel testified his theory of the case was that Doman
committed “thefts of opportunity rather than thefts of violence[,]” and that
“[t]he inclusion of the Montgomery County offense was consistent with his
theory[.]” Id. at 18. However, Doman asserts counsel still could have
pursued that theory without “needlessly” exposing Doman to an aggregate
sentence with the inclusion of the Montgomery County theft. Id. at 19.
Lastly, Doman contends that he was prejudiced by counsel’s failure to object
because he would have pled guilty to the theft in Montgomery County, and
would not have received a sentence above the aggravated range of the
sentencing guidelines.8
When reviewing an order dismissing a PCRA petition, we must
determine whether the ruling of the PCRA court is supported by record
evidence and is free of legal error. Commonwealth v. Burkett, 5 A.3d
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8
The standard range of the guidelines for Doman’s Montgomery County
theft offense called for a minimum sentence of 12 to 18 months’
imprisonment, with an aggravated range of 21 months. See Guideline
Sentence Form, 5/20/2011. The statutory maximum sentence for the crime
was 42 to 84 months’ imprisonment. Id. Therefore, Doman’s sentence of
24 to 48 months’ (two to four years’) incarceration fell outside the
aggravated guidelines range.
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1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings
of the PCRA court, and these findings will not be disturbed unless they have
no support in the certified record.” Commonwealth v. Carter, 21 A.3d
680, 682 (Pa. Super. 2011) (citation omitted).
Where, as in the present case, the petitioner’s only claim is a challenge
to the ineffectiveness of prior counsel, our review is well-established:
We begin our analysis of ineffectiveness claims with the
presumption that counsel is effective. To prevail on his
ineffectiveness claims, Appellant must plead and prove, by a
preponderance of the evidence, three elements: (1) the
underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) Appellant
suffered prejudice because of counsel’s action or inaction. With
regard to the second, i.e., the “reasonable basis” prong, we will
conclude that counsel’s chosen strategy lacked a reasonable
basis only if Appellant proves that “an alternative not chosen
offered a potential for success substantially greater than the
course actually pursued.” To establish the third, i.e., the
prejudice prong, Appellant must show that there is a reasonable
probability that the outcome of the proceedings would have been
different but for counsel’s action or inaction.
Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal
citations omitted). “Failure to establish any prong of the test will defeat an
ineffectiveness claim.” Commonwealth v. Keaton, 45 A.3d 1050, 1061
(Pa. 2012) (citations omitted).
Pennsylvania Rule of Criminal Procedure 555 provides, in relevant
part:
(A) In all cases in which charges arising from a single criminal
episode occur in more than one judicial district:
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(1) If the charges are filed in more than one judicial district, at
any time after the case is held for court, the proceedings may
be transferred to one of the judicial districts.
****
(B) The judicial district to which the proceedings are to be
transferred shall be determined either:
****
(2) by written agreement of the attorneys for the
Commonwealth, filed with the clerk(s) of courts of the judicial
district(s) in which the charges are pending, with service upon
the defendant or defendant's counsel, and an opportunity for the
defendant to object.
****
(D) Upon the filing of the agreement of the attorneys for the
Commonwealth in paragraph (B)(2),
(1) absent an objection within 10 days of filing, the court
promptly shall order the transfer of the proceedings. …
Pa.R.Crim.P. 555.
Similarly, Rule 130 addresses the issue of venue before charges are
filed. It states, in relevant part:
When charges arising from the same criminal episode occur in
more than one judicial district, the criminal proceeding on all the
charges may be brought before one issuing authority in a
magisterial district within any of the judicial districts in which the
charges arising from the same criminal episode occurred.
Pa.R.Crim.P. 130(A)(2).
Our review of the record in the present reveals that the Montgomery
County charges were filed, and later withdrawn, after the Bucks and
Montgomery County district attorney’s offices agreed to prosecute all three
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incidents in Bucks County. See Letter from Montgomery County District
Attorney’s Office Chief of Staff to Bucks County District Attorney, 8/26/2010.
The agreement, dated August 26, 2010, was entered into before Doman was
arraigned in Bucks County on October 1, 2010, for the charges stemming
from all three incidents. Therefore, while the docket reflects no formal
transfer order by the Bucks County trial court pursuant to Rule 555(D)(1), it
appears the transfer occurred before Doman was formally arraigned on
October 1, 2010, in Bucks County on the charges for all three incidents.
Furthermore, when considering whether separate offenses constitute a
single criminal episode, we are guided by the following:
The determination of what constitutes a single criminal episode
must not be approached in a rigid or hypertechnical manner ….
Rather, when determining what constitutes a single criminal
episode, we consider (1) the temporal relationship between the
acts in question and (2) the logical relationship between the
acts. In determining whether a number of offenses are “logically
related” to one another, a court should inquire into whether
there is a substantial duplication of factual and/or legal issues
presented by the offenses; if there is substantial duplication,
then the offenses are logically related and must be prosecuted at
one trial.
Commonwealth v. Wittenburg, 710 A.2d 69, 73 (Pa. Super. 1998)
(citation omitted) (considering whether subsequent prosecution is barred
pursuant to compulsory joinder rule in 18 Pa.C.S. § 110), appeal denied,
727 A.2d 1120 (Pa. 1998).
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The PCRA court provided the following cogent analysis of Doman’s
ineffectiveness claim:
Obviously, [trial counsel] can only be found ineffective if
there is some arguable merit to the motion to transfer
proceedings which he admittedly did not file. However, both the
Montgomery County and Bucks County cases arose from the
same criminal episode thereby justifying the Bucks County’s
grant of jurisdiction because there is a substantial temporal and
logical relationship between the two. The theft of the
Volkswagen vehicle from Montgomery County and the numerous
crimes that later occurred in Bucks County are temporally
related because this stolen vehicle was used by [Doman] just a
week later in Bucks County. In terms of the logical relationship,
two separate trials would have resulted in numerous witnesses
being required to testify twice to substantially the same facts
which underlie [Doman’s] offenses, creating an unnecessary
burden on judicial resources in the process. Two witnesses in
Bucks County were in close proximity to the White Volkswagen
just prior to Mr. Clee’s assault, and were able to view its
occurrence, call police, and get the license plate of the
aforementioned Volkswagen while [Doman] fled in same.
Furthermore, [Doman’s] assault of Mr. Clee was, arguably, the
result of Mr. Clee retrieving the keys from the stolen Volkswagen
to prevent [Doman’s] escape. Therefore, because both involve
the same criminal episode, this claim has no merit and hearing
all charges in Bucks County eliminated duplication of effort on
the part of the parties involved and prevented the waste of
judicial resources.
It follows that [trial counsel] had a reasonable basis for not
filing what would have been a useless motion and was,
therefore, not ineffective for failing to do so. However, another
separate and distinct reasonable basis for not objecting to the
consolidation existed in the alternative. [Trial counsel] testified
that the ultimate theory of the case was to show that [Doman]
was a thief of opportunity and, although he had a long history of
thefts, he was not violent or aggressive towards anyone in
perpetration of these prior crimes. Therefore, because the
taking of the Volkswagen is wholly consistent with that theory,
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[trial counsel] deemed it advantageous for the jury to hear
evidence regarding this Montgomery County theft.
Finally, in terms of prejudice, at the PCRA proceedings [the
court] commented that:
… the most that could have been done would be to lodge
an objection to the District Attorney’s motion, we would
then have a hearing on it and I would make a decision
from the facts that it was a part of the total events that
happened in Bucks County, and for that reason alone the
motion would have been denied, because we would have
had the same witnesses and some of the same facts gone
over in two separate trials.
(N.T., 20, Jan. 2, 2014). Furthermore, [trial counsel] did testify
that he “touched on” the topic of venue with [Doman] but cannot
recall the specifics surrounding this conversation because it was
never an issue of contention. Regardless, we would not have
granted the motion had there been an objection to venue on this
basis even if [Doman] requested it and [trial counsel] complied
and, therefore, there exists no prejudice for [trial counsel’s]
failure to raise this motion.
PCRA Court’s Opinion, 4/22/2014, at 13-15 (some record citations omitted).
We agree with the PCRA court’s analysis. With respect to the
prejudice prong, we also note that Doman contends in his brief that had the
Montgomery County charges not been transferred to Bucks County, he
would have pled guilty to the theft offenses in Montgomery County, and he
would not have received a sentence above the aggravated range. We find
this claim specious. Doman did not testify during the PCRA hearings, and
never averred that he would have entered a guilty plea had the charges
remained in Montgomery County. Moreover, his contention that a
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Montgomery County judge would have imposed a lesser sentence for his
crime is pure speculation.
Therefore, because we agree with the PCRA court that Doman has
failed to demonstrate trial counsel’s ineffectiveness, we affirm the order
dismissing his PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2015
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