Com. v. Stout, M. ( 2017 )

J-S37032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARK LUKE STOUT, :
:
Appellant : No. 1600 MDA 2016
Appeal from the PCRA Order entered August 22, 2016
in the Court of Common Pleas of Luzerne County,
Criminal Division, No(s): CP-40-CR-0000258-2014;
CP-40-CR-0000447-2015
BEFORE: STABILE, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 17, 2017
Mark Luke Stout (“Stout”) appeals, pro se, from the Order dismissing
his Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42
Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court set forth the relevant factual and procedural history as
follows:
[At No. CP-40-CR-0000258-2014 (“No. 258-2014”), Stout]
entered a plea of guilty to two hundred counts of child
pornography and one count of criminal use of communication
facility on September 26, 2014. [At No. CP-40-CR-0000447-
2015 (“No. 447-2015”), Stout] then pled guilty to an additional
two counts of child pornography and an additional count of
criminal use of communication facility on March 24, 2015.
Sentencing also occurred on March 24, 2015. [At No. 258-
2014], [Stout] was sentenced to 12 to 24 months on counts one
through five[,] to run consecutively. The remaining 196 counts
were to run concurrent to count five. [At No. 447-2015], [Stout]
received a sentence of 12 to 24 months on counts one and
two[,] and 6 to 12 months on count three. These sentences
were to run consecutive to each other and consecutive to the
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sentence imposed on [No. 258-2014]. The aggregate sentence
[for] both cases was 7½ to 15 years. All sentences were within
the standard range. [Stout] was given credit for serving 275
days of incarceration prior to sentencing.
On March 27, 2015, [Stout] filed a Post[-]Sentence Motion to
Modify Sentence. On March 30, 2015, [Stout] filed a Motion to
Modify Sentence. Both Motions were denied by Order dated April
28, 2015.
[Stout] filed a timely [N]otice of [A]ppeal … on May 20, 2015.
Appellate counsel filed an Anders[1] brief[,] and the appeal was
discontinued.
[Stout, pro se, filed a PCRA Petition on February 12, 2016, which
the PCRA court dismissed, without prejudice, as premature.]
On May 20, 2016, [Stout] filed [the instant, timely 2] pro se
[PCRA Petition]. Counsel was appointed to represent [Stout,]
and [counsel] submitted a “no merit” letter [pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc),] after determining that the PCRA [Petition] was without
merit. The PCRA court granted the motion to withdraw filed by
PCRA counsel. A Notice of Intention to Dismiss the [PCRA
Petition] pursuant to Pa.R.Crim.P. 907 was issued by [the PCRA
c]ourt on July 27, 2016. An Order dated August 22, 2016 was
then filed[,] which dismissed the [PCRA Petition].
PCRA Court Order, 10/20/16, 2-3 (unnumbered; footnotes added).
Stout, pro se, filed a timely Notice of Appeal. On September 22, 2016,
the PCRA court issued an Order directing Stout to file a Pa.R.A.P. 1925(b)
1
Anders v. California, 386 U.S. 738 (1967).
2
A judgment of sentence becomes final, for PCRA purposes, on the date an
appeal is discontinued. See Commonwealth v. McKeever, 947 A.2d 782,
785 (Pa. Super. 2008).
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concise statement of errors complained of on appeal within 21 days. Stout
did not file his Concise Statement until November 17, 2016.3
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA court’s
ruling if it is supported by evidence of record and is free of legal
error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
3
We note that on October 20, 2016, the PCRA court issued an Order finding
that Stout waived his claims by failing to file a court-ordered Rule 1925(b)
concise statement. See PCRA Court Order, 10/20/16, at 1-2 (unnumbered);
see also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005)
(stating that “in order to preserve their claims for appellate review,
appellants must comply whenever the trial court orders them to file a
Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925.”
(citation and brackets omitted)). However, there is no indication from the
docket when service of the 1925(b) Order was effectuated. See
Pa.R.Crim.P. 114 (providing that the clerk of courts must furnish copies of
the order to the parties and record the date of service of the order in the
docket). Accordingly, we decline to find Stout’s claims waived on this basis.
See Commonwealth v. Chester, 2017 WL 2200744, *2 (Pa. Super. 2017).
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On appeal, Stout challenges the effectiveness of his plea counsel.4
Brief for Appellant at 4 (unnumbered). Stout claims that his plea counsel
failed to file a motion to withdraw his guilty plea, despite Stout’s written
request. Id.In his three-paragraph argument, Stout failed to identify the elements
of a claim of ineffective assistance of counsel, or to provide any discussion
regarding those elements. Additionally, Stout failed to include any argument
regarding why, if the motion had been filed, he would be entitled to
withdraw his guilty plea. Stout’s bald assertion that “the outcome would
have been different” if his plea counsel had filed a motion to withdraw the
guilty plea is insufficient to establish his entitlement to relief. See
Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001) (stating that
“an undeveloped argument, which fails to meaningfully discuss and apply
the standard governing the review of ineffectiveness claims, simply does not
satisfy [a]ppellant’s burden of establishing that he is entitled to any relief.”);
4
Stout also baldly claims that he was denied the right to counsel at his
arraignment and preliminary hearing. Brief for Appellant at 4
(unnumbered). However, Stout failed to include these claims in his Concise
Statement, and therefore, they are waived. See Pa.R.A.P. 1925(b)(4)(vii)
(providing that “[i]ssues not included in the Statement … are waived.”).
Additionally, Stout failed to develop these issues in a meaningful fashion
capable of our review. See Pa.R.A.P. 2119(a) (providing that the argument
shall include “such discussion and citation of authorities as are deemed
pertinent.”); see also Commonwealth v. Johnson, 985 A.2d 915, 924
(Pa. 2009) (stating that “where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”).
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see also Commonwealth v. Spotz, 896 A.2d 1191, 1250 (Pa. 2006)
(concluding that appellant’s “undeveloped argument respecting the
ineffectiveness of all prior counsel is insufficient to establish an entitlement
to post-conviction relief.”); Commonwealth v. Jones, 811 A.2d 994, 1003
(Pa. 2002) (noting that “[c]laims of ineffective assistance of counsel are not
self-proving”).
Moreover, the PCRA court concluded, and we agree, that Stout’s guilty
plea was knowingly, intelligently, and voluntarily entered. Here, the trial
court conducted oral colloquies on the record, during which Stout
acknowledged that he was pleading guilty of his own free will, and no one
was forcing him to plead guilty; he understood the nature of the charges; he
understood that he was giving up certain constitutional rights, including the
presumption of innocence and the right to a jury trial; he understood the
maximum sentences he could receive for each charge, and that his
sentences could be imposed consecutively; and he agreed to the facts
underlying each charge. See N.T., 3/24/15, at 2-6; N.T., 9/26/14, at 2-6;
see also Pa.R.Crim.P. 590, cmt. (setting forth the areas of inquiry that must
be covered by a valid plea colloquy). Under these circumstances, Stout is
unable to show that he was prejudiced by counsel’s failure to file a motion to
withdraw his guilty plea. See Commonwealth v. Edwards, 612 A.2d
1077, 1079-80 (Pa. Super. 1992) (dismissing appellant’s ineffective
assistance of counsel claim because appellant could not show prejudice for
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counsel’s failure to file a post-sentence motion to withdraw the guilty plea,
where the guilty plea was entered voluntarily and knowingly). Accordingly,
the PCRA court did not err in dismissing Stout’s Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2017
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