Com. v. Gonzalez, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DANIEL JOSHUA GONZALEZ
Appellant No. 1629 MDA 2015
Appeal from the Order Entered August 24, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No: CP-36-CR-0005599-2013
BEFORE: PANELLA, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 22, 2016
Appellant Daniel Joshua Gonzalez appeals from the August 24, 2015
order of the Court of Common Pleas of Lancaster County (“PCRA court”),
denying his petition for collateral relief under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The facts and procedural history underlying this case are uncontested.
As recounted by the PCRA court:
On December 23, 2013, the Commonwealth filed a
[c]riminal [i]nformation charging Appellant with one count of
[a]ggravated [a]ssault [(18 Pa.C.S.A. § 2702(a)(1)] and one
count of [c]riminal [c]onspiracy to commit [a]ggravated
[a]ssault [(18 Pa.C.S.A. § 903(a))], both felonies of the first
degree. Those charges arose out of an incident which occurred
on October 22, 2013, where Appellant and several other
individuals allegedly punched and kicked Tyron Sheppard
(“victim”) in the head, rendering him unconscious. Appellant
then proceeded to bend over and slash the victim’s face and
neck area with an unknown edged weapon, causing a deep cut
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to the neck. On June 17, 2014, a jury found Appellant guilty on
both counts after a two-day trial.
On June 18, 2014, an order was entered directing that a
[p]re-[s]entence [i]nvestigation (“PSI”) [r]eport be completed.
On August 25, 2014, a [s]entencing hearing was held before
th[e trial c]ourt, at which time Appellant was sentenced on
[c]ount 1 to a period of incarceration of not less than 10 years
nor more than 20 years. On [c]ount 2, Appellant was sentenced
to a period of incarceration of not less than 10 years nor more
than 20 years, to be served consecutively to the sentence
imposed on [c]ount 1.[FN1] The result was an aggregate
sentence of not less than 20 years nor more than 40 years’
imprisonment in the state correctional institution.
FN1. These sentences were in accord with the statutory
maximum sentence of 20 years’ imprisonment for each
count. See 18 Pa.C.S.A. § 1103.
On August 29, 2014, Appellant’s trial counsel, Christopher
P. Lyden, Esquire, filed a [p]ost-[s]entence [m]otion, which
included an assertion that the deadly weapon enhancement
contained in the sentencing guidelines was unconstitutional
because it permits a judge and not a jury to determine whether
a defendant used a deadly weapon during the commission of a
crime. Trial counsel asserted that Appellant should be re-
sentenced without application of the deadly weapon
enhancement. On September 16, 2014, the trial court entered
an order denying Appellant’s [p]ost-[s]entence [m]otion.
On September 30, 2014, Appellant’s trial counsel filed a
[n]otice of [a]ppeal from the order denying his [p]ost-[s]entence
[m]otion. On October 6, 2014, trial counsel filed a [s]tatement
of [m]atters [c]omplained of on [a]ppeal (“Statement”), alleging
that the trial court erred in failing to find the deadly weapon
enhancement in the sentencing guidelines unconstitutional
pursuant to Alleyne v. United States, 133 S. Ct. 2151 (2013)
and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014), where the jury did not find beyond a reasonable doubt
the enhancement applied. Counsel asserted Appellant was
entitled to a new sentencing hearing based on this alleged error.
On October 29, 2014, during the pendency of his direct
appeal, Appellant filed a pro se PCRA Motion, alleging, inter alia,
that trial counsel provided ineffective assistance of counsel.
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Thus, trial counsel sent Appellant a letter dated November 5,
2014, advising Appellant that he would have to discontinue his
direct appeal if he wished to pursue a PCRA claim of ineffective
assistance of counsel at the present time. Appellant thereafter
signed a [p]raecipe for [d]iscontinuance[1] and mailed it back to
trial counsel. As a result, trial counsel filed a [p]raecipe with the
Superior Court of Pennsylvania seeking to withdraw and
discontinue Appellant’s direct appeal, which was granted on
November 25, 2014.
On December 3, 2014, the trial court entered an order
dismissing without prejudice Appellant’s PCRA [m]otion, noting
that the court lacked jurisdiction over the PCRA [m]otion
because it was filed during the pendency of a direct appeal. On
January 15, 2015, Appellant refiled his pro se PCRA [petition], at
which time R. Russel Pugh, Esquire, was appointed as
Appellant’s PCRA counsel. On March 17, 2015, PCRA counsel
filed an [a]mended PCRA [p]etition, alleging Appellant was
denied his right to a direct appeal from judgment of sentence by
the ineffective assistance of his trial counsel, who failed to
explain the legal consequences of the withdrawal and
discontinuance of his direct appeal. As relief, PCRA counsel was
requesting reinstatement of Appellant’s direct appeal, nunc pro
tunc.
On June 17, 2015, the [PCRA c]ourt conducted an
evidentiary hearing to address Appellant’s Amended PCRA
[p]etition.[2] Following the hearing, the record was transcribed
and the issues were briefed by counsel for both parties. In
accordance with Pennsylvania Rule of Criminal Procedure 908,
[the PCRA court] then conducted an independent review of the
record. On August 24, 2015, the [PCRA c]ourt issued an opinion
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1
Our review of the record reveals that Appellant did not sign a praecipe but
rather a motion to discontinue the appeal.
2
At the PCRA hearing, Appellant’s appointed counsel confirmed that
Appellant would pursue the same claim in a nunc pro tunc direct appeal that
he raised in his discontinued direct appeal. N.T., PCRA Hearing, 6/17/15
at 24. That claim was, as noted earlier, whether the trial court erred under
Alleyne in applying the deadly weapon enhancement pursuant to 204 Pa.
Code § 303.9.
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and order dismissing Appellant’s [a]mended PCRA [p]etition,
finding Appellant failed to meet his burden of proving that trial
counsel was ineffective or there was any resulting prejudice from
trial counsel’s withdrawal of Appellant’s direct appeal.
On September 22, 2015, Appellant filed a [n]otice of
[a]ppeal to the Superior Court of Pennsylvania. A [Rule 1925(b)
statement] was submitted on October 8, 2015, asserting that
trial counsel provided ineffective assistance of counsel and the
lower court erred in denying post-conviction relief where the
discontinuance by trial counsel of Appellant’s direct appeal
denied Appellant his right to appeal from judgment of sentence.
In the alternative, Appellant alleges the Commonwealth did not
meet its burden of proving a valid waiver by Appellant of his
right to a direct appeal from judgment of sentence.
PCRA Court Opinion, 10/19/15, at 1-4 (internal record citations and some
footnotes omitted).
On appeal,3 Appellant repeats the same two arguments. For ease of
disposition, we combine Appellant’s issues and restate them as follows.
Whether the PCRA court erred in denying his PCRA petition when his trial
counsel rendered ineffective assistance by discontinuing Appellant’s direct
appeal without properly colloquying him on the record to ensure that he
knowingly and intelligently waived his appeal rights. See Appellant’s Brief
at 1.
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3
“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of
fact and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).
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A PCRA petitioner is entitled to relief if he pleads and proves that prior
counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A.
§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner
must plead and prove by a preponderance of the evidence that (1) the
underlying legal claim has arguable merit; (2) counsel had no reasonable
basis for acting or failing to act; and (3) the petitioner suffered resulting
prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.
Super. 2015) (en banc). “A petitioner must prove all three factors of the
‘Pierce[4] test,’ or the claim fails.”5 Id.
It is settled that
[i]t is beyond cavil that a defendant has an absolute right to
appeal, Pa. CONST. Art. V, Sec. 9, and the ultimate decision of
whether to do so must be made by the defendant and not
counsel. At the same time, it is well settled that a defendant
may waive the right to appeal, provided such waiver is a
“knowing and intelligent” act on the part of a defendant.
Commonwealth v. Dosch, 501 A.2d 667, 670 (Pa. Super. 1985).
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4
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
5
Prejudice is presumed, however, in situations where counsel is ineffective
per se. Commonwealth v. Haun, 32 A.23d 697, 700 (Pa. 2011) (quoting
Commonwealth v. Lantzy, 736 A.2d 564, 570-71 (Pa. 1999)). Generally,
counsel is ineffective per se if he or she fails to file a requested appeal.
See Haun, supra; see Commonwealth v. Johnson, 889 A.2d 620, 622
(Pa. Super. 2005) (noting that a defendant “who is deprived entirely of his
right of direct appeal . . . is per se without effective assistance of counsel,
and is entitled to reinstatement of his direct appeal rights.”). The case
before us does not involve a situation implicating ineffectiveness per se.
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Because we consider the third Pierce prong, i.e., prejudice, to be
dispositive of this appeal, we need not determine the first two prongs.6 As
stated, after Appellant filed a pro se PCRA petition during the pendency of
his direct appeal, trial counsel sent him a letter advising him to discontinue
the direct appeal if Appellant wished to pursue the PCRA claims. Eventually,
Appellant signed a motion to discontinue the appeal, resulting in the
termination of the appeal. Appellant now asserts that trial counsel was
ineffective and seeks to have his direct appeal rights restored nunc pro tunc.
Appellant’s ineffectiveness claim is premised on the argument that trial
counsel failed to apprise him of the consequences of relinquishing his direct
appeal rights. To prevail on an effectiveness claim, Appellant must
demonstrate, inter alia, that he was prejudiced. It is settled that a petitioner
establishes prejudice by demonstrating 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. Hutchinson, 25 A.3d 277,
285 (Pa. 2011) (citation omitted). Thus, to establish prejudice here,
Appellant must demonstrate that the issue on direct appeal was meritorious
and that he would have prevailed but for trial counsel’s ineffective advice
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6
Although we do not rule on whether Appellant’s ineffectiveness claim has
arguable merit, we note that the record is bereft of any indication that trial
counsel advised Appellant of the consequences of terminating his direct
appeal rights prior to discontinuing the appeal. See Trial Counsel’s Letter,
11/5/14.
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regarding termination of direct appeal. To reiterate, the sole issue raised on
the discontinued direct appeal was whether the trial court had erred under
Alleyne and related cases in applying the deadly weapon enhancement
pursuant to 204 Pa. Code § 303.9. We agree with the PCRA court’s
conclusion that the application of the deadly weapon enhancement does not
run afoul of the Alleyne line of cases concerning the application of
mandatory minimum sentences. See Commonwealth v. Buterbaugh, 91
A.3d 1247, 1270 n.10 (Pa. Super. 2014) (en banc) (noting that Alleyne is
inapplicable to the use of the deadly weapon enhancement when
determining a defendant’s sentencing range). As we recently explained in
Commonwealth v. Ali, 112 A.3d at 1210 (Pa. Super. 2015), appeal
granted on other grounds, 127 A.3d 1286 (Pa. 2015):
Alleyne has no application to the sentencing
enhancements at issue in this case. The parameters of Alleyne
are limited to the imposition of mandatory minimum sentences,
i.e., where a legislature has prescribed a mandatory baseline
sentence that a trial court must apply if certain conditions are
met. The sentencing enhancements at issue impose no such
floor. Rather, the enhancements only direct a sentencing court
to consider a different range of potential minimum sentences,
while preserving a trial court’s discretion to fashion an individual
sentence. By their very character, sentencing enhancements do
not share the attributes of a mandatory minimum sentence that
the Supreme Court held to be elements of the offense that must
be submitted to a jury. The enhancements do not bind a trial
court to any particular sentencing floor, nor do they compel a
trial court in any given case to impose a sentence higher than
the court believes is warranted. They require only that a court
consider a higher range of possible minimum sentences. Even
then, the trial court need not sentence within that range; the
court only must consider it. Thus, even though the triggering
facts must be found by the judge and not the jury—which is one
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of the elements of an Apprendi[7] or Alleyne analysis—the
enhancements that the trial court applied in this case are not
unconstitutional under Alleyne.
. . . The enhancements do not bind the trial court to
impose any particular sentence, nor do they compel the court to
sentence within the specified range. Indeed, it is well-settled
that the sentencing guidelines ultimately are only advisory.
Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002).
Thus, Alleyne has no application to the enhancements.
Ali, A.3d at 1226. Because Appellant would not have obtained relief on the
Alleyne issue raised in the discontinued direct appeal, he does not satisfy
the third Pierce prong—prejudice. In other words, we cannot conclude that
the discontinuation of Appellant’s direct appeal produced a different result
than a proper disposition of the direct appeal itself would have produced.
Accordingly, we conclude that the PCRA court did not err in denying
Appellant’s PCRA petition seeking reinstatement of his direct appeal rights
nunc pro tunc.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2016
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7
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).
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