Com. v. Weidman, C. ( 2014 )

J-S54039-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CLINT TROY WEIDMAN
Appellant No. 360 MDA 2014
Appeal from the Order Entered January 3, 2014
In the Court of Common Pleas of Lebanon County
Criminal Division at No: CP-38-CR-0000647-2010
BEFORE: LAZARUS, MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 13, 2014
Appellant, Clint Troy Weidman, appeals from the trial court’s January
2, 2014 order dismissing his petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
A jury convicted Appellant of corrupt organizations, retail theft,
conspiracy, and theft by deception in connection with Appellant’s
participation in a theft ring that repeatedly stole merchandise from a Wal-
Mart in Lebanon County. On April 27, 2011 the trial court imposed six to
fourteen years of incarceration and ordered Appellant to make restitution to
Wal-Mart. The trial court denied Appellant’s post-sentence motions on
August 16, 2011, and Appellant filed a timely notice of appeal on September
14, 2011. This Court affirmed the judgment of sentence on April 9, 2012.
J-S54039-14
The Pennsylvania Supreme Court denied allowance of appeal on September
11, 2012.
On December 18, 2012, Appellant filed a timely pro se PCRA petition,
his first. Appointed counsel filed an amended petition on April 1, 2013
alleging ineffective assistance of counsel. The PCRA court conducted a
hearing on July 31, 2013 at which Appellant, Appellant’s trial attorneys, and
Appellant’s mother testified. Subsequently, on October 9, 2013, appointed
PCRA counsel elected to proceed pursuant to Commonweatlh v. Turner,
544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc). Appellant did not respond to counsel’s
Turner/Finley letter. On October 18, 2013, the PCRA court entered an
order permitting counsel to withdraw. Appellant took no further action prior
to the PCRA court’s January 2, 2014 order dismissing Appellant’s petition.
He filed a timely pro se notice of appeal on February 3, 2014.
Appellant raises two issues for our review.
A. Did the PCRA court err in granting PCRA counsel leave to
withdraw where:
1. Counsel’s Turner/Finley letter contradicted counsel’s own
work:
2. And, Appellant was entitled to a counseled appeal to
pursue claims of merit?
B. Did the PCRA court err in not finding that Appellant’s trial
counsel was ineffective?
Appellant’s Brief at 4.
-2-
J-S54039-14
On appeal, we will reverse only if the PCRA court’s decision lacks
support in the record or resulted from a legal error. Commonwealth v.
Haun, 984 A.2d 557, 558 (Pa. 2009). Appellant first argues the trial court
erred in granting PCRA counsel’s petition to withdraw. In Commonwealth
v. Pitts, 981 A.2d 875 (Pa. 2009), our Supreme Court held that a PCRA
petitioner must assert any deficiency in counsel’s Turner/Finley letter in
response to counsel’s no merit letter or in response to the trial court’s notice
of intent to dismiss. Id. at 879 n.3. Failure to do so results in waiver of
that issue. Id. Here, Appellant did not challenge the adequacy of counsel’s
Turner/Finley letter prior to filing his appeal. Indeed, Appellant took no
action in response to counsel’s no merit letter and petition to withdraw, and
further took no action between the PCRA court’s October 18, 2013 order
permitting counsel to withdraw and its January 3, 2014 order dismissing
Appellant’s petition. Pursuant to Pitts, Appellant has failed to preserve that
issue for review.
Likewise, Appellant argues in support of his first assertion of error that
PCRA counsel’s stewardship was ineffective.1 Once again, Appellant failed to
preserve this issue based on his inaction prior to appeal:
____________________________________________
1
In Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012),
appeal denied, 64 A.3d 631 (2013), we observed that an assertion of a
defective Turner/Finley letter and an assertion of PCRA counsel’s
ineffectiveness are distinct issues.
-3-
J-S54039-14
[Petitioner’s] failure, prior to his PCRA appeal, to argue
PCRA counsel’s ineffectiveness [. . .] results in waiver of the
issue of PCRA counsel's ineffectiveness. [Petitioner’s] attempt to
obtain review, on collateral appeal, of an issue not raised in the
proceedings below amounts to a serial PCRA petition on PCRA
appeal. Although [petitioner] asserts his PCRA appeal was the
first opportunity he had to challenge PCRA counsel’s stewardship
because he was no longer represented by PCRA counsel, he
could have challenged PCRA counsel’s stewardship after
receiving counsel’s withdrawal letter and the notice of the PCRA
court’s intent to dismiss his petition pursuant to Pa.R.Crim.P.
907, yet he failed to do so.
Id. at 880 n.4.
After Pitts, our Courts have continued to struggle with the proper
means of addressing PCRA counsel’s alleged ineffectiveness. Nonetheless, a
recent en banc panel of this Court explained that the principles expressed in
footnotes three and four of Pitts remain the binding law of this
Commonwealth. Commonwealth v. Henkel, 90 A.3d 16, 25-30 (Pa.
Super. 2014) (en banc).2 We are cognizant that Appellant raised his issues
concerning PCRA counsel in his Pa.R.A.P. 1925(b) statement of errors. As a
result, the PCRA court had the opportunity to address them. The same was
____________________________________________
2
The Henkel Court granted en banc review to address “a perceived conflict
among authorities as to whether this Court may entertain claims of PCRA
counsel ineffectiveness raised for the first time on appeal.” Id. at 19. The
Henkel Court analyzed our Supreme Court’s treatment of the issue in Pitts
and subsequent cases. See id at 20 (citing Commonwealth v. Jette, 23
A.3d. 1032, 1044 n.14 (Pa. 2011); Commonwealth v. Hill, 16 A.3d 484,
497 n.17 (Pa. 2011); Commonwealth v. Colavita, 993 A.2d 874, 894 n.12
(Pa. 2010); Commonwealth v. Ligons, 971 A.2d 1125 (Pa.
2009)(plurality). We observed that these cases “all clarify that claims of
PCRA counsel’s ineffectiveness may not be raised for the first time on
appeal.” Id.-4-
J-S54039-14
true in Henkel, but this Court nevertheless found the petitioner’s claims
unreviewable. Id. at 19, 30. In light of Pitts and Henkel, we cannot
review Appellant’s first assertion of error.
Next, we consider Appellant’s assertion of ineffective assistance of trial
counsel, an issue he raised in his amended PCRA petition and preserved in
his Pa.R.A.P. 1925(b) statement. In his pro se brief, Appellant argues plea
counsel was ineffective for failing to explain to Appellant the terms of a plea
agreement proposed by the Commonwealth. Specifically, Appellant asserts
the Commonwealth offered to recommend a 14-month minimum sentence
and restitution. Appellant claims counsel failed to inform him of the
restitution provision and that he waived his preliminary hearing without
knowledge of all terms of the proposed plea agreement.
To establish ineffective assistance of counsel, per § 9543(a)(2)(ii) of
the PCRA, the petitioner must plead and prove by a preponderance of the
evidence that the underlying issue is of arguable merit, that counsel had no
reasonable strategic basis for the act or omission, and that counsel’s error
was prejudicial to the petitioner. Commonwealth v. Sepulveda, 55 A.3d
1108, 1117 (Pa. 2012). Counsel is presumed effective, and the petitioner’s
failure to establish any one of the three elements is fatal to the claim. Id. at
1117-18.
Here, Appellant’s assertion of counsel’s ineffectiveness lacks arguable
merit because the record indicates that he was aware of the
-5-
J-S54039-14
Commonwealth’s proposed plea agreement. Appellant’s plea counsel
testified at the PCRA hearing that the Commonwealth’s plea offers were
explained to Appellant. N.T. PCRA Hearing, 7/31/13, at 8, 26-27, 29-32.
Counsel testified that Appellant rejected the Commonwealth’s final plea offer
and chose to go to trial instead. Id. at 30-31, 53. Additionally, the
Commonwealth revoked one of its plea offers after it discovered Appellant
was sending threatening communications to potential trial witnesses. Id. at
28-29.
The PCRA court found counsel’s testimony credible and rejected
Appellant’s argument for lack of evidentiary support. PCRA Court Opinion,
1/3/14, at E.3 Since the record supports the PCRA court’s decision, we will
not disturb it on appeal. See Commonwealth v. Spotz, 84 A.3d 294, 319
(Pa. 2014) (noting that reviewing courts should defer to the PCRA court’s
credibility findings where those findings are supported by the record).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2014
____________________________________________
3
The PCRA court did not paginate its opinion, but organized into sections in
alphabetical order.
-6-