Com. v. Gibboney, D. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
DOUGLAS GIBBONEY, :
:
Appellant : No. 1904 EDA 2014
Appeal from the PCRA Order June 2, 2014,
Court of Common Pleas, Chester County,
Criminal Division at No. CP-15-CR-0003626-2012
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.
MEMORANDUM BY DONOHUE, J.:
FILED JUNE 23, 2015
Douglas Gibboney (“Gibboney”) appeals pro se from the order of court
dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and permitting his court-appointed
counsel to withdraw. For the following reasons, we affirm.
On January 10, 2013, Gibboney pled guilty to one count of driving
under the influence (“DUI”), 75 Pa.C.S.A. § 3802(c), and one count of
driving under suspension, DUI related (”DUS”), 75 Pa.C.S.A. §
1543(b)(1.1)(iii).1 He was sentenced to one to five years of incarceration on
the DUI charge and a mandatory term of two to five years on the DUS
1
This statute provides as follows: “A third or subsequent violation of this
paragraph shall constitute a misdemeanor of the first degree, and upon
conviction thereof the person shall be sentenced to pay a fine of $5,000 and
to undergo imprisonment for not less than two years.” 75 Pa.C.S.A.
§ 1543(b)(1.1)(iii).
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charge. Gibboney made no attempt to withdraw his guilty plea or appeal his
judgment of sentence.
On December 23, 2013, Gibboney sent a letter to the trial court asking
for appointed counsel for purposes of a PCRA petition. The trial court
granted Gibboney’s request and appointed Robert Brendza, Esquire
(“Counsel”), to represent Gibboney. Rather than file an amended PCRA
petition, Counsel filed a motion seeking to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). On April 8,
2014, the trial court granted Counsel’s request to withdraw and gave
Gibboney notice of its intent to dismiss his PCRA petition pursuant to
Pa.R.Crim.P. 907. Gibboney sent three pro se letters in response thereto.
The trial court concluded that these letters raised no additional issues or
facts that would entitle Gibboney to relief, and on June 2, 2014, it dismissed
Gibboney’s PCRA petition. This timely appeal follows.
In his brief on appeal, Gibboney sets forth ten issues in his statement
of questions involved, but presents argument as to only two issues in the
argument section of his brief. See Gibboney’s Brief at 3-4, 16-18. All issues
that Gibboney included in his statement of questions involved but for which
he did not provide argument are waived. See Commonwealth v. J.F., 800
A.2d 942, 946 n.10 (Pa. Super. 2002) (holding that an issue set forth in
statement of questions involved but with no corresponding argument in brief
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is waived). Furthermore, Gibboney did not include the first issue he
presents in the argument section of his brief in his court-ordered statement
of matters complained of on appeal in his Pa.R.A.P. 1925(b) statement, and
so it, too, has been waived. Commonwealth v. Jackson, 10 A.3d 341,
347 n.4 (Pa. Super. 2010); Pa.R.A.P. 1925(b)(4)(vii).
The only remaining, properly preserved claim is that the PCRA court
erred in denying Gibboney’s request for discovery in conjunction with his
PCRA action.2 Gibboney’s Brief at 17. An appellate court reviews the PCRA
court’s denial of discovery for an abuse of discretion. See Commonwealth
v. Reid, 99 A.3d 470, 486 (Pa. 2014).
Pennsylvania Rule of Criminal Procedure 902 provides, in relevant
part, that “[e]xcept as provided in paragraph (E)(2) [relating to a first,
counseled petition in a death penalty case], no discovery shall be permitted
at any stage of the proceedings, except upon leave of court after a showing
of exceptional circumstances.” Pa.R.Crim.P. 902(E)(1). “[M]ere speculation
that exculpatory evidence might exist does not constitute an exceptional
circumstance warranting discovery.” Commonwealth v. Frey, 41 A.3d
605, 612 (Pa. Super. 2012).
2
This request came in one of the letters Gibboney sent in response to the
Pa.R.Crim.P. 907 notice of intent to dismiss.
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The only discernable allegation Gibboney makes in support of his claim
is that “errors may have been made on PCRA[.]” Gibboney’s Brief at 17.3
He does not allege, much less establish, “exceptional circumstances” so as
to permit discovery pursuant to Rule 902(E)(1). Gibboney’s claim is “mere
speculation” that there may be exculpatory evidence, and this is not
sufficient to grant his request. We therefore find no abuse of discretion in
the PCRA court’s determination.
Finally, while this appeal was pending, Gibboney filed a document
titled “application for remand,” in which he claims that this appeal cannot be
decided without an evidentiary hearing on the issues he raised below. We
disagree, as we have found the issues he has raised waived or without
merit. Accordingly, we deny Gibboney’s request.
Order affirmed. Application for remand denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
3
To the extent that Gibboney attempts to raise a due process violation
claim in connection with the PCRA court’s denial of his request for this
information, this claim is waived for his failure to raise it in his Rule 1925(b)
statement or at any point before the PCRA court. See Jackson, 10 A.3d at
347 n.4; Commonwealth v. Haughwout, 837 A.2d 480, 486 (Pa. Super.
2003) (issues, even of constitutional dimension, are waived if not raised in
the court below).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
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