Com. v. Stewart, G. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GARY MONROE STEWART, : No. 1141 EDA 2018
:
Appellant :
Appeal from the PCRA Order, March 14, 2018,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0000603-2016
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 15, 2019
Gary Monroe Stewart appeals from the March 14, 2018 order entered in
the Court of Common Pleas of Delaware County that denied his petition filed
pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546
(“PCRA”). PCRA counsel has also filed an application to withdraw. We affirm.
The PCRA court set forth the following:
A criminal complaint was filed on January 14, 2016,
by Officer Crescent Parker, Lansdowne Police
Department, charging [appellant] with, inter alia,
driving under the influence – highest rate of
alcohol,[Endnote 1] and false identification to law
enforcement authorities.[Endnote 2]
[Endnote 1] 75 Pa.C.S.[A.] § 3802(c).
[Endnote 2] 18 Pa.C.S.[A.] § 4914.
A preliminary hearing was held on January 28, 2016,
at which, inter alia, the Commonwealth was
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permitted to amend the original allegation of driving
under the influence – highest rate of alcohol to driving
under the influence – general impairment,[Endnote 4]
as well as to include the additional charge of driving
while operating privilege is suspended (driving under
the influence related).[Endnote 5] Following the
prosecution’s presentation of evidence, the presiding
magisterial district judge held [appellant] for trial
court proceedings as to all charged offenses, including
those allowed per its amendment applications.
[Endnote 4] 75 Pa.C.S.[A.] § 3802(a)(1).
[Endnote 5] 75 Pa.C.S.[A.] § 1543(b).
[Appellant] on February 24, 2016, was formally
arraigned and the Office of the Delaware County
District Attorney then lodged against him a criminal
information averring, inter alia: Count 1 – Driving
Under the Influence – General Impairment (Third
Offense); Count 2 – False Identification to Law
Enforcement Authorities; and Count 5 – Driving While
Operating Privilege is Suspended – Driving Under the
Influence Related.
On March 29, 2016, [appellant] entered a counseled,
negotiated plea of guilty before this court as to:
Count 1 – Driving Under the Influence – General
Impairment (Tier Three (3) – Third Offense), a first
degree misdemeanor; Count 2 – False Identification
to Law Enforcement Authorities; and Count 5 –
Driving While Operating Privilege is Suspended –
Driving Under the Influence Related. With his lawyer
then waiving such an investigation,[Endnote 12]
[appellant] was sentenced immediately subsequent
and wholly consistent with the attorneys’ plea
agreement to the following: Count 1 (Driving Under
the Influence (Tier Three (3) – Third Offense), a
misdemeanor of the first degree) – A twelve (12) to
sixty (60) month incarceration term to be served at a
state correctional institution; Count 2 (False
Identification to Law Enforcement Authorities) – A
period of three (3) to twelve (12) months[’]
imprisonment to be served concurrent to [C]ount 1
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(driving under the influence); and Count 5 (Driving
While Operating Privilege is Suspended – Driving
Under the Influence Related) – A sixty (60) day
incarceration term to be served consecutive to the
concurrent sentences of [C]ount 1 (driving under the
influence) and [C]ount 2 (false identification to law
enforcement). Appellant was afforded the agreed on
and applicable time served credit and was deemed for
recidivism risk reduction incentive[Endnote 19]
consideration ineligible, absent objection.
[Endnote 12] See generally Pa.R.Crim.P.
702(A).
[Endnote 19] 61 Pa.C.S.[A.] [§] 4501
et seq.
Flowing from [appellant’s] at bar guilty plea, the
negotiations of counsel also encompassed a
Gagnon II[1] hearing and resultant disposition under
the docket, Commonwealth v. Stewart, No. 7717-
14 – Delaware County. Hence, just after the
above-captioned matter’s (No. 603-16) conclusion
with sentencing imposition, such a Gagnon II
proceeding (No. 7717-14) was held.
Upon the stipulation of counsel, appropriate notice as
to this Gagnon II hearing’s date, time, location, and
purpose was established as [were] [appellant’s]
violations of both past imposed probation and
previously granted parole per the criminal
information’s [C]ounts 1 – driving under the influence,
a misdemeanor of the first degree, and 8 – possession
of a controlled substance[Endnote 21] with an agreed
violation sentencing recommendation in the
aggregate of one (1) to three (3) years[’]
1 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v.
Ferguson, 761 A.2d 613 (Pa.Super. 2000) (explaining that when parolee or
probationer is detained pending revocation hearing, due process requires
determination at pre-revocation hearing (Gagnon I hearing) of probable
cause to believe violation was committed, and upon finding of probable cause,
a second, more comprehensive hearing (Gagnon II hearing) follows before
the trial court makes final revocation decision).
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imprisonment to be served wholly concurrent with the
at[-]bar sentence, save one (1) day time served
credit. This court found [appellant] in violation of past
directed probation and previously allowed parole,
revoked each, and sentenced [appellant] completely
consistent with the Gagnon aspect of the overall
dispositional agreement to an aggregate one (1) to
three (3) year imprisonment term to be served fully
concurrent to the at[-]bar sentence (No. 603-16).
[Endnote 21] 35 [P.S.] § 780-113(a)(16).
[Appellant] in the above-captioned matter (No. 603-
16) filed neither post–sentence motions, including any
application seeking to withdraw his negotiated guilty
plea, nor from the resultant sentencing judgment a
direct appeal to the Superior Court. [Appellant]
similarly regarding the Gagnon case, No. 7717-14,
lodged no post-sentence pleadings and/or an appeal.
[Appellant] filed on March 15, 2017, a
self-represented [PCRA] Motion. This PCRA pleading
being his first collateral lodging [appellant] was
entitled to counsel’s assistance. Via an order dated
March 21, 2017, and consistent with such a request of
[appellant], Scott D. Galloway, Esquire was for
purposes of this PCRA action designated to represent
[appellant].
On June 12, 2017, [appellant’s] appointed attorney
lodged an Amended [PCRA] Petition.
With the filing of the amended PCRA petition by
[appellant’s] collateral lawyer, this court directed the
prosecution to lodge an answer to that counseled
pleading.
The Commonwealth on February 14, 2018, filed its
answer through which the prosecution sought this
PCRA action’s dismissal, absent a hearing.
On February 20, 2018, this court entered a Notice of
Intent to Dismiss Pursuant to Pa.R.Crim.P. 907.
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Through an order of March 14, 2018,[Endnote 22] this
court dismissed [appellant’s] self-represented Motion
for [PCRA relief] and his counseled, Amended [PCRA]
Petition.
[Endnote 22] The [PCRA] court’s past
entered dismissal notice was forwarded
directly to [Attorney Galloway] by regular
and electronic mail on February 20, 2018,
as well as to [appellant] via both prepaid
regular and certified mail. Neither
[appellant] nor his PCRA attorney lodged
a response to this court’s dismissal notice.
[Appellant] on April 9, 2018, timely lodged by his
lawyer an appeal notice from this court’s dismissal of
his collateral pleadings.
The court in an order of that same date (April 9, 2018)
instructed [appellant] via his PCRA attorney to file
of-record a concise statement of [errors] complained
of on appeal [pursuant to Pa.R.A.P. 1925(b)].
[Appellant’s] counsel on May 2, 2018, timely
[complied].
PCRA court opinion, 10/5/18 at 1-6 (record citations, statutory citations, case
law citations, and endnotes 3, 6-11, 13-18, and 20 omitted).
The record reflects that on November 28, 2018, Attorney Galloway filed
with this court an application to withdraw and a brief pursuant to Anders v.
California, 386 U.S. 738, (1967). Counsel petitioning to withdraw from PCRA
representation must proceed not under Anders but under Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988) (en banc), and Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988). See Commonwealth v. Wrecks,
931 A.2d 717, 721-722 (Pa.Super. 2007) (citations omitted). “A
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Turner/Finley no merit letter is the appropriate filing. However, because an
Anders brief provides greater protection to the defendant, we may accept an
Anders brief in lieu of a Turner/Finley letter.” Commonwealth v.
Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004). Therefore, we
proceed to address whether Attorney Galloway’s Anders brief satisfies the
requirements of Turner/Finley.
Pursuant to Turner/Finley, before withdrawal on collateral appeal is
permitted, an independent review of the record by competent counsel is
required. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009).
Counsel must then submit a no-merit letter that (1) details the nature and
extent of his or her review; (2) lists each issue the petitioner wishes to have
reviewed; and (3) explains why the petitioner’s issues lack merit. Id. The
court then conducts its own independent review of the record to determine
whether the petition indeed lacks merit. Id. Counsel must also send
petitioner: “(1) a copy of the ‘no-merit’ letter/brief; (2) a copy of counsel’s
petition to withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.” Wrecks, 931 A.2d at 721.
Our review of the record demonstrates that Attorney Galloway has
complied with each of the above requirements. Additionally,
Attorney Galloway sent appellant copies of the Turner/Finley no-merit letter
and his application to withdraw and advised appellant of his right to retain
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new counsel or proceed pro se. See Commonwealth v. Widgins, 29 A.3d
816, 818 (Pa.Super. 2011). Appellant did not file a response.
We now address the following issue raised by appellant to determine
whether we agree with Attorney Galloway that it lacks merit:
Was trial counsel ineffective for allowing [appellant]
to plead guilty to driving under the influence [“DUI”]
and driving while suspended DUI-related when
counsel knew or should have known that the United
States Supreme Court granted certiorari in Birchfield
[v.] North Dakota[, U.S. , 136 S.Ct. 2160(2016),] on December 11, 2015?
Anders brief at 4 (full capitalization omitted).
In PCRA appeals, our scope of review “is limited to the findings of the
PCRA court and the evidence on the record of the PCRA court’s hearing, viewed
in the light most favorable to the prevailing party.” Commonwealth v. Sam,
952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because most
PCRA appeals involve questions of fact and law, we employ a mixed standard
of review. Pitts, 981 A.2d at 878. We defer to the PCRA court’s factual
findings and credibility determinations supported by the record.
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In
contrast, we review the PCRA court’s legal conclusions de novo. Id.Here, appellant asserts ineffective assistance of guilty plea counsel.
In evaluating claims of ineffective assistance of
counsel, we presume that counsel is effective.
Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
435, 441 (Pa. 1999). To overcome this presumption,
Appellant must establish three factors. First, that the
underlying claim has arguable merit. See
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Commonwealth v. Travaglia, 541 Pa. 108, 661
A.2d 352, 356 (Pa. 1995). Second, that counsel had
no reasonable basis for his action or inaction. Id. In
determining whether counsel’s action was reasonable,
we do not question whether there were other more
logical courses of action which counsel could have
pursued; rather, we must examine whether counsel’s
decisions had any reasonable basis. See Rollins, 738
A.2d at 441; Commonwealth v. (Charles) Pierce,
515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Finally,
“Appellant must establish that he has been prejudiced
by counsel’s ineffectiveness; in order to meet this
burden, he must show that ‘but for the act or omission
in question, the outcome of the proceedings would
have been different.’” See Rollins, 738 A.2d at 441
(quoting Travaglia, 661 A.2d at 357). A claim of
ineffectiveness may be denied by a showing that the
petitioner’s evidence fails to meet any of these
prongs. Commonwealth v. (Michael) Pierce, 567
Pa. 186, 786 A.2d 203, 221-22 (Pa. 2001);
Commonwealth v. Basemore, 560 Pa. 258, 744
A.2d 717, 738 n.23 (Pa. 2000); Commonwealth v.
Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (Pa. 1998)
(“If it is clear that Appellant has not demonstrated
that counsel’s act or omission adversely affected the
outcome of the proceedings, the claim may be
dismissed on that basis alone and the court need not
first determine whether the first and second prongs
have been met.”).
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).
In the context of a plea, a claim of ineffectiveness may provide relief
only if the alleged ineffectiveness caused an involuntary or unknowing plea.
See Commonwealth v. Mendoza, 730 A.2d 503, 505 (Pa.Super. 1999).
“[A] defendant is bound by the statements which he makes during his plea
colloquy.” Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa. 1997)
(citations omitted). As such, a defendant may not assert grounds for
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withdrawing the plea that contradict statements made when he entered the
plea. Id. (citation omitted).
Here, appellant complains that plea counsel should not have permitted
him to plead guilty on March 29, 2016, because plea counsel knew or should
have known that the United States Supreme Court had granted certiorari in
Birchfield, supra, and that plea counsel should have anticipated that the
High Court’s June 23, 2016 decision could have positively impacted his case.
(Anders brief at 11-13.)
It is well settled that counsel “cannot be deemed ineffective for failing
to predict developments or changes in the law.” Commonwealth v.
Williams, 936 A.2d 12, 28 (Pa. 2007), quoting Commonwealth v. Gribble,
863 A.2d 445, 464 (Pa. 2004). Therefore, we agree with Attorney Galloway
that this claim lacks arguable merit.
Having conducted an independent review of the record, this court is
satisfied that the issue raised in appellant’s petition is meritless and that there
are no other issues that support a grant of relief. Accordingly, the record
supports the PCRA court’s determination and that determination is free of legal
error. We, therefore, grant Attorney Galloway’s petition to withdraw and
affirm the PCRA court’s order.
Petition to withdraw granted. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/19
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