Com. v. Durr, M. ( 2017 )

J-S59036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL R. DURR :
:
Appellant : No. 2192 EDA 2016
Appeal from the PCRA Order June 30, 2016
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001979-2015
BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 12, 2017
Appellant, Michael R. Durr, appeals pro se from the order entered in
the Delaware County Court or Common Pleas denying his first Post
Conviction Relief Act1 (“PCRA”) petition.2 We affirm.
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 In the instant case, following the filing of the first PCRA petition, Appellant
filed a plethora of pro se motions and petitions. See Docket, 8/22/16, at 1-
4; see also PCRA Ct. Op., 8/18/16, at 5-8. On June 30, 2016, the court
entered several orders. See Docket, 8/22/16, at 3-4. Appellant identifies
the June 30th order on appeal as follows: “The June 30th order which is the
subject of the instant appeal dismissed [Appellant’s] first PCRA petition.”
See Appellant’s Brief at 2. In a separate order, on June 30th, the court
dismissed Appellant’s second pro se PCRA petition filed on May 13, 2016, in
a separate order. See Order, 6/30/16.
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The facts are unnecessary for our disposition. On June 10, 2015,
Appellant entered into a negotiated guilty plea to simple assault 3 and
terroristic threats.4 For simple assault, Appellant was sentenced to time
served to 23 months’ incarceration, with immediate parole status. For
terroristic threats, Appellant was sentenced to a two-year term of county
probation to be served consecutively to the period of parole for simple
assault. See N.T. Sentencing Hr’g, 6/10/15, at 8-9. On September 21,
2015, Appellant filed a pro se PCRA petition. On September 22, 2015,
counsel was appointed.5 On March 10, 2016, counsel filed an application to
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3 18 Pa.C.S. § 2701(a)(1).
4 18 Pa.C.S. § 2706(a)(1).
5 The PCRA court noted:
Despite this court promptly appointing [Henry]
DiBenedetto Forrest, Esquire, as his collateral lawyer,
[Appellant] subsequently forwarded to this court’s
chambers and/or the Delaware County Judicial Support
Office numerous and varied self-represented pleadings as
follows: Motion for discovery; Motion for Miscarriage of
Justice; Petitioner’s Right to an Evidentiary Hearing;
Motion to Withdrawal [sic] Guilty Plea; Writ of Habeas
Corpus; and an Application for Writ of Habeas Corpus.
See Correspondences dated October 13, 2015; November
5, 2015; December 7, 2015; January 7, 2016; January 12,
2016; and January 25, 2016. Recognizing [Appellant] was
represented at all such times by PCRA counsel, the court
instructed the Delaware County Office of Judicial Support
to lodge as well as docket these pleadings and forwarded
copies of all the same to Attorney DiBenedetto Forrest.
(Footnote Continued Next Page)
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withdraw appearance and a Turner/Finley6 “no merit” letter. On May 3,
2016, the PCRA entered an order granting counsel’s application to withdraw
and notice of intent to dismiss without a hearing pursuant to Pa.R.Crim.P.
907. On June 30, 2016, the court denied the PCRA petition. This timely pro
se appeal followed.
Appellant raises the following issue for our review: “Whether PCRA
counsel was ineffective for failing to file an amended PCRA, for failing to
raise counsel’s ineffectiveness for advising [A]ppellant to plead guilty, and
for failing to investigate.” Appellant’s Brief at 3. Appellant contends that
“PCRA counsel failure to amend the PCRA to raise counsel’s ineffectiveness
for advising appellant to plead guilty when facts and evidence could have
been in his favor resulting in a victim of institutional sexual assault being set
up and put in prison by the perpertrator . . . .” Id. at 7 (reproduced
verbatim). Appellant claims “PCRA counsel’s failure to raise counsel’s
ineffectiveness for advising [A]ppellant to plead guilty [when] the
[A]ppellant tried to discuss the facts of the case with PCRA, but counsel
(Footnote Continued) _______________________
PCRA Ct. Op. at 4. The PCRA court opined: “Relevant to these various, self-
represented pleadings of [Appellant], a defendant may proceed pro se or can
enjoy the benefit of an attorney’s stewardship; however, a ‘hybrid
representation’ of pro se litigation contemporaneous with a lawyer’s of-
record representation is prohibited. Commonwealth v. Nischan, 928 A.2d
349, 355 (Pa. Super. 2007).” PCRA Ct. Op. at 4 n.4.
6 See Commonwealth v. Finley, 481 U.S. 551 (1987); Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988).
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refused to listen.” Id. at 8. “PCRA counsel was ineffective for failing to
investigate the facts of the case.” Id.
As a prefatory matter, we consider whether Appellant has waived the
issues raised on appeal based upon his response to the court’s order to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. On July 18,
2016, Appellant was ordered to file a Rule 1925(b) statement. On August 4,
2016, Appellant filed a response to the July 18th order.7 The trial court
found that “[c]learly, [Appellant] timely received copies of the court’s order
directing him to lodge a statement of matters complained of on appeal. As
[Appellant] has failed to comply with this court’s instruction, his issues on
appeal should be deemed waived.” PCRA Ct. Op. at 11.
In his timely response to the court’s July 18th order, Appellant “avers
how can he provide the requirements of the order by this court and submit a
1925(b), when [he] is being deprived critical information that is deliberately
being withheld by Comm. of Del.” Correspondence, 8/4/16, at 1. “Appellant
states Denise McCray, defense attorney was ineffective on June 10, 2015, by
way advicing Defendant to sign a plea bargain, without fully, thoroughly, &
properly investigating the in said case No. 1979-15, by this failure Defendant
Michael Durr, was exposed to extreme prejudice, & is now reconignized in
light as outrageously baised by genderly prejudicing Defendant & sideding
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7 The document was docketed as “Case Correspondence.”
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with the female Plaintiff over her obligations as defense counsel.” Id.
(reproduced verbatim). We decline to find waiver on the basis of a failure to
file a statement of errors complained of on appeal.8
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v. Abu-
Jamal, 941 A.2d 1263, 1267 (Pa. 2008). “Furthermore, we note that we
are bound by the PCRA court’s credibility determinations where there is
record support for those determinations.” Commonwealth v. Santiago,
855 A.2d 682, 694 (Pa. 2004).
With respect to claims of counsel’s ineffectiveness,
[C]ounsel is presumed to have provided effective
representation unless the PCRA petitioner pleads and
proves that: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable basis for his or her conduct;
and (3) Appellant was prejudiced by counsel’s action or
omission.[9] To demonstrate prejudice, an appellant must
prove that a reasonable probability of acquittal existed but
for the action or omission of trial counsel. A claim of
ineffective assistance of counsel will fail if the petitioner
does not meet any of the three prongs. Further, a PCRA
petitioner must exhibit a concerted effort to develop his
ineffectiveness claim and may not rely on boilerplate
allegations of ineffectiveness.
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8 We note that “we may uphold a decision of the trial court if there is any
proper basis for the result reached.” Commonwealth v. Rosser, 135 A.3d
1077, 1087 n.5 (Pa. Super. 2016) (en banc) (citation omitted).
9 This test was enunciated in Commonwealth v. Pierce, 527 A.2d 973,
975-76 (Pa. 1987).
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Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008)
(punctuation and citations omitted).
In determining whether counsel’s action was reasonable, the court
does not consider “whether there were other more logical courses of action”
counsel could have pursued, but simply examines whether counsel’s decision
had any reasonable basis. Commonwealth v. Washington, 927 A.2d 586,
594 (Pa. 2007). Conversely, to merit relief, counsel’s action, given all the
other available alternatives, must be “so unreasonable that no competent
lawyer would have chosen it.” Commonwealth v. Miller, 431 A.2d 233,
234 (Pa. 1981) (citation omitted). “The burden of proving ineffectiveness
rests with [a]ppellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa.
2007).
Appellant presents a layered claim of PCRA counsel’s ineffectiveness.
Layered claims of ineffectiveness “are not wholly distinct
from the underlying claims[,]” because “proof of the
underlying claim is an essential element of the derivative
ineffectiveness claim[.]” “In determining a layered
claim of ineffectiveness, the critical inquiry is
whether the first attorney that the defendant asserts
was ineffective did, in fact, render ineffective
assistance of counsel. If that attorney was effective,
then subsequent counsel cannot be deemed
ineffective for failing to raise the underlying issue.”
Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012)
(citations omitted and emphasis added). Furthermore,
[A] petitioner must plead in his PCRA petition that his prior
counsel, whose alleged ineffectiveness is at issue, was
ineffective for failing to raise the claim that counsel who
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preceded him was ineffective in taking or omitting some
action. In addition, a petitioner must present argument . .
. on the three prongs of the Pierce test as to each
relevant layer of representation.
Commonwealth v. Reaves, 923 A.2d 1119, 1128 (Pa. 2007) (citations
omitted). In Commonwealth v. Rathfon, 899 A.2d 365 (Pa. Super. 2006),
this Court opined:
“A criminal defendant has the right to effective counsel
during a plea process as well as during trial.”
[Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.
Super. 2002).] “A defendant is permitted to withdraw his
guilty plea under the PCRA if ineffective assistance of
counsel caused the defendant to enter an involuntary plea
of guilty.” Commonwealth v. Kersteter, 877 A.2d 466,
468 (Pa. Super. 2005).
We conduct our review of such a claim in accordance
with the three-pronged ineffectiveness test under
section 9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. §
9543(a)(2)(ii). See [Commonwealth v.] Lynch[,
820 A.2d 728, 732 (Pa. Super. 2003)]. “The
voluntariness of the plea depends on whether
counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.” Id. at
733 (quoting [Hickman, 799 A.2d at 141].
* * *
Kersteter, 877 A.2d at 46[8]–69. Moreover, trial counsel
is presumed to be effective. Commonwealth v. Carter, [
] 656 A.2d 463, 465 (Pa. 1995).
Id. at 369.
“Allegations of ineffectiveness in connection with the entry of a guilty
plea will serve as a basis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea.” Commonwealth v.
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Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (citation omitted). “[T]he
defendant must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Rathfon, 899 A.2d at 370 (citation omitted).
Because a plea of guilty effectively waives all non-
jurisdictional defects and defenses, after sentencing,
allegations of ineffectiveness of counsel in this context
provide a basis for withdrawal of the plea only where there
is a causal nexus between counsel’s ineffectiveness, if any,
and an unknowing or involuntary plea. The guilty plea
hearing becomes the significant procedure under scrutiny.
The focus of the inquiry is whether the accused was misled
or misinformed and acted under that misguided influence
when entering the guilty plea.
Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)
(citations and quotation marks omitted).
As an additional prefatory matter, we consider whether Appellant has
waived the issue of PCRA counsel’s ineffectiveness for failing to raise it prior
to the instant appeal. In Commonwealth v. Henkel, 90 A.3d 16 (Pa.
Super. 2014) (en banc), this Court opined:
[The a]ppellant’s first three issues all involve claims
pertaining to PCRA counsel’s representation. Neither party
has cited the Pennsylvania Supreme Court’s modern
treatment of this issue in numerous cases.
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, [ ]
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993 A.2d 874, 893 n. 12 ([Pa.] 2010);[10]
Commonwealth v. Pitts, [ ] 981 A.2d 875 ([Pa.] 2009);
Commonwealth v. Ligons, [ ] 971 A.2d 1125 ([Pa.]
2009) (plurality); Commonwealth v. Potter, [ ] 58 A.3d
752 ([Pa.] 2012) (per curiam order). Nor have the parties
addressed this Court’s most comprehensive discussion of
Pennsylvania Supreme Court precedent on this matter,
Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012)
(collecting cases). Those decisions all clarify that
claims of PCRA counsel's ineffectiveness may not be
raised for the first time on appeal.
Id. at 20 (emphasis added). In Ford, this Court opined:
We acknowledge that [the a]ppellant did raise the
ineffectiveness of PCRA counsel issue in his Pa.R.A.P.
1925(b) statement after the Supreme Court remanded the
matter and new counsel was appointed for purposes of
advancing his appeal nunc pro tunc, i.e., at the first
opportunity. Additionally, the PCRA court addressed the
issue in its Pa.R.A.P. 1925(a) opinion. [The a]ppellant’s
question also pertains to matters of record and does not
require this Court to engage in any factual findings. Thus,
several of the concerns expressed for not addressing such
a claim are not present. Nonetheless, a majority of the
Supreme Court agrees that issues of PCRA counsel
effectiveness must be raised in a serial PCRA petition or in
response to a notice of dismissal before the PCRA court.
In addition, the Supreme Court’s remand order in the
instant case allowed for the appointment of counsel, not
for the collateral review process to begin anew. Therefore,
we hold that, absent recognition of a constitutional right to
effective collateral review counsel, claims of PCRA counsel
ineffectiveness cannot be raised for the first time after a
notice of appeal has been taken from the underlying PCRA
matter.
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10 The Pennsylvania Supreme Court stated: “claims of PCRA counsel
ineffectiveness may not be raised for the first time at the direct appeal level,
much less at the discretionary appeal level.” Henkel, 90 A.3d at 27.
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Ford, 44 A.3d at 1200-01. Furthermore,
As noted, in Jette, as in [Commonwealth v.] Burkett,
[5 A.3d 1260 (Pa. Super. 2010)], the PCRA court did not
file a notice of intent to dismiss because it held a hearing.
However, the Jette Court did not distinguish Pitts on that
ground and signaled that Colavita was binding precedent
on the issue of whether a claim of PCRA counsel
ineffectiveness could be raised for the first time on appeal.
Consequently, the Supreme Court concluded after the
Burkett decision that a PCRA petitioner cannot assert
claims of PCRA counsel ineffectiveness for the first
time on appeal, regardless of whether a Rule 907[11]
or 909 notice is involved.
Henkel, 90 A.3d at 28 (emphasis added).
In the case sub judice, Appellant asserted claims of PCRA counsel’s
ineffectiveness for the first time on appeal. Therefore, we could find the
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11 Rule 907 provides, in pertinent part, as follows:
Except as provided in Rule 909 for death penalty cases,
(1) the judge shall promptly review the petition, any
answer by the attorney for the Commonwealth, and other
matters of record relating to the defendant’s claim(s). If
the judge is satisfied from this review that there are no
genuine issues concerning any material fact and that the
defendant is not entitled to post-conviction collateral relief,
and no purpose would be served by any further
proceedings, the judge shall give notice to the parties of
the intention to dismiss the petition and shall state in the
notice the reasons for the dismissal. The defendant may
respond to the proposed dismissal within 20 days of the
date of the notice. The judge thereafter shall order the
petition dismissed, grant leave to file an amended petition,
or direct that the proceedings continue.
Pa.R.Crim.P. 907(1).
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issue waived. See id.; Ford, 44 A.3d at 1200-01. The PCRA court opined
that “this court on the instant record has no cause to find either trial and/or
appointed [PCRA] counsel’s stewardship anything other than competent.”
Order Granting Counsel’s Application to Withdraw and Notice to Dismiss
Without a Hearing Pursuant to Pa.R.Crim.P. 907, 5/3/16, at 10. Given the
PCRA court’s pronouncement, we will assume, arguendo, that it is not
waived. The PCRA court did not find trial counsel ineffective. See id. at 1-
10.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the PCRA court’s opinion, we affirm, in part, on the basis
of the PCRA court’s Order Granting Counsel’s Application to Withdraw and
Notice to Dismiss Without a Hearing Pursuant to Pa.R.Crim.P. 907, finding
that trial counsel was not ineffective. See id. at 1-10 Therefore, the
layered claim of ineffective assistance of PCRA counsel is meritless. See
Rykard, 55 A.3d at 1190. Accordingly, we affirm the order of the PCRA
court dismissing Appellant’s PCRA petition.
Order affirmed.
PJE Bender joins the Memorandum.
Judge Ott Concurs in the Result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2017
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Circulated 09/29/2017 04:25 PM