Com. v. Mamuzich, K. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
v. :
:
KEVIN MAMUZICH, : No. 3098 EDA 2014
:
Appellant :
Appeal from the PCRA Order, September 8, 2014,
in the Court of Common Pleas of Northampton County
Criminal Division at Nos. CP-48-CR-0003009-2012,
CP-48-CR-0003010-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 14, 2015
Appellant, Kevin Mamuzich, appeals the order of the Court of Common
Pleas of Northampton County that dismissed his petition brought pursuant to
the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). We
affirm.
A prior panel of this court summarized the facts and procedural history
of this case as follows:
The Commonwealth charged Appellant with various
crimes in two criminal informations stemming from
an incident on July 29, 2012. On that date, police
arrested Appellant after he entered a private
residence, was confronted by one of the residents,
and then left with personal property. Police
recovered the stolen items from Appellant’s person.
The Commonwealth charged Appellant with burglary,
criminal trespass, theft by unlawful taking, receiving
stolen property, and loitering and prowling at
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nighttime. While imprisoned, Appellant sent letters
to the victims. As a result, the Commonwealth
charged him, in the other criminal information, with
intimidation of a witness/victim.
On February 4, 2013, Appellant pled guilty to
burglary. In exchange, the Commonwealth agreed
to withdraw all of the remaining charges in both
criminal informations and recommended a low-end,
standard range sentence. After an oral colloquy, the
trial court accepted Appellant’s guilty plea. The trial
court sentenced Appellant pursuant to the
Commonwealth’s recommendation, imposing a term
of imprisonment of two to four years.
On February 13, 2013, trial counsel filed a
post-sentence motion to withdraw Appellant’s guilty
plea, as well as a motion to withdraw as counsel.
The trial court permitted trial counsel to withdraw,
appointed counsel to represent Appellant on the
motion to withdraw his guilty plea, and scheduled a
hearing. After the hearing, the trial court denied
relief by order and opinion entered on March 21,
2013.
Commonwealth v. Mamuzich, No. 1185 EDA 2013, unpublished
memorandum at 1-2 (Pa.Super. filed December 19, 2013). Appellant
appealed and raised two issues regarding his guilty plea. Id. at 2-3. This
court addressed appellant’s arguments and found the record supported the
trial court’s denial of appellant’s post-sentence motion to withdraw his guilty
plea. We determined appellant voluntarily, knowingly, and intelligently
entered his guilty plea; hence, we affirmed.
On February 11, 2014, the trial court received a letter from appellant
dated February 6, 2014, in which he complained that appellate counsel failed
to timely notify him regarding this court’s December 19, 2013 decision, and
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appellate counsel failed to timely appeal the Superior Court’s decision to the
Pennsylvania Supreme Court. By order dated February 11, 2014, the trial
court appointed Christopher Brett, Esq., as PCRA counsel, to represent
appellant with any PCRA issues. On February 28, 2014, Attorney Brett
appeared at an issue-framing conference and presented the following issues:
I. Ineffective assistance of trial counsel:
A. Failure to fully explain nature and
elements of charges to the
Defendant of which Defendant was
pleading guilty.
B. Failure to inform Defendant that
Defendant was going to enter a
plea of guilty to the negotiated
plea.
C. Failure to explore possible
Defenses to the charges and
possible exculpatory evidence
offered by Defendant.
II. Ineffective assistance of Appellate counsel:
A. Failure to timely file an appeal of
Superior Court Order Denying
Defendant’s Appellate brief
supporting [sic] Defendant’s
motion to withdraw guilty plea.
Certified record, document #51 at 3.
On March 12, 2014, an order was issued scheduling a PCRA hearing
for May 5, 2014. At the May 5, 2014 PCRA hearing, the trial court
determined it would not hear testimony regarding appellant’s allegations of
ineffective assistance of counsel with regard to the guilty plea because that
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issue had already been pursued and addressed by this court in our
December 19, 2013 memorandum decision.
Regarding the failure to file a petition for allowance of appeal, the trial
court did hear testimony from appellate counsel, Brian Monahan, Esq., who
stated he had determined that none of the issues asserted in the case
warranted the filing of a petition for allowance of appeal. (Notes of
testimony, 5/5/14 at 10.) Attorney Monahan testified that he did prepare a
petition for allocatur along with a letter to appellant indicating he did not
believe there was any “jurisdiction in the Pennsylvania Supreme Court.” 1
(Id. at 10-11.) He acknowledged his letter was sent to appellant several
days beyond the 30-day appeal period. (Id. at 11.) Attorney Monahan also
testified appellant contacted him by letter after the 30-day appeal period
indicating his desire to appeal. (Id.) Attorney Monahan admitted he could
have sought nunc pro tunc relief, but he did not do so because he believed
there was no basis for an appeal. (Id. at 12.)
On May 15, 2014, Attorney Brett submitted a no-merit letter in which
he concluded that appellant’s PCRA petition had no merit. On May 21, 2014,
the trial court denied appellant’s PCRA petition; however, the court
inadvertently failed to notify appellant. On August 20, 2014, appellant filed
a pro se motion for nunc pro tunc relief and an appeal to this court. On
1
We believe Attorney Monahan was referring to a lack of issues the
Pennsylvania Supreme Court would be willing to consider.
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September 8, 2014, the PCRA court granted appellant’s petition for leave to
appeal nunc pro tunc.
Appellant raises one issue for our consideration:
1. WHETHER THE TRIAL COURT COMMITTED
LEGAL ERROR BY DENYING APPELLANT’S PCRA
CLAIM THAT APPELLATE COUNSEL WAS
INEFFECTIVE FOR FAILING TO FILE THE
PETITION FOR ALLOWANCE OF APPEAL TO THE
SUPERIOR [sic] COURT WHICH [sic] SUCH
PETITION WAS A MATTER OF RIGHT?
Appellant’s brief at 4.
Our standard of review for the dismissal of a PCRA petition is well
settled. “In reviewing the denial of PCRA relief, we examine whether the
PCRA court’s determination is supported by the record and free of legal
error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal
quotation marks and citation omitted). “The scope of review is limited to the
findings of the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.” Commonwealth
v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa.Super. 2014) (citation omitted).
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In analyzing claims of ineffective assistance of counsel, “[c]ounsel is
presumed effective, and [appellant] bears the burden of proving otherwise.”
Fears, supra at 804 (brackets in original; citation omitted). To prevail on
any claim of ineffective assistance of counsel, a PCRA petitioner must allege
and prove “(1) the underlying legal claim was of arguable merit; (2) counsel
had no reasonable strategic basis for his action or inaction; and (3) the
petitioner was prejudiced--that is, but for counsel’s deficient stewardship,
there is a reasonable likelihood the outcome of the proceedings would have
been different.” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.
2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence
fails to satisfy any one of these prongs.” Commonwealth v. Elliott, 80
A.3d 415, 427 (Pa. 2013) (citation omitted).
Instantly, appellant claims that trial counsel was ineffective for not
petitioning for allowance of appeal to the Pennsylvania Supreme Court.
“[W]hile a defendant does not have an automatic right to an appeal in the
Supreme Court, he has a right to file a PAA, ‘provided that appellate counsel
believes that the claims that a petitioner would raise . . . would not be
completely frivolous.’” Commonwealth v. Ellison, 851 A.2d 977, 979
(Pa.Super. 2004), quoting Commonwealth v. Liebel, 825 A.2d 630, 635
(Pa. 2003) (emphasis in original).
On direct appeal, appellant only challenged whether the trial court
committed an abuse of discretion in denying his post-sentence motion to
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withdraw his guilty plea by questioning the validity of his guilty plea. On
December 19, 2013, this court rejected those claims. See Mamuzich,
supra. Counsel failed to timely inform appellant that this court had affirmed
the judgment of sentence. According to counsel, he could have requested
an appeal nunc pro tunc, but he decided there were no non-frivolous issues
that would have warranted the filing of such an appeal and told appellant as
much. Appellant now argues he was entitled to such an appeal, and due to
the failure of counsel to inform him, the trial court committed an error of law
in denying his PCRA claim. (Appellant’s brief at 11.) We disagree.
The trial court, in denying relief on this ineffectiveness claim, opined:
Under Rule 1114 of the Pennsylvania Rules of
Appellate Procedure, “review of a final order of the
Superior Court or the Commonwealth Court is not a
matter of right, but of sound judicial discretion, and
an appeal will be allowed only when there are special
and important reasons therefor.” Pa.R.A.P. 1114(a).
Further, our Superior Court has found that “if a
defendant knows of his right to file a petition for
allowance of appeal, counsel is not automatically
deemed ineffective for failing to seek review by the
Supreme Court . . . . a defendant must elaborate on
the merits of the issue that counsel abandoned in
failing to seek Supreme Court review.”
Commonwealth v. Gilbert, 595 A.2d 1254, 1256
(Pa.Super. 1991) (citing Commonwealth v.
Morrow, 474 A.2d 322, 324 (Pa. Super. 1984)).
Here, the Petitioner’s letter of February 6,
2014, indicates an awareness of his right to file a
petition [for] allowance of appeal, as he asserts that
Appellate Counsel ineffectively represented him in
failing to file such a petition to the Supreme Court
upon receipt of the Superior Court’s decision. The
Petitioner also has not elaborated on any of the
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merits of the underlying issue, other than baldly
stating: “I’ve provided Mr. Monahan with plenty of
case law to assist in my appeals, in which, [sic] he
never used.” Letter, 02/06/14. The issues raised by
the Petitioner do not rise to the level required under
Rule 1114, as there has been no demonstration that
there are special and important reasons for the
appeal. The Petitioner has not shown, therefore,
that his underlying PCRA claims have arguable merit,
failing to meet the first prong of the standard to
prove ineffective assistance of counsel. See
Michael Pierce, 786 A.2d at 213. As such, we find
that the Petitioner has not sufficiently alleged
ineffective assistance of counsel with regard to
Appellate Counsel.
Trial court opinion, 5/21/14 at 6-7.
Pennsylvania Rule of Appellate Procedure 1114, Considerations
Governing Allowance of Appeal, provides as follows:
(a) General Rule. Except as prescribed in Rule
1101 (appeals of right from the
Commonwealth Court), review of a final order
of the Superior Court or the Commonwealth
Court is not a matter of right, but of sound
judicial discretion, and an appeal will be
allowed only when there are special and
important reasons therefor.
(b) Standards. A petition for allowance of appeal
may be granted for any of the following
reasons:
(1) the holding of the intermediate
appellate court conflicts with
another intermediate appellate
court opinion;
(2) the holding of the intermediate
appellate court conflicts with a
holding of the Pennsylvania
Supreme Court or the United
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States Supreme Court on the same
legal question;
(3) the question presented is one of
first impression;
(4) the question presented is one of
such substantial public importance
as to require prompt and definitive
resolution by the Pennsylvania
Supreme Court;
(5) the issue involves the
constitutionality of a statute of the
Commonwealth;
(6) the intermediate appellate court
has so far departed from accepted
judicial practices or so abused its
discretion as to call for the exercise
of the Pennsylvania Supreme
Court's supervisory authority; or
(7) the intermediate appellate court
has erroneously entered an order
quashing or dismissing an appeal.
Given that none of the above reasons applies to this case and the only
issue preserved concerns the validity of the guilty plea and whether the trial
court erred when it denied appellant’s post-sentence motion to withdraw it,
we conclude counsel’s reason for failing to file a nunc pro tunc petition for
allowance of appeal was strategically justified because only frivolous grounds
remain. See, e.g., Rigg, 84 A.3d at 1088 (counsel was not per se
ineffective in not filing a petition for allowance of appeal where the lone
issue appellant wished to be reviewed was a discretionary sentencing claim
that our supreme court is statutorily precluded from reviewing).
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Instantly, appellant’s issue has been addressed by the trial court and
affirmed on direct appeal by this court. There are no other non-frivolous
issues that could be raised before the Pennsylvania Supreme Court. See
Pa.R.A.P. 302 (issues not raised in the lower court are waived). Accordingly,
appellant’s ineffectiveness claim warrants no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
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