Com. v. Pettersen, E. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
EDWARD WILLIAM PETTERSEN, JR., : No. 710 EDA 2018
:
Appellant :
Appeal from the PCRA Order, February 7, 2018,
in the Court of Common Pleas of Pike County
Criminal Division at No. CP-52-CR-0000425-2009
BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 11, 2019
Edward William Pettersen, Jr., appeals from the February 7, 2018
order entered by the Court of Common Pleas of Pike County denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court provided the following synopsis of the pertinent
procedural history:
Appellant was convicted of three (3) counts of
Aggravated Assault (F-1), Burglary (F-1), Criminal
Trespass (F-2), three (3) counts of Simple Assault
(M-2), and Reckless[ly] Endangering Another
Person[1] following a jury trial held in May of 2011.
Appellant was subsequently sentenced on July 7,
2011. Appellant was sentenced to an aggregate
period of incarceration of not less than 21½ years
1 18 Pa.C.S.A. §§ 2702(a), 3502(a), 3503(a), 2701(a), and 2705,
respectively.
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nor more than 70 years in a State Correctional
Facility.
After [a]ppellant’s appeal of the July 7, 2011
Sentencing Order to the Pennsylvania Superior
Court, said Court issued an Order dated July 16,
2012 affirming [the trial court’s judgment of
sentence.[2] Pertinent to the procedural history of
this matter, the Superior Court issued another Order
dated June 27, 2016 remanding this matter to the
[PCRA] court on [a]ppellant’s claims for
post-conviction relief and directed that the [PCRA]
court appoint counsel for [a]ppellant and to hold a
new hearing on his post-conviction claims.[3]
[The PCRA court] appointed James P. Baron, Esquire
to represent [a]ppellant with regard to his
post-conviction claims. Attorney Baron filed an
Amended Petition for Post-Conviction Relief on
June 7, 2017. [The PCRA court] held a PCRA
evidentiary hearing on October 6, 2017. [The PCRA
court] denied [a]ppellant’s PCRA Petition by Order
dated February 7, 2018, and this appeal followed.
On March 8, 2018, [the PCRA court] ordered that
[appellant] file a Concise Statement of Matters
Complained of on Appeal [pursuant to
Pa.R.A.P. 1925(b)] within twenty-one (21) days from
the date of the Order. Appellant filed a Concise
Statement of Matters Complained of on Appeal on
March 29, 2018.
PCRA court opinion, 5/2/18 at 1-2. The PCRA court filed an opinion pursuant
to Pa.R.A.P. 1925(a) on May 2, 2018.
Appellant raises the following issues for our review:
2Commonwealth v. Pettersen, 49 A.3d 903 (Pa.Super. 2012), appeal
denied, 63 A.3d 776 (Pa. 2013).
3 Commonwealth v. Pettersen, 153 A.3d 1119 (Pa.Super. 2016)
(unpublished memorandum).
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1. Whether the PCRA court erred in failing to find
trial counsel ineffective for failing to file
pre-trial motions regarding the search of
[appellant’s] vehicle and cellular phone?
2. Whether the PCRA court erred in failing to find
trial counsel ineffective for failing to convey
and discuss plea offers to [appellant]?
3. Whether the PCRA court erred in failing to find
trial counsel ineffective for failing to discuss or
seek the consent of [appellant] before filing
trial continuances[?]
Appellant’s brief at 14 (full capitalization omitted).
We begin by noting the following standard of review,
guiding our consideration of this appeal. “On appeal
from the denial of PCRA relief, our standard of
review calls for us to determine whether the ruling of
the PCRA court is supported by the record and free
of legal error.” Commonwealth v. Calhoun, 52
A.3d 281, 284 (Pa.Super. 2012) (citation omitted).
“The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the
certified record.” Commonwealth v. Garcia, 23
A.3d 1059, 1061 (Pa.Super. 2011) (internal
quotation marks and citation omitted), appeal
denied, [] 38 A.3d 823 ([Pa.] 2012). “The PCRA
court's factual determinations are entitled to
deference, but its legal determinations are subject to
our plenary review.” Commonwealth v. Johnson,
[] 966 A.2d 523, 532 ([Pa.] 2009) (internal
quotation marks and citations omitted).
Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012), appeal
denied, 72 A.3d 602 (Pa. 2013).
In all three issues raised on appeal, appellant alleges separate
allegations of ineffective assistance on the part of his trial counsel,
Thomas Mincer, Esq.
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The governing legal standard of review of ineffective
assistance of counsel claims is well-settled:
[C]ounsel is presumed effective, and to
rebut that presumption, the PCRA
petitioner must demonstrate that
counsel's performance was deficient and
that such deficiency prejudiced him.
Strickland v. Washington, 466 U.S.
668, [] (1984). This Court has described
the Strickland standard as tripartite by
dividing the performance element into
two distinct components.
Commonwealth v. Pierce, [] 527 A.2d
973, 975 ([Pa.] 1987). Accordingly, to
prove counsel ineffective, the petitioner
must demonstrate that (1) the
underlying legal issue has arguable
merit; (2) counsel's actions lacked an
objective reasonable basis; and (3) the
petitioner was prejudiced by counsel's
act or omission. Id. A claim of
ineffectiveness will be denied if the
petitioner's evidence fails to satisfy any
one of these prongs.
Commonwealth v. Busanet, [] 54 A.3d 34 [35],
45 ([Pa.] 2012) (citations formatted). Furthermore,
“[i]n accord with these well-established criteria for
review, [an appellant] must set forth and individually
discuss substantively each prong of the Pierce test.”
Commonwealth v. Fitzgerald, 979 A.2d 908, 910
(Pa.Super. 2009).
Commonwealth v. Roane, 142 A.3d 79, 88 (Pa.Super. 2016), quoting
Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015),
order vacated on other grounds, 166 A.3d 1213 (Pa. 2017).
In his first issue on appeal, appellant avers that Attorney Mincer was
ineffective for failing to file a pretrial omnibus suppression motion to
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suppress a New Jersey speeding ticket that appellant contends was
recovered from his vehicle, which police allegedly searched without a search
warrant and the contents of appellant’s cell phone, which appellant argues
were obtained without a search warrant. (Appellant’s brief at 23.) Appellant
further alleges that the Commonwealth then used the evidence improperly
seized to establish a timeline at trial of appellant’s whereabouts at the
approximate time of his crimes. (Id.)
Appellant provides very little discussion as to the arguable merit of his
claim; rather, appellant baldly asserts that the “evidence obtained from
[appellant’s] vehicle and cellular phone was obtained without first obtaining
a search warrant, in violation of [appellant’s] Constitutional guarantees as
set forth in the Pennsylvania Constitution.” (Id. at 24-25.) Appellant
provides no facts as to the nature of the search of appellant’s vehicle and no
argument as to whether any exceptions to the warrant requirement did or
did not apply. Moreover, the PCRA court noted that Attorney Mincer
“specifically testified that he discussed the possibility of pre-trial motions
with [a]ppellant and that [a]ppellant did not wish to file any.” (PCRA court
opinion, 5/2/18 at 4.) Throughout its Rule 1925(a) opinion, the PCRA court
notes multiple times that it found Attorney Mincer’s testimony to be credible.
(See id. at 6-7.)
Accordingly, we find that the PCRA court’s findings are supported by
the record. Therefore, appellant’s first issue lacks arguable merit.
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In his second issue on appeal, appellant contends that Attorney Mincer
rendered ineffective assistance because he failed to convey and discuss plea
offers with appellant. (Appellant’s brief at 28-29.) In the context of plea
offers, in order to be entitled to relief for ineffective assistance of counsel, a
petitioner must establish that “(1) an offer for a plea was made; (2) trial
counsel failed to inform him of such offer; (3) trial counsel had no
reasonable basis for failing to inform him of the plea offer; and (4) he was
prejudiced thereby.” Commonwealth v. Chazin, 873 A.2d 732, 735
(Pa.Super. 2005), appeal denied, 887 A.2d 1239 (Pa. 2005), quoting
Commonwealth v. Copeland, 554 A.2d 54, 61 (Pa.Super. 1988), appeal
denied, 565 A.2d 1165 (Pa. 1989).
Here, the PCRA court noted that Attorney Mincer testified as follows:
I did discuss with [appellant’s] parents and
[appellant] — [appellant] specifically whether he
would accept any type of plea. I discussed potential
pleas that I thought we could try to get through.
However, the [Commonwealth] would not discuss a
specific plea with me unless [appellant] would agree
that he would take a plea. [Appellant] told me all
the way through the process that he would not take
a plea.
PCRA court opinion, 5/2/18 at 5, quoting notes of testimony, 10/6/17 at
13-14. The PCRA court further noted that Attorney Mincer had encouraged
appellant to authorize plea negotiations with the Commonwealth and that
appellant elected not to authorize such negotiations. (PCRA court opinion,
5/2/18 at 6.)
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The PCRA court also specifically found Attorney Mincer’s testimony to
be credible. (Id.) The record before us contains ample basis for such a
determination. Accordingly, we find that the PCRA court’s findings are
supported by the record and are free of legal error. Therefore, appellant’s
second issue is without merit.
In his third and final issue on appeal, appellant contends that the PCRA
court erred when it did not find Attorney Mincer to be ineffective for failing to
discuss or seek the consent of appellant before filing trial continuances.
(Appellant’s brief at 29-32.) Appellant further argues that these
continuances violated his right to a speedy trial. (Id. at 30.)
As noted above, in order to obtain relief under the PCRA for ineffective
assistance of counsel, a petitioner must plead and prove that counsel lacked
a reasonable basis for his or her action or inaction.
“Relating to the reasonable basis prong, [g]enerally,
where matters of strategy and tactics are concerned,
counsel's assistance is deemed constitutionally
effective if he chose a particular course that had
some reasonable basis designed to effectuate his
client's interests.” Commonwealth v. Koehler, [],
36 A.3d 121, 132 ([Pa.] 2012) (quotations and
citation omitted). “Courts should not deem counsel’s
strategy or tactic unreasonable unless it can be
concluded that an alternative not chosen offered a
potential for success substantially greater than the
course actually pursued.” Id. (quotations and
citation omitted).
Commonwealth v. Durrett King, A.3d , 2018 WL 4102591 at *2
(Pa.Super. 2018).
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Here, the PCRA court determined that Attorney Mincer had a
reasonable basis for filing continuances in this case, summarizing
Attorney Mincer’s testimony as follows:
[Attorney Mincer] testified that some of the first
continuances he requested would have been very
early in the case, and neither the Commonwealth nor
[appellant] would have been ready to proceed to
trial. [(Notes of testimony, 10/6/17 at 26.)]
Furthermore, [Attorney Mincer] was waiting to
proceed to trial upon receipt of DNA results as he
was hoping for the results to show third-party DNA
. . . which would exonerate [a]ppellant. [(Id. at
17.)] Finally, [Attorney Mincer] testified that he
requested at least one trial continuance due to his
own illness, which was confirmed by the record
showing a trial continuance was submitted from the
March 2011 trial term to the May 2011 trial term.
[(Id.)]
PCRA court opinion, 5/2/18 at 7.
Upon our review of the record, we find that there is ample evidence to
provide a basis for the PCRA court’s determination. Accordingly, the PCRA
court’s determinations are supported by the record and are free from legal
error. Therefore, because appellant failed to demonstrate that
Attorney Mincer’s decisions to request continuances did not have a
reasonable basis, his third issue must fail.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/19
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