Com. v. Johnson, S. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
STANLEY K. JOHNSON
Appellant No. 3228 EDA 2013
Appeal from the PCRA Order October 30, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011626-2009
BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 27, 2014
Appellant, Stanley K. Johnson, appeals from the October 30, 2013
order dismissing, without a hearing, his amended 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 summarized the procedural background of this case as
follows.
On January 21, 2011, before [the trial] court,
[Appellant] plead[ed] guilty on CP-51-CR-0011626-
2009 for the following charges: Rape by Forcible
Entry, [] Involuntary Deviate Sexual Intercourse by
Forcible Compulsion, [] Unlawful Contact with a
Minor (Relating to Sexual Offenses), [] Incest, []
Endangering Welfare of Children (Parent/Guardian),
[] and Simple Assault Against a Child Under 12 Years
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of Age by an Adult over 21 Years of Age, [].[1] At the
time [Appellant] plead[ed] guilty, the court gave
[Appellant] a below the guideline sentence of 120
months[’] probation for the crime of Incest.
Sentencing for the remaining crimes was deferred
pending a presentence investigation report and a
Megan’s Law assessment.
On April 29, 2011, [the trial] court, equipped
with an assessment from the Pennsylvania Sexual
Offenders Assessment Board, found [Appellant] to be
a sexually violent predator. On September 16, 2011,
[the trial] court sentenced [Appellant] to a guideline
sentence of 7 to 16 years[’] incarceration followed by
180 months[’] probation for the crime of Rape; an
above the guideline sentence of 7 to 16 years[’]
incarceration followed by 180 months[’] probation
for the crime of Involuntary Deviate Sexual
Intercourse; a below the guideline sentence of 180
months[’] probation for the crime of Unlawful
Contact with a Minor; a below the guideline sentence
of 84 months[’] probation for the crime of
Endangering the Welfare of Children; and a guideline
sentence of 60 months[’] probation for the crime [of]
Simple Assault against a Child. The court ordered
the two incarceration sentences to run concurrently
to each other and all probation sentences to run
consecutive to these incarceration sentences. All
probation sentences were ordered to run
concurrently to each other.
On November 17, 2011, [Appellant] filed a pro
se [PCRA] Petition. On February 2, 2012, Elayne
Bryn, Esq. was appointed to represent [Appellant].
On October 25, 2012, Ms. Bryn filed an Amended
PCRA Petition on [Appellant’s] behalf. On March 15,
2013, the Commonwealth filed a Motion to Dismiss
[Appellant’s] PCRA Petition. On September 27,
2013, the [PCRA] court filed a Rule 907 Notice as the
[PCRA] court had determined that the issues raised
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1
18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 6318(a)(1), 4302, 4304(a), and
2701(b)(2), respectively.
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in the Amended PCRA Petition were without merit.
On October 30, 2013, [the PCRA] court dismissed
[Appellant’s] PCRA Petition. [2]
Trial Court Opinion, 1/15/14, at 1-3 (footnote omitted).
On appeal, Appellant raises the following issue for our review.
I. [Was] Trial counsel [] ineffective for failing to
raise [A]ppellant’s Rule 600 motion before the
trial court[?] [Was] Appellant [] entitled to a
dismissal of the charges against him because
he was brought to trial after 365 days had
expired[?]
Appellant’s Brief at 3.
We note the following principles, which guide our consideration of an
appeal from the denial of PCRA relief.
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.
[Our] 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
PCRA court level. The PCRA court’s credibility
determinations, when supported by the record, are
binding on this Court. However, this Court applies a
de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)
(en banc) (internal quotation marks and citations omitted). Further, in order
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2
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925. After filing his initial timely Rule 1925(b)
statement, the trial court granted Appellant extensions to file an amended
concise statement, if necessary, upon receipt and review of the entire record
by counsel. No amended statement was filed.
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to be eligible for PCRA relief, a petitioner must plead and prove by a
preponderance of the evidence that his conviction or sentence arose from
one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues
must be neither previously litigated nor waived. Id. § 9543(a)(3).
In this case, the PCRA court dismissed Appellant’s PCRA petition
without conducting a hearing.
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting
Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007)
(internal citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see
also Pa.R.Crim.P. 907. “We stress that an evidentiary hearing is not meant
to function as a fishing expedition for any possible evidence that may
support some speculative claim of ineffectiveness.” Commonwealth v.
Roney, 79 A.3d 595, 604-605 (Pa. 2013) (internal quotation marks and
citation omitted). We review a PCRA court’s decision to dismiss without a
hearing for abuse of discretion. Id. at 604.
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Appellant alleges ineffectiveness of trial counsel. When reviewing a
claim of ineffective assistance of counsel, we apply the following test, first
articulated by our Supreme Court in Commonwealth v. Pierce, 527 A.2d
973 (Pa. 1987).
When considering such a claim, courts
presume that counsel was effective, and place upon
the appellant the burden of proving otherwise.
Counsel cannot be found ineffective for failure to
assert a baseless claim.
To succeed on a claim that counsel was
ineffective, Appellant must demonstrate that: (1) the
claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or
inaction; and (3) counsel’s ineffectiveness prejudiced
him.
…
[T]o demonstrate prejudice, appellant must
show there is a reasonable probability that, but for
counsel’s error, the outcome of the proceeding would
have been different.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal
quotation marks and citations omitted). “Failure to establish any prong of
the test will defeat an ineffectiveness claim.” Commonwealth v.
Birdsong, 24 A.3d 319, 330 (Pa. 2011).
Appellant’s specific claim is that his trial counsel was ineffective for
failing to seek dismissal of the charges pursuant to Pennsylvania Rule of
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Criminal Procedure 600 prior to the entry of his guilty plea.3 Appellant’s
Brief at 11.
Counsel failed to obtain a determination of the Rule
600 issue and [A]ppellant suffered prejudice because
the remedy for the speedy trial issue was the
dismissal of the charges against him. Appellant was
entitled to a dismissal of the charges against him
because he was brought to trial after 365 days had
expired.
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3
Appellant indicated in his PCRA petition, and in his statement-of-the-case
portion of his appellate brief, that he filed a pro se motion for dismissal
based on Rule 600 on December 29, 2010, which was never ruled on by the
trial court. Appellant’s Brief at 4; Amended PCRA Petition, 10/25/12, at 3, ¶
10. While the filing of the pro se Rule 600 motion is indicated in the docket,
there is no indication the pro se motion was forwarded to counsel pursuant
to Pa.R.Crim.P. 576(A)(4) (providing for docketing of pro se filings by
represented defendants and directing the clerk of courts to forward a time-
stamped copy of the filing to the Commonwealth and defense counsel). We
also note that, apart from the guilty plea hearing transcript, no documents
from the trial court record that predate the filing of Appellant’s November
18, 2011 pro se PCRA petition, including Appellant’s pro se motion, have
been included in the record certified to this Court.
It is black letter law in this jurisdiction that an
appellate court cannot consider anything which is not
part of the record in the case. It is also well-settled
in this jurisdiction that it is Appellant’s responsibility
to supply this Court with a complete record for
purposes of review. A failure by [A]ppellant to
insure that the original record certified for appeal
contains sufficient information to conduct a proper
review constitutes waiver of the issue sought to be
examined.
Commonwealth v. Martz, 926 A.2d 514, 524-525 (Pa. Super. 2007)
(internal quotation marks and citations omitted), appeal denied, 940 A.2d
363 (Pa. 2008).
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Appellant’s Brief at 22.
As noted above, Appellant entered a guilty plea to the charges in this
matter. At his guilty plea hearing, the trial court advised Appellant that, by
pleading guilty, he gave up all of his rights and challenges except issues
pertaining to the jurisdiction of the court, the voluntariness of his plea, and
the legality of his sentence. N.T., 1/21/11, at 9-10. Appellant
acknowledged his understanding, and upon further colloquy, the trial court
stated it was “satisfied … that [Appellant] has made a knowing, intelligent
and voluntary plea of guilty.”4 Id. at 12.
Critical to this appeal, Appellant did not allege in his amended PCRA
petition or in his Rule 1925(b) statement that his plea was not knowing
intelligent and voluntary, or that he was in any way induced to enter his
guilty plea and waive his speedy trial rights as a result of counsel’s alleged
deficient representation. This is fatal to his claim.
A plea of guilty effectively waives all
nonjurisdictional defects and defenses. As such, this
Court has unequivocably [sic] held that an alleged
irregularity in proceedings prior to a plea of guilty,
including an alleged violation of Rule 1100, [now
Rule 600,] would be reviewable to the extent that it
affected the voluntariness of the guilty plea itself.
Accordingly, although a violation of Rule 1100 would
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4
The PCRA court also notes that Appellant signed a written guilty plea
colloquy wherein Appellant acknowledged that by pleading guilty he was
“[giving] up speedy trial rights and [Appellant’s] right under Rule 600….”
Trial Court Opinion, 1/15/14, at 4, quoting Written Guilty Plea Colloquy, at 2.
Again, we note the written guilty plea colloquy is not contained in the record
certified to this Court.
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normally constitute reversible error, said violation
may not be challenged where it does not affect the
voluntariness of the plea.
Where, however, the appellant can
demonstrate that he did not knowingly waive his
right to challenge said violation, and if he can
demonstrate that the violation of Rule 1100 induced
his guilty plea, he may be entitled to pursue his
claim. As such, the appellant may allege that the
waiver resulted from the ineffective assistance of
trial counsel. In asserting a claim of ineffective
assistance of trial counsel, an appellant must
demonstrate that his underlying claim is of arguable
merit. Where, however, the rights to a speedy trial
were fully explained to an appellant at a hearing
during which he proceeded to sign an agreement to
waive such rights, counsel will not be deemed
ineffective for failing to challenge an alleged Rule
1100 violation.
Commonwealth v. Gibson, 561 A.2d 1240, 1242 (Pa. Super. 1989)
(citations omitted), appeal denied, 581 A.2d 568 (Pa. 1990).
Here, Appellant does not challenge or seek to withdraw his plea. In
his PCRA petition, Appellant merely sought an adjudication of his Rule 600
claim, which he alleges trial counsel failed to pursue.
Trial counsel was ineffective for failing to raise
petitioner’s Rule 600 motion before the trial court.
Petitioner was entitled to a dismissal of the charges
against him because he was brought to trial after
365 days had expired. Petitioner has met his
burden under Strickland/Pierce and he is entitled
to the dismissal of all charges.
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Amended PCRA Petition, 10/25/12, at 4, ¶ 11.5
Absent a challenge to the voluntariness of his plea and the showing of
some nexus between trial counsel’s alleged ineffectiveness and the entry of
an allegedly unknowing or involuntary plea and its attendant waivers, we
conclude Appellant has failed to demonstrate any prejudice in counsel’s
failure to pursue a waived claim. See Gibson, supra.
For these reasons, we discern no error or abuse of discretion by the
PCRA court in dismissing Appellant’s PCRA petition without a hearing.
Accordingly, we affirm the October 30, 2013 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2014
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5
Appellant baldly asserts in his brief that “Appellant was not adequately
informed by counsel when he pled guilty.” Appellant’s Brief at 22. However,
Appellant did not allege this in his amended PCRA petition and may not raise
the issue for the first time on appeal. See Pa.R.A.P. 302(a) (declaring
issues not raised in the trial court are waived and cannot be raised for the
first time on appeal). Furthermore, Appellant provides no exposition or
development of this claim in his appellate brief.
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