Com. v. Dekeyser, O. ( 2014 )

J-S66042-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
OMAR DANIEL DEKEYSER, :
:
Appellant : No. 597 MDA 2014
Appeal from the PCRA Order entered on March 6, 2014
in the Court of Common Pleas of Lancaster County,
Criminal Division, No. CP-36-CR-0005474-2008
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 26, 2014
Omar Daniel Dekeyser (“Dekeyser”) appeals from the Order denying
his Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. § 9541-9546. We affirm.
In February 2008, Dekeyser was stopped for speeding while driving a
vehicle that belonged to his girlfriend, Dawn Jones (“Jones”). The officer
ascertained that Dekeyser was driving with a suspended license, and that he
had four prior drug arrests. Following a canine search of the vehicle’s
exterior, the police obtained a search warrant, the execution of which
produced 124 grams of crack cocaine.
Dekeyser was charged with possession with intent to deliver cocaine,
possession of cocaine, possession of drug paraphernalia, driving while
operating privileges are suspended, exceeding the speed limit and improper
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screening.1 Dekeyser filed a Motion to Suppress, which the trial court denied
on February 18, 2010. The case then proceeded to a bench trial on
stipulated facts, after which the trial court found Dekeyser guilty of all
charges except improper screening. That same day, the trial court
sentenced Dekeyser to an aggregate prison term of 7 to 14 years.
Dekeyser filed a timely Notice of Appeal. This Court remanded on the
issue related to Dekeyser’s waiver of a jury trial in the absence of an oral or
written colloquy. Commonwealth v. Dekeyser, 23 A.3d 1092 (Pa. Super.
2011) (unpublished memorandum). The trial court subsequently held an
evidentiary hearing to address the issue. The trial court found that
Dekeyser made no effort to timely preserve the issue for appeal. This Court
agreed and concluded that Dekeyser had waived the issue; nevertheless,
this Court alternatively concluded that Dekeyser knowingly and voluntarily
waived his right to a jury trial. See Commonwealth v. Dekeyser, 29 A.3d
836 (Pa. Super. 2011) (unpublished memorandum). Dekeyser filed a
Petition for Allowance of Appeal, which the Pennsylvania Supreme Court
denied in October 2011.
Dekeyser, pro se, timely filed the instant PCRA Petition in January
2012. The PCRA court appointed Dekeyser counsel, who filed an amended
Petition. The PCRA court denied Dekeyser’s Petition. Dekeyser filed a timely
1
35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32); 75 Pa.C.S.A. §§ 1543,
3362, 4524(e).
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Notice of Appeal and a court-ordered Pennsylvania Rule of Appellate
Procedure 1925(b) Concise Statement of Matters Complained of on Appeal.
On appeal, Dekeyser raises the following questions for our review:
I. Was trial counsel ineffective for advising [] Dekeyser to
proceed with a stipulated bench trial, rather than to have a jury
trial in which he contested constructive possession of the cocaine
hidden behind the armrest in the back seat of the vehicle he was
driving when stopped by the police?
II. Was trial counsel ineffective for accepting payment from []
Jones to represent [] Dekeyser where [] Jones, as the owner of
the vehicle, had an interest which conflicted with [] Dekeyser’s
interest, [] Dekeyser did not waive this conflict, and trial counsel
did not advise [] Dekeyser to contest constructive possession of
the cocaine found in Jones’s vehicle because this would have
required [trial counsel] to claim that Jones was the owner of the
cocaine?
Brief for Appellant at 5.
In his first claim, Dekeyser argues that trial counsel was ineffective for
advising him to proceed with a stipulated bench trial. Id. Specifically, he
claims that in foregoing a jury trial, he relinquished a defense that he was
not in constructive possession of the cocaine. Id. at 15-17, 19. Dekeyser
argues that trial counsel incorrectly stated, during the evidentiary hearing,
that Dekeyser did not wish to pursue a defense based on lack of constructive
possession because he would have to assign blame to Jones. Id. at 17-18.
To succeed on an ineffectiveness claim, Dekeyser must demonstrate
by a preponderance of the evidence that
(1) [the] underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and (3) but
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for counsel’s ineffectiveness, there is a reasonable probability
that the outcome of the proceedings would have been different.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy
any prong of the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel is
presumed to be effective and the burden is on the appellant to prove
otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).
As to the underlying claim, this Court determined, in alternative
analysis, that Dekeyser knowingly and voluntarily waived his right to a jury
trial. See Commonwealth v. Dekeyser, 29 A.3d 836 (unpublished
memorandum at 9-12); see also N.T., 2/22/11, at 6-7, 9-12, 15, 28-30.
Specifically, this Court concluded the following:
[T]rial counsel testified she discussed at length with [Dekeyser],
who she characterized as “sophisticated with the criminal justice
system,” the pros and cons of a bench trial versus a jury trial.
She further testified that she believed [that Dekeyser] clearly
understood his rights and [Dekeyser] affirmatively indicated he
wished to proceed with a stipulated bench trial. In addition,
upon questioning by the trial court, [Dekeyser] admitted that he
had at least four prior felony drug convictions, one of which
resulted “recently” from a conviction following a jury trial.
Therefore, although the procedural devices of an oral or written
colloquy were not used in the case sub judice, we conclude that
the totality of the circumstances reveal that [Dekeyser]
understood the essential elements of a jury trial and voluntarily
waived his right thereto.
Commonwealth v. Dekeyser, 29 A.3d 836 (unpublished memorandum at
12) (citation omitted). Upon our review of the record, we agree with this
Court’s analysis and conclude that the underlying claim has no merit. Thus,
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Dekeyser cannot succeed on a claim of ineffective assistance of counsel for
advising him to proceed with a bench trial.
In his second claim, Dekeyser argues that trial counsel was ineffective
for accepting payment from Jones for his representation, which created a
conflict of interest. Brief for Appellant at 20. Dekeyser claims that after
accepting payment from Jones, trial counsel represented conflicting interests
by foregoing a trial defense that Dekeyser was not in constructive
possession of the cocaine because it would implicate Jones. Id. at 22-24.
An appellant cannot prevail on a preserved conflict of
interest claim absent a showing of actual prejudice.
Nevertheless, we presume prejudice when the appellant shows
that trial counsel was burdened by actual—rather than mere
potential—conflict of interest. To show an actual conflict of
interest, the appellant must demonstrate that: (1) counsel
actively represented conflicting interests; and (2) those
conflicting interests adversely affected his lawyer’s performance.
Commonwealth v. Collins, 957 A.2d 237, 251 (Pa. 2008).
Here, trial counsel testified that Jones was never her client, that she
never challenged the forfeiture of Jones’s vehicle, and that she never filed
anything on Jones’s behalf. See N.T., 9/11/13, at 14, 18-19. Moreover,
because this claim specifically relates to a constructive possession defense at
a jury trial, and we have already determined that Dekeyser waived his right
to a jury trial, Dekeyser cannot now argue that failure to raise a trial defense
was a result of a conflict of interest. Thus, Dekeyser cannot succeed on his
claim of ineffective assistance of counsel due to a conflict of interest.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2014
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