Com. v. Gehr, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID GREGORY GEHR :
:
Appellant : No. 148 MDA 2019
Appeal from the PCRA Order Entered December 20, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001010-2015
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 26, 2020
Appellant, David Gregory Gehr, appeals pro se from the order entered
in the Court of Common Pleas of Lycoming County dismissing his first petition
filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546,
after issuing Pa.R.Crim.P. 907 notice that the court had granted court
appointed counsel’s petition to withdraw and discerned no arguable merit to
Appellant’s petition. Herein, Appellant claims that ineffective assistance of all
prior counsel and trial court error require the withdrawal of what he contends
was an invalid guilty plea. We affirm.
In our memorandum decision Commonwealth v. Gehr, No. 1012 MDA
2016, unpublished memorandum at 1-2 (Pa.Super. filed April 13, 2017), we
set forth the underlying facts and procedural history of the present matter:
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* Former Justice specially assigned to the Superior Court.
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On January 1, 2015, Gehr backed his vehicle into David Lunger’s
(“Lunger”) vehicle. Gehr fled the scene without exchanging any
information with Lunger. Lunger called the police and began to
follow Gehr. The police eventually stopped Gehr. Gehr was found
to be intoxicated, and possessed a small amount of marijuana, a
glass pipe, and a .22 caliber rifle. Gehr told the police that he was
drinking vodka at a friend’s home, and that he smokes marijuana
every day to relax. The police arrested Gehr and transported him
to the hospital, where Gehr refused to submit to a blood test.
Subsequently, the police determined that Gehr was a convicted
felon and was not permitted to possess a firearm.
On January 5, 2016, Gehr pled guilty to the above-mentioned
crimes[, namely, Persons not to Possess a Firearm, 18 Pa.C.S.A.
§ 6105(a)(1), Driving Under the Influence (“DUI”)-Refusal, 75
Pa.C.S.A. § 3802(a)(1), and Possession of a Small Amount of
Marijuana, 780-113(a)(31).]. On April 20, 2016, the trial court
sentenced Gehr to five to ten years in prison for the person not to
possess a firearm conviction, and a consecutive prison term of one
and one-half to five years for the DUI-refusal conviction. The trial
court also imposed fines upon Gehr. The trial court did not impose
any further prison sentences on the remaining convictions.
Gehr filed Post-Sentence Motions, seeking to withdraw his guilty
plea and reconsideration of his sentence. The trial court denied
Gehr’s request to withdraw his plea, but granted Gehr’s
reconsideration of sentence request. On June 7, 2016, the trial
court imposed the same sentences for the person not to possess
a firearm and DUI-refusal convictions, but imposed them
concurrently. The trial court did not change the remaining part of
the prior sentencing Order. Gehr filed a timely Notice of Appeal.
Id.
This Court rejected Gehr’s six discrete challenges to the validity of his
guilty plea as frivolous, finding that the record established he entered his plea
knowingly, voluntarily, and intelligently. Gehr, we concluded, specifically
stated he understood the charges against him and admitted to the facts that
led to the charges. He acknowledged he would forego certain delineated rights
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by pleading guilty, confirmed he was pleading of his own free will, and
expressed satisfaction with counsel’s representation. He indicated he
understood the permissible ranges of sentence and that no specific sentence,
whether county or state, was promised to him.
This Court, however, sua sponte addressed the legality of Gehr’s
sentence for DUI-refusal conviction under the then-recent decision of
Birchfield v. North Dakota, 136 S.Ct. 2160, 2185 (2016) (holding “a breath
test, but not a blood test, may be administered as a search incident to a lawful
arrest for drunk driving.”). Finding no statutory authority to impose enhanced
penalties for refusing to provide a blood sample when requested by police, we
vacated judgment of sentence and remanded for resentencing. In so doing,
we clarified that because Appellant had pled guilty to DUI under section
3802(a)(1), second offense, the trial court could impose the same sentence
on remand, although it could not consider the mandatory minimum sentence
for DUI-refusal in resentencing Appellant. Gehr, supra at 9, 10 n.6. This
Court, therefore, affirmed Appellant’s convictions but vacated judgment of
sentence and remanded for resentencing consistent with our decision.
At Appellant’s resentencing hearing of August 10, 2017, the trial court
acknowledged our decision but indicated, nonetheless, the decision would not
have a functional effect on the term of Appellant’s sentence, as the court had
already run the DUI sentence concurrently to the Persons not to Possess
sentence of 5 to 10 years’ incarceration. N.T., 8/10/17, at 1-3. Substitute
counsel from the Public Defender’s Office advised the court, however, that
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Appellant wished to continue the proceeding so he could talk to appointed
counsel from the Defender’s Office. N.T. at 3-4.
When asked by the court to explain his position, Appellant stated he was
dissatisfied with appointed counsel’s representation during the guilty plea
phase, submission of an Anders brief and motion for withdrawal on direct
appeal, and alleged failure to reply to two letters written by Appellant in the
months leading to the present sentencing hearing. N.T. at 3-15. The court
initially responded by discussing Appellant’s plea colloquy, wherein Appellant
had specifically denied harboring any dissatisfaction with plea counsel, the
terms of his plea agreement, or the possible sentence that would follow. N.T.
at 11-16.
The court also opined that Appellant’s current objections failed to relate
to the present hearing, the discrete purpose of which was to resentence
Appellant consistent with the Superior Court’s invalidation of the DUI-refusal
mandatory sentence. Specifically, the court maintained that because
Appellant had knowingly entered an open guilty plea to DUI at 3802(a)(1),1
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1 Appellant argued that he had pled guilty to DUI-refusal and not DUI-general
impairment, such that a new guilty plea hearing was required. As noted by
this Court in Appellant’s direct appeal, however, the criminal information
against Appellant charged him under 75 Pa.C.S. § 3802(a)(1). It was well-
settled at the relevant time that DUI-refusal neither constituted a separate
crime from DUI-general impairment nor added an element to the offense at
Section 3802. Rather, it simply supplied a sentencing enhancement, provided
at Section 3804(c), upon a conviction under Section 3802 where refusal to
submit to a blood or breath test occurred. See Commonwealth v. Kimmel,
125 A.3d 1272 (Pa.Super. 2015) (citing Commonwealth v. Mobley, 14 A.3d
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the court had run the DUI sentence concurrent to the Persons not to Possess
sentence,2 and the Superior Court had affirmed this conviction and instructed
that the same sentence could attach as long it did not reflect consideration of
the DUI-refusal mandatory minimum statute, the Superior Court’s order and
remand did not affect the original sentencing scheme.
The court, therefore, denied Appellant’s requests for a continuance
and/or a new guilty plea hearing. Consistent with its earlier statement of
intent, the court imposed the lowest possible DUI sentence of five days to six
months’ incarceration and ran it concurrently to the Persons not to Possess
sentence, for an aggregate sentence of five to ten years’ incarceration. N.T.
at 5, 17-20. The court advised Appellant of his options with respect to
asserting the ineffective assistance of prior counsel, and it concluded the
hearing. N.T. at 18-23.
On September 19, 2017, Appellant filed a pro se PCRA petition, and the
PCRA court appointed counsel. The court conducted a status conference on
December 14, 2017, at which time it granted counsel an additional sixty days
to file either an amended PCRA petition or a no merit letter pursuant to
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887, 891 (Pa.Super. 2011). Presently, and in conformance with the
Birchfield decision, the General Assembly has amended Section 3804(c) to
apply only to refusals of breath tests or testing of blood pursuant to a valid
search warrant.
2With an offense gravity score of 10 for Persons not to Possess and Appellant’s
prior record score of 5, the standard guideline range for the offense was 60 to
72 months. As such, Appellant’s minimum sentence lies at the bottom of the
standard guideline range.
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Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
On January 22, 2018, counsel filed a motion to withdraw as counsel and
a Turner/Finley no-merit letter. On February 28, 2018, the PCRA court filed
an Order and Opinion granting counsel’s petition and providing Rule 907 notice
to Appellant of its intent to dismiss his petition as meritless in twenty days.
Appellant responded by filing another PCRA petition and amendment that
essentially reiterated the issues already raised in his first PCRA petition.
Therefore, on December 20, 2018, the PCRA Court filed an Opinion and Order
dismissing all of Appellant’s PCRA petition as well as his purported subsequent
petition and amendments raising the same issues. This timely pro se appeal
followed.
Appellant presents the following questions for this Court’s consideration:
1. [Should] the Petitioner be granted his direct appeal rights back,
on all of his initial claims, that trial counsel forfeited because of
his abandonment[?]
2. [Did] the lower court commit[ ] reversible error in it’s [sic]
failure to properly address counsel Joshua
Bower/ineffectiveness concerning petitioner open plea hearing,
violating petitioner’s Sixth Amendment right for effective
assistance of counsel[?]
3. [Did] the lower court commit[ ] reversible error in it’s [sic]
failure to properly address counsel Joshua Bower/counsel Ravi
Marfata[‘s] ineffectiveness, for failing to go over with petitioner
his criminal history, offense gravity score and prior record
score[?]
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4. [Were] trial counsel Joshua Bower/counsel Ravi Marfata were
ineffective for advising and inducing petitioner to plead guilty
and in return petitioner would be guaranteed a county sentence
instead of a state sentence in which petitioner received a 1 ½
year to 5 year [sentence], to run concurrent with a 5 years to
[10] years state sentence[?]
Brief for Appellant, at 2.
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the findings of
the PCRA court and the evidence on the record of the PCRA court's
hearing, viewed in the light most favorable to the prevailing party.
Because most PCRA appeals involve questions of fact and law, we
employ a mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by the
record. In contrast, we review the PCRA court's legal conclusions
de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa.Super. 2015)
(citations omitted).
When the PCRA court has dismissed a petitioner’s PCRA
petition without an evidentiary hearing, we review the PCRA
court’s decision for an abuse of discretion. Commonwealth v.
Roney, 79 A.2d 595, 604 (Pa. 2013). The PCRA court has
discretion to dismiss a petition without a hearing when the court
is satisfied that there are no genuine issues concerning any
material fact, the defendant is not entitled to post-conviction
collateral relief, and no legitimate purpose would be served by
further proceedings. Id. To obtain a reversal of a PCRA court’s
decision to dismiss a petition without a hearing, an appellant must
show that he raised a genuine issue of material fact which, if
resolved in his favor, would have entitled him to relief, or that the
court otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).
In order to be eligible for PCRA relief, a petitioner must plead and prove,
inter alia, “[t]hat the allegation of error has not been previously litigated or
waived.” 42 Pa.C.S. § 9543(a)(3). Pursuant to Section 9544, an issue has
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been “previously litigated if ... the highest appellate court in which the
petitioner could have had review as a matter of right has ruled on the merits
of the issue.” 42 Pa.C.S. § 9544(a)(2). Furthermore, an issue is waived “if
the petitioner could have raised it but failed to do so before trial, at trial,
during unitary review, on appeal or in a prior state post conviction
proceeding.” 42 Pa.C.S. § 9544(b). Moreover, in order to preserve an issue
for appellate review, a petitioner must also include the claim in his PCRA
petition. See Commonwealth v. Baumhammers, 92 A.3d 708, 731 (Pa.
2014) (explaining, “waiver cannot be avoided solely by reference to
[petitioner's] Concise Statement of Matters Complained of on Appeal, as such
a statement, which is provided after the notice of appeal has already been
filed, cannot operate to add new substantive claims that were not included in
the PCRA petition itself.”).
Appellant’s claims collectively assert that all prior counsel ineffectively
prepared for his guilty plea and/or provided him with incorrect information
regarding the possibility of receiving a county sentence should he plead guilty.
His further charges the court with erroneously proceeding with the guilty plea
hearing under such circumstances. Finally, Appellant also contends that PCRA
counsel failed to pursue these claims appropriately.
To obtain relief under the PCRA premised on an ineffectiveness claim, a
petitioner must establish, by a preponderance of the evidence, that counsel's
ineffectiveness so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place. Commonwealth
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v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s
performance is presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.” Id.This requires the petitioner to demonstrate that: (1) the underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) counsel’s act or omission prejudiced the petitioner.
Id. at 533.
With regard to claims of ineffectiveness related to the entry of plea, we
further note:
Ineffective assistance of counsel claims arising from the plea
bargaining-process are eligible for PCRA review. 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 into an involuntary or unknowing plea. Where
the defendant enters his plea on the advice of counsel, the
voluntariness of the plea depends on whether counsel’s advice
was within the range of competence demanded of attorneys in
criminal cases.
The standard for post-sentence withdraw of guilty pleas dovetails
with the arguable merit/prejudice requirements for relief based on
a claim of ineffective assistance of plea counsel, ... under which
the defendant must show that counsel’s deficient stewardship
resulted in a manifest injustice, for example, by facilitating the
entry of an unknowing, involuntary, or unintelligent plea. This
standard is equivalent to the “manifest injustice” standard
applicable to all post-sentence motions to withdraw a guilty plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)
(citations omitted).
Initially, we note that Appellant has failed to include his first enumerated
issue in his court-ordered Pa.R.A.P. 1925(b) concise statement of matters
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complained of on appeal. Rule 1925(b) provides that a judge ‘may enter an
order directing the appellant to file of record in the trial court and serve on
the judge a concise statement of the errors complained of on appeal
(‘Statement’).’ The Rule also provides that “[i]ssues not included in the
Statement . . . are waived.”). Pa.R.A.P. 1925(b)(4)(iv).
In Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), our Supreme
Court held that any issues not raised in a court-ordered Rule 1925(b)
statement will be deemed waived. Lord, 719 A.2d at 309. This Court has
held that ‘[o]ur Supreme Court intended the holding in Lord to operate as a
bright-line rule, such that failure to comply with the minimal requirements of
Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised.’
Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d
222, 224 (Pa.Super. 2014) (en banc) (emphasis in original) (quoting
Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005)).
Waiver applies, however, only if the court properly served written notice
of the Rule 1925(b) obligations to Appellant and noted on the docket the giving
of such notice. See Presque Isle, 88 A.3d at 226. “[S]trict application of the
bright-line rule in Lord necessitates strict interpretation regarding notice of
Rule 1925(b) orders.” Id. The certified record confirms the court has satisfied
both obligations in this regard. Therefore, we deem Appellant’s first issue
waived under Rule 1925(b)(4)(iv).
Appellant’s remaining claims center on the asserted invalidity of his
guilty plea. As noted above, some claims allege trial court error, and it is clear
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from our review of the record that Appellant pressed these claims previously
on direct appeal but to no avail. He may not, therefore, relitigate these claims
on collateral review. See 42 Pa.C.S. § 9544(a)(2). Moreover, to the extent
these claims of trial court error are distinct from what Appellant previously
raised and litigated, they are waived, for he could have raised such claims on
direct appeal. See 42 Pa.C.S. § 9544(b).
To the extent Appellant’s challenges to the validity of his plea is couched
within ineffective claims, they are not previously litigated or waived, for “an
ineffective assistance of counsel claim is a separate legal issue distinct from
the underlying substantive claim for which counsel allegedly had provided
ineffective assistance.” Commonwealth v. Derk, 913 A.2d 875, 883 n.6
(Pa. Super. 2006); see also Commonwealth v. Collins, 888 A.2d 564, 573
(Pa. 2005). Nevertheless, Appellant fails to establish arguable merit to any of
the claims assailing the representation he received during his guilty plea
proceedings.
During his guilty plea colloquy, Appellant expressly denied that coercion
or a promised sentence motivated his plea. Moreover, he unequivocally voiced
his satisfaction with counsel. Nothing he asserts herein places his colloquy in
doubt. It follows, therefore, that Appellant’s bare assertion that PCRA counsel
were ineffective for not advancing the claims of guilty plea counsels’
ineffectiveness likewise cannot prevail, it fails as well, for we may not deem
counsel ineffective for failing to raise a meritless claim. Commonwealth v.
Fears, 86 A.3d 795, 809 (Pa. 2014).
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Finally, our review of Appellant’s pro se brief discloses that he raises,
for the first time, a challenge to the legality of his sentence asserting a
violation of Alleyne v. United States, 133 S.Ct. 2151 (2013). However,
Alleyne does not apply to Appellant’s case. Alleyne holds that a finder of
fact must find beyond a reasonable doubt any fact that triggers application of
a mandatory minimum sentence for a crime. The sentence at issue here does
not include a mandatory minimum sentence.
Appellant pled guilty following a negotiated plea and received a five to
ten year sentence for Persons not to Possess under a sentencing guideline
matrix based on his prior record score and offense gravity score. Indeed, the
penalty at Section 6105 does not require a mandatory minimum sentence,
Appellant specifically pled guilty to the facts that supported grading as a felony
of the second degree, and he received a minimum sentence at the bottom of
the standard range and a maximum sentence within the statutory limit for a
felony of the second degree. See 18 Pa.C.S.A. § 1103(2) (setting maximum
sentence for felony of second degree at not more than ten years). Nor did
the court impose a mandatory minimum sentence when resentencing
Appellant on his DUI general impairment conviction, which Appellant, again,
had already supported through his admission to all requisite facts during his
plea. Therefore, we conclude Appellant’s sentence is not illegal under
Alleyne.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2020
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