Com. v. Derrig, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DION DAVID DERRIG :
:
Appellant : No. 1974 MDA 2018
Appeal from the PCRA Order Entered November 7, 2018
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000765-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DION DAVID DERRIG :
:
Appellant : No. 135 MDA 2019
Appeal from the PCRA Order Entered November 7, 2018
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000764-2011
BEFORE: LAZARUS, J., DUBOW, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED JULY 09, 2020
Appellant, Dion David Derrig, appeals pro se from the Orders entered
November 7, 2018, which denied and dismissed his first Petitions for collateral
relief filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
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9546.1 After careful review, we conclude Appellant’s claims lack merit or are
waived. We, thus, affirm.
On March 1, 2012, at Docket No. 765-2011, a jury convicted Appellant
of Receiving Stolen Property and Retail Theft.2 Thereafter, on March 6, 2012,
at Docket No. 764-2011, a separate jury convicted Appellant of Deceptive or
Fraudulent Business Practices.3 On April 2, 2012, the trial court imposed an
aggregate sentence of 32 to 120 months of incarceration. In addition, the
court directed Appellant to pay the costs of prosecution and restitution to the
victims. Appellant timely appealed, and this Court affirmed the Judgment of
Sentence. See Commonwealth v. Derrig, 1711 MDA 2012, 1712 MDA
2012, unpublished memorandum at 2-4 (Pa. Super. filed June 17, 2013).
Appellant did not seek further discretionary review in the Supreme Court.
In 2013, Appellant timely and pro se filed Petitions for collateral relief.
The PCRA court appointed Deborah Barr, Esq. as counsel but thereafter
granted leave for her to withdrawal based upon Appellant’s dissatisfaction with
____________________________________________
1 Throughout these collateral proceedings, Appellant has maintained separate
filings for each criminal docket listed above. The PCRA court issued separate
Orders, one at each of Appellant’s criminal dockets, denying Appellant’s
Petitions. We sua sponte consolidated these appeals as they present similar
issues. Order, 1974 MDA 2018, 135 MDA 2019 (Pa. Super. filed May 17,
2019). As we set forth the procedural history of this case, we will cite to these
criminal dockets separately where necessary.
2 18 Pa.C.S. §§ 3925(a), 3929(a)(1), respectively.
3 18 Pa.C.S. § 4107(a)(2).
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her representation. The PCRA court appointed Patrick Beirne, Esq. to
represent Appellant, but counsel requested leave to withdraw after concluding
that Appellant’s claims lacked merit.4 Following timely responses from
Appellant, the PCRA court granted counsel leave to withdraw and dismissed
Appellant’s Petitions. On appeal, filed by Appellant pro se, this Court
determined that the PCRA court had erred in granting Attorney Beirne leave
to withdraw because counsel had failed to address adequately all of the issues
Appellant sought to litigate. We therefore remanded this case to the PCRA
court with instructions to appoint new counsel to consult with Appellant
regarding his claims and to file an amended Petition or a proper no-merit
letter. See Commonwealth v. Derrig, 219 MDA 2015, 220 MDA 2015,
unpublished memorandum at 4-11 (Pa. Super. filed February 29, 2016).
On remand, the PCRA court appointed Carrie Donald, Esq. to represent
Appellant. Thereafter, Attorney Donald filed Amended Petitions, in relevant
part asserting claims of ineffective assistance of trial counsel.5
The PCRA court held an evidentiary hearing in April 2018. At its outset,
Appellant sought the appointment of new counsel, asserting that Attorney
Donald had not adequately prepared to litigate his claims. After further
____________________________________________
4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
5See Amended Petition, Docket No. 764-2011, 6/28/17; Amended Petition,
Docket No. 765-2011, 6/28/17; Re-Amended Petition, Docket 764-2011,
2/9/18; Re-Amended Petition, Docket No. 765-2011, 2/9/18.
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discussions with the court, including an option to proceed pro se, Appellant
elected to retain Attorney Donald but objected to the omission of issues that
he had previously raised throughout the collateral proceedings. 6 Appellant
testified at the PCRA hearing, detailing his claims against appointed trial and
direct appeal counsel, Robert Fleury, Esq. Attorney Fleury did not testify
because he was in hospice. See generally N.T. PCRA, 4/11/18.
In November 2018, the PCRA court denied Appellant relief and filed
Opinions in support of its decision. Referencing this Court’s prior instructions
to consider all of Appellant’s claims, the PCRA court addressed both those
issues included in Appellant’s counseled Petitions as well as claims that
Appellant had raised in earlier pro se filings or during the PCRA hearing.
Despite continued representation by counsel, Appellant pro se appealed.7 The
court did not direct Appellant to file Pa.R.A.P. 1925(b) Statements.
In this Court, Appellant renewed his efforts to obtain new counsel. See
Application for Substitution of Appointed Counsel, 1974 MDA 2018, 135 MDA
2019, filed 2/21/19. Shortly thereafter, Attorney Donald sought leave to
withdraw because Appellant had expressed to her his intention to proceed pro
____________________________________________
6 By one estimate, Appellant raised as many as forty issues for collateral
review. See Commonwealth v. Derrig, 219 MDA 2015, 220 MDA 2015,
unpublished memorandum at 10.
7 Appellant filed separate Notices of Appeal, one for each of his criminal
dockets.
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se. See Application to Withdraw, 135 MDA 2019, filed 3/7/19. This Court
then remanded to the PCRA court for a hearing to determine whether
Appellant wished to proceed pro se or with current counsel. Order, 1974 MDA
2018, filed 3/19/19; Order, 135 MDA 2019, filed 3/19/19).8
In April 2019, after a hearing, the PCRA court determined that Appellant
knowingly, intelligently, and voluntarily waived his right to counsel in the
instant appeals. PCRA Ct. Order, Docket No. 764-2011, filed 4/5/19; PCRA
Ct. Order, Docket No. 765-2011, filed 4/5/19. Upon regaining jurisdiction, we
sua sponte consolidated these appeals and now proceed to consider
Appellant’s claims.
Appellant raises the following issues:
1. [Whether] the [PCRA] court err[ed] by accepting PCRA
Petition[s] that were not in compliance with [Pa.R.Crim.P.
902(A)(9), (14)(b), and (15)] and this Court’s . . . remand
instructions [set forth in Derrig, 219 MDA 2015, 220 MDA 2015,
unpublished memorandum (Pa. Super. filed February 29, 2016)];
[2.] [Whether] the [PCRA] court abuse[d] its discretion, by
denying [A]ppellant the opportunity to achieve substantial justice,
by denying the Motion [f]or New Counsel, or in the alternative,
the opportunity to proceed pro se with a continuance to re-amend
defective PCRA Petition[s], secure documents and witnesses[;]
[3.] [Whether] the Commonwealth violate[d] [Pa.R.Crim.P. Rule
600, was trial counsel ineffective for not arguing it on direct appeal
and did the court err by dismissing it without proper notification[;]
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8 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988). Despite our
remand, Appellant continued to seek appointment of new counsel in this
Court. See, e.g., Application for Appointment of Counsel, 1974 MDA 2019,
4/3/19. We denied the Application. Order, 1974 MDA 2019, 4/5/19.
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[4.] [Whether] the discretionary aspect of the restitution sentence
imposed [at Docket No. 764-2011] [was] speculative, resulting in
an illegal sentence being imposed[; and]
[5.] [Whether] PCRA counsel Carrie Donald[, Esq.] [was]
ineffective in the manner in which she amended PCRA Petitions
and not securing witnesses and documents[.]
Appellant’s Br. at 4 (suggested answers omitted).9
We review an order denying a petition for collateral relief to determine
whether the PCRA court’s decision is supported by the evidence of record and
free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.
Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014)). “This Court grants great deference to the findings of the PCRA court
if the record contains any support for those findings.” Commonwealth v.
Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) (citation omitted).
“Further, the PCRA court’s credibility determinations are binding on this Court,
where there is record support for those determinations.” Id.To be eligible for relief under the PCRA, a petitioner must establish that
his conviction or sentence resulted from one or more of the enumerated errors
or defects found in 42 Pa.C.S. § 9543(a)(2): a constitutional violation;
ineffective assistance of counsel; an unlawfully induced plea; improper
____________________________________________
9 In his brief, Appellant asserts an additional claim challenging trial counsel’s
stewardship. His failure to include this issue in his Statement of Questions
Involved is fatal to his review of his argument. See Pa.R.A.P. 2116(a).
Moreover, Appellant presents no cogent legal argument that acknowledges
the elements required to establish ineffective assistance of counsel. See
Appellant’s Br. at 31-36. See also Pa.R.A.P. 2119(a)-(e). Accordingly, we
decline to address his claims of trial counsel’s alleged ineffective assistance.
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obstruction by governmental officials; a case where exculpatory evidence has
been discovered; an illegal sentence has been imposed; or the tribunal
conducting the proceeding lacked jurisdiction. See 42 Pa.C.S. §
9543(a)(2)(i)-(viii). In addition, a petitioner must establish that the issues
raised in the PCRA petition have not been previously litigated or waived, and
that “the failure to litigate the issue prior to or during trial, during unitary
review or on direct appeal could not have been the result of any rational,
strategic or tactical decision by counsel.” Id. at § 9543(a)(3), (a)(4).
1. Deficiencies in the Form of Appellant’s Counseled Petitions
Appellant first claims the PCRA court erred when it did not require
appointed counsel to file Petitions compliant with Pennsylvania Rule of
Criminal Procedure 902. See Appellant’s Br. at 21. Appellant alleges several
defects in the Amended Petitions filed by Attorney Donald, including (1) failure
to identify each of Appellant’s former counsel, (2) failure to secure
authorization from Appellant to file petitions on his behalf, and (3) failure to
provide a certification of each witness Appellant intended to call at an
evidentiary hearing. See id. at 21-23. In addition, Appellant argues that the
substance of these filings did not comport with the instructions delivered by
this Court on remand, namely that newly appointed counsel should consider
all issues Appellant sought to raise in these collateral proceedings. See id. at
23-24. Citing Rule 905, Appellant asserts that the PCRA court was required
to order further amendment and that its failure to do so constitutes an abuse
of discretion. See id. at 24.
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Pennsylvania Rule of Criminal Procedure 902 indicates that petitions for
collateral relief shall “substantially” comply with its enumerated requirements,
including the name of each lawyer who has represented the petitioner, a
verification by the petitioner that current counsel is authorized to file a
petition, and a certified list of potential witnesses. See Pa.R.Crim.P. 902(A).
In addition, Pennsylvania Rule of Criminal Procedure 905 provides, in
relevant part, that “[w]hen a petition for post-conviction collateral relief is
defective as originally filed, the judge shall order amendment of the petition,
indicate the nature of the defects, and specify the time within which an
amended petition shall be filed.” Pa.R.Crim.P. 905(B). Our Supreme Court
has clarified that “defective” includes those “petitions that do not comply
substantially with Rule 902[.]” Id. at cmt.
Appellant’s claim warrants no relief. Principally, Appellant
misapprehends the purpose of Rule 905. “This rule indicates the desire of
[the Supreme] Court to provide PCRA petitioners with a legitimate opportunity
to present their claims to the PCRA court in a manner sufficient to avoid
dismissal due to a correctable defect in claim pleading or presentation.”
Commonwealth v. McGill, 832 A.2d 1014, 1024 (Pa. 2003) (citation
omitted); see also, e.g., Commonwealth v. Robinson, 947 A.2d 710, 711
(Pa. 2008) (per curiam Order remanding to the PCRA court for further
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proceedings because it had failed to offer the petitioner an opportunity to
address procedural defects “as contemplated by Pa.R.Crim.P. 905”).10
Any defects in form apparent in the Amended Petitions and Re-Amended
Petitions filed by appointed counsel did not prejudice Appellant. The PCRA
court considered each claim raised therein, finding them devoid of merit, not
deficient in form. See PCRA Ct. Op., Docket No. 764-2011, filed 11/7/18, at
5-8; PCRA Ct. Op., Docket No. 765-2011, filed 11/7/18, at 5-6. In addition,
the court addressed all claims Appellant had raised in prior pro se filings. See
PCRA Ct. Op., Docket No. 764-2011, at 8-18; PCRA Ct. Op., Docket No. 765-
2011, at 7-12. Appellant identifies not a single claim ignored by the court
or dismissed without consideration. To the contrary, Appellant concedes the
court addressed his claims. See Appellant’s Br. at 24 (“The court did address
all the issues[.]”). Thus, Appellant’s claim is without merit.
2. Motion for New Counsel
In his second claim, Appellant asserts that the PCRA court abused its
discretion when, at the outset of his PCRA hearing, the court denied his Motion
for the Appointment of New Counsel. See Appellant’s Br. at 24-25. Appellant
asserts that the PCRA court further abused its discretion when it declined
thereafter Appellant’s oral request for a continuance in order to proceed pro
se with adequate preparation. See id.____________________________________________
10 Per curiam orders are not binding precedent. See Commonwealth v.
Thompson, 985 A.2d 928, 937-38 (Pa. 2009). Nevertheless, they may
provide persuasive authority for how our Supreme Court would decide an
issue.
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Although we recognize that Appellant has elected to proceed pro se, and
we are “willing to construe liberally materials filed by a pro se litigant, pro se
status generally confers no special benefit upon an appellant.”
Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003) (citation
omitted). “This Court will not act as counsel and will not develop arguments
on behalf of an appellant.” Commonwealth v. Hardy, 918 A.2d 766, 771
(Pa. Super. 2007) (citation omitted). Where an appellant fails to develop
arguments sufficiently, with pertinent discussion and citations to legal
authorities, the issue is waived. Id.; In re R.D., 44 A.3d 657, 674 (Pa. Super.
2012); Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008);
Pa.R.A.P. 2119(a)-(e).
Appellant makes appropriate citations to the record. However, he
neither cites legal precedent nor develops a cogent legal argument in support
of his claim. Thus, we deem this claim waived for lack of development.11
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11 Nonetheless, absent waiver, we would conclude the PCRA court did not
abuse its discretion in denying Appellant’s Motion for the Appointment of New
PCRA Counsel. In the Motion, Appellant acknowledged that he had met with
Attorney Donald to discuss his claims but asserted his dissatisfaction with her
representation because she had not included all of them in her Amended
Petitions. See Motion for the Appointment of New Counsel, Docket No. 764-
2011, filed 3/16/18. “A motion for change of counsel by a defendant for whom
counsel has been appointed shall not be granted except for substantial
reasons.” Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa. Super. 2007)
(citation omitted). Under the circumstances present in this case, we conclude
that Attorney Donald’s decision to omit certain claims requested by Appellant
constitutes a strategic decision reflecting her professional judgment—it does
not constitute a substantial reason justifying the appointment of new counsel
to represent Appellant. Thus, even if Appellant had not waived this claim, we
would conclude that it lacked merit.
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3. Ineffective Assistance of Direct Appeal Counsel
In his third claim, Appellant asserts that Attorney Fleury was ineffective
when he conceded, on direct appeal, that Appellant was not denied a speedy
trial in violation of Pennsylvania Rule of Criminal Procedure 600. Appellant’s
Br. at 27-30.
In order to overcome the presumption that counsel has provided
effective assistance, a petitioner must establish that: (1) the underlying claim
has arguable merit; (2) counsel lacked a reasonable basis for his act or
omission; and (3) petitioner suffered actual prejudice. Commonwealth v.
Treiber, 121 A.3d 435, 445 (Pa. 2015). A petitioner must plead and prove
by a preponderance of the evidence each of these elements. 42 Pa.C.S. §
9543(a). A claim will be denied if the petitioner fails to meet any one of these
prongs. See Jarosz, 152 A.3d at 350 (citing Commonwealth v. Daniels,
963 A.2d 409, 419 (Pa. 2009)).
Appellant has not presented an analysis within this required framework.
See Appellant’s Br. at 27-30. Although he has set forth certain legal authority
relevant to his underlying claim that the Commonwealth failed to bring him to
trial in timely fashion, Appellant has not addressed whether counsel had a
reasonable basis for conceding on direct appeal that there was no Rule 600
violation, nor has Appellant sought to demonstrate that he suffered prejudice
based on counsel’s actions. Thus, we conclude that Appellant has not
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established that Attorney Fleury was ineffective in failing to pursue a Rule 600
claim on direct appeal.12
4. Discretionary Aspects of Appellant’s Sentence
In his fourth issue, Appellant challenges the discretionary aspects of the
restitution sentence imposed at Docket No. 764-2011 for his conviction of
Deceptive or Fraudulent Business Practices. See Appellant’s Br. at 37-38.
Appellant asserts that the restitution imposed is speculative, without record
support, and excessive because “the court failed to take into consideration the
material and labor [A]ppellant did supply” to the victims. Id. at 37-38.
A claim that an order of restitution is excessive implicates the
discretionary aspects of a sentence. Commonwealth v. Weir, 201 A.3d 163,
174 (Pa. Super. 2018) (citing In the Interest of M.W., 725 A.2d 729, 731
n.4 (Pa. 1999)); Commonwealth v. Holmes, 155 A.3d 69, 78 (Pa. Super.
2017) (en banc) (plurality) (“Where . . . statutory authority exists, . . . the
imposition of restitution is vested within the sound discretion of the sentencing
judge.” (citation omitted)).
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12 Further, we discern no error in the PCRA court’s conclusion that no Rule 600
violation occurred in Appellant’s cases. See PCRA Ct. Op., Docket No. 764-
2011, at 7-8; PCRA Ct. Op., Docket No. 765-2011, at 10. The Commonwealth
filed all charges against Appellant in September 2010. However, Appellant
was incarcerated in New York at the time for unrelated crimes and, thus,
unavailable for Rule 600 purposes until August 2011. See Commonwealth
v Booze, 947 A.2d 1287, 1291 (Pa. Super. 2008); Pa.R.Crim.P. 600 cmt.
(Computation of Time). Thereafter, the Commonwealth proceeded with due
diligence to bring Appellant to trial in timely fashion. Thus, Appellant’s
underlying claim is without merit.
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Challenges to discretionary aspects of sentencing are not cognizable
under the PCRA. Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super.
2007) (“Challenges to the discretionary aspects of sentencing are not
cognizable under the PCRA”); see also Commonwealth v. Jordan, 772 A.2d
1011, 1016 (Pa. Super. 2001) (observing that “[t]his Court's case law has
stated that a challenge to the discretionary aspects of sentencing is a matter
that must be reviewed in the context of a direct appeal and cannot be reviewed
in the context of the PCRA”); 42 Pa.C.S. § 9543(a)(2).
Appellant’s claim challenging the discretionary aspects of his sentence
is not cognizable under the PCRA. Accordingly, no relief is due.
5. Ineffective Assistance of PCRA Counsel
Finally, in his fifth issue, Appellant asserts that his most recent PCRA
counsel, Attorney Donald, was ineffective for failing to secure witnesses to
testify at his PCRA hearing. See Appellant’s Br. at 39. As with his claim
against direct appeal counsel, supra, Appellant has failed to address the
elements necessary to establish ineffective assistance of counsel: (1) an
underlying claim of arguable merit; (2) the lack of any reasonable basis for
counsel’s act or omission; and (3) petitioner suffered actual prejudice. See
Treiber, supra, at 445. Accordingly, this issue is waived.13
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13 Generally, notwithstanding limited circumstances absent here, claims
asserting ineffective assistance of PCRA counsel must await a serial petition
for collateral relief. See Commonwealth v. Henkel, 90 A.3d 16, 21-30 (Pa.
Super. 2014) (en banc) (detailing the evolution of case law interpreting the
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Conclusion
We are mindful that Appellant elected to proceed pro se. Thus, we have
thoroughly reviewed Appellant’s claims, as well as his arguments on appeal,
and we have set forth substantive analysis addressing his claims wherever
possible. Nevertheless, for the reasons set forth in detail above, Appellant’s
claims lack merit or have been waived on appeal. Accordingly, we affirm the
Orders of the PCRA court dismissing Appellant’s Petitions for collateral relief.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/09/2020
____________________________________________
rule-based right to counsel in initial collateral proceedings); Commonwealth
v. Shaw, 214 A.3d 283, 292-93 (Pa. Super. 2019) (addressing claim that
PCRA counsel had waived appellate consideration of the only claim presented
at a PCRA hearing). Appellant has made no effort to address these precedents
apart from a single statement conceding that he “cannot find any case law”
supporting immediate appellate review of his claim. Thus, for this reason as
well we decline to address his claim that Attorney Donald was ineffective
during these collateral proceedings.
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