Com. v. Santucci, E. ( 2020 )

J-S08035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EVAN CHARLES SANTUCCI, :
:
Appellant : No. 1126 WDA 2019
Appeal from the PCRA Order Entered July 22, 2019
in the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000854-2017
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 24, 2020
Evan Charles Santucci (“Santucci”) appeals from the Order dismissing
his first Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
Santucci was represented by Stephen Miller, Esquire (“Attorney Miller”),
who negotiated a plea agreement with the Commonwealth whereby Santucci
agreed to waive his preliminary hearing, plead guilty to Receiving Stolen
Property (“RSP”), a third-degree felony,2 and testify against his co-defendant.
In exchange, the Commonwealth agreed to withdraw all remaining charges,
consent to unsecured bail, and not object to a defense request for the
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
2 18 Pa.C.S.A. § 3925(a).
J-S08035-20
imposition of the sentence concurrently with Santucci’s pending sentence in
Blair County.3 In accordance with the plea agreement, Santucci waived his
preliminary hearing, and his bail was modified to unsecured.
On April 25, 2018, Santucci pled guilty to RSP, a third-degree felony.
Sentencing was deferred until July 10, 2018, where Santucci was sentenced
to 12 to 36 months in prison, to be served consecutively to his state parole
revocation sentence.4 At the sentencing hearing, Attorney Miller did not
mention or request a concurrent sentence. Santucci filed a timely post-
sentence Motion on July 20, 2018, requesting that the trial court modify his
sentence in accordance with the Commonwealth’s agreement to not object to
concurrent sentences. The trial court did not rule on the post-sentence
Motion.
Santucci did not file a direct appeal and, instead, proceeded to file a pro
se PCRA Petition on December 3, 2018. Santucci alleged that Attorney Miller
____________________________________________
3 Santucci had a separate, unrelated, case in Blair County, and the parties
anticipated Santucci being sentenced in Blair County prior to being sentenced
in the instant case.
4 At the time of sentencing on the instant case, Santucci was serving a
sentence on a parole revocation that was unrelated to either the instant case,
or his pending Blair County sentence.
-2-
J-S08035-20
had improperly induced him to plead guilty.5 Santucci was subsequently
appointed counsel, Megan Will, Esquire (“Attorney Will”), who filed an
Amended PCRA Petition. The PCRA court conducted an evidentiary hearing,
after which it dismissed Santucci’s PCRA Petition. Santucci filed a timely
Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
matters complained of on appeal.
On appeal, Santucci raises the following question for our review:
____________________________________________
5 In its Opinion, the PCRA court stated that the trial court had denied
Santucci’s post-sentence Motion. See PCRA Court Opinion, 11/22/19, at 3.
However, the record is devoid of any such order, written or otherwise, and
therefore we conclude that the trial court intended to deny Santucci’s post-
sentence Motion by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(a)
(providing “the judge shall decide the post-sentence motion … within 120 days
of the filing of the motion. If the judge fails to decide the motion within 120
days … the motion shall be deemed denied by operation of law.”); see also
Pa.R.Crim.P. 720(B)(3)(c) (stating, “[w]hen a post-sentence motion is denied
by operation of law, the clerk of courts shall forthwith enter an order of behalf
of the court.”). However, no such order was entered by the clerk of courts.
We note that if the clerk of courts had properly denied Santucci’s post-
sentence Motion by operation of law, the denial should have been docketed
on November 19, 2018. Thereafter, Santucci would have had until December
19, 2018, to file a direct appeal. Santucci filed his pro se PCRA Petition on
December 3, 2018. Thus, Santucci’s pro se PCRA Petition was filed before his
judgment of sentence became final.
Nevertheless, we perceive no error in the PCRA court entertaining the
Petition because Santucci never pursued a direct appeal. Cf.
Commonwealth v. Leslie, 757 A.2d 984 (Pa. Super. 2000) (stating that the
PCRA court should have dismissed petition without prejudice as premature
given pendency of direct appeal). Additionally, none of Santucci’s claims in
his pro se PCRA Petition, nor his Amended PCRA Petition, request or require a
direct appeal. Notably, Santucci’s only claims allege ineffective assistance of
counsel, a claim which may only be raised under the PCRA, and which we
discuss infra. See 42 Pa.C.S.A. § 9543(a)(2)(ii).
-3-
J-S08035-20
Whether the [PCRA] [c]ourt erred in dismissing [Santucci]’s
[A]mended [PCRA] [P]etition by finding [Santucci] did not prove
his claim of ineffective assistance of counsel[?]
Brief for Appellant at 5.
“The standard of review of an order dismissing a PCRA petition is
whether that determination is supported by the evidence of record and is free
from legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super.
2017). “The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.” Id. (citation omitted).
To prevail on a claim of ineffective assistance of counsel under the PCRA,
a petitioner must plead and prove, 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.” 42
Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that “the
underlying claim has arguable merit; second, that counsel had no reasonable
basis for his action or inaction; and third, that [the a]ppellant was prejudiced.”
Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa. Super. 2014). “A
PCRA petitioner must address each of these prongs on appeal.”
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).
Santucci argues that Attorney Miller was ineffective because Attorney
Miller failed to advise the trial court about the Commonwealth’s agreement
not to object to a defense request for concurrent sentences. See Brief for
Appellant at 10-12, 14-15. Santucci contends that his sentence would have
-4-
J-S08035-20
been eligible to run concurrently with his pending sentence in Blair County.
Id. at 14.
Here, Santucci fails to develop any of the prongs of an ineffectiveness
claim. See Wholaver, supra. Moreover, as noted by the PCRA court in its
Opinion, and conceded by Santucci in his brief, it was impossible for the trial
court to run Santucci’s sentence concurrently with the parole revocation
sentence. See PCRA Court Opinion, 11/22/19, at 5; see also
Commonwealth v. Kelley, 136 A.3d 1007, 1013-14 (Pa. Super. 2016)
(stating that a sentence imposed concurrent with a parolee’s backtime on the
original state sentence is an illegal sentence); 61 Pa.C.S.A. § 6138(a)(5)(i)
(providing that “[i]f a new sentence is imposed on the parolee, the service of
the balance of the term originally imposed … shall precede the commencement
of the new term imposed.”). Additionally, despite Santucci’s argument that
his Blair County sentence would have been eligible for a concurrent sentence,
the trial court could not have granted him such a sentence as Blair County
had not yet sentenced him. See Commonwealth v. Dorian, 460 A.2d 1121,
1122 (Pa. Super. 1983) (stating that the sentencing court has authority to
order a sentence to run concurrently with a previously imposed sentence);
see also Pa.R.Crim.P. 705(b) (providing that “when a sentence is imposed on
a defendant who is sentenced for another offense, the judge shall state
whether the sentences shall run concurrently or consecutively.”). Because
Santucci’s claim lacks arguable merit, his ineffectiveness claim fails on this
basis, as well. See Charleston, supra.
-5-
J-S08035-20
Santucci also argues, specifically, that by failing to file a pre-trial motion
“alerting the [trial c]ourt to the proffered plea agreement,” Attorney Miller
rendered ineffective assistance of counsel. Brief for Appellant at 15. Santucci
fails to adequately develop this claim as well. See Wholaver, supra. For
the reasons stated above, Santucci’s underlying claim lacks arguable merit.
See Kelley, supra; see also Dorian, supra.
Santucci also, more generally, argues that Attorney Miller rendered
ineffective assistance of counsel by failing to file any pre-trial motions. Brief
for Appellant at 15. Santucci claims that Attorney Miller’s failure to file “any
pre-trial motions” has “prejudiced him greatly.” Id.
However, Santucci fails to adequately develop this claim. See
Wholaver, supra. In particular, Santucci does not identify the specific
motions that Attorney Miller should have filed, nor does he explain how or why
any pre-trial motions would have been meritorious. Therefore, in the absence
of specific pre-trial motions that could have been filed, and any discussion
regarding why Santucci believes that those motions would have been
meritorious, we find no basis upon which to conclude that Attorney Miller was
ineffective.
Finally, Santucci claims that Attorney Miller was ineffective in counseling
him to waive his preliminary hearing. Brief for Appellant at 10-13.
Specifically, Santucci claims he only “agreed to waive his preliminary …
hearing on the advice of Attorney Miller,” where Attorney Miller was
attempting to “foster goodwill with the Commonwealth.” Id. at 13.
-6-
J-S08035-20
An attorney and his client may “waive[] the preliminary hearing in
exchange for a quid pro quo benefit, such as a reduction in bail or
withdrawal of charges….” Pa.R.Crim.P. 541(A)(1), Cmt. (emphasis added).
Santucci fails to demonstrate that Attorney Miller lacked a reasonable basis to
recommend waiving his preliminary hearing. See Commonwealth v.
Sandusky, 203 A.3d 1033, 1085 (Pa. Super. 2019) (stating that waiving the
preliminary hearing in order to avoid incarceration can constitute a reasonable
basis). Moreover, Santucci fails to demonstrate how he was prejudiced by the
waiver of his preliminary hearing. See id. (stating that a bald assertion that
the hearing could have provided additional impeachment evidence is not
enough to demonstrate prejudice); see also Commonwealth v. McBride,
570 A.2d 539, 540-41 (Pa. Super. 1990) (stating that an appellant fails to
show that waiver of the preliminary hearing establishes specific prejudice
where the appellant’s only contention is that “his defense was hampered
because he had not previously heard the Commonwealth’s witnesses
testify.”).
It is clear from the record that Santucci actually benefited from the
waiver of his preliminary hearing because the Commonwealth withdrew three
other charges graded as either first-degree felonies or second-degree felonies,
and Santucci’s bail was modified to unsecured. See Pa.R.Crim.P. 541(A)(1),
Cmt. Therefore, in the absence of more specific and developed averments of
prejudice, we find no basis upon which to conclude that Attorney Miller was
ineffective.
-7-
J-S08035-20
Based upon the foregoing, we conclude that the PCRA court did not
abuse its discretion in dismissing Santucci’s PCRA Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2020
-8-