Com. v. Oree, J. ( 2023 )


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  • J-S11004-23
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
    COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                           :
    :
    :
    JOEL OREE                                 :
    :
    Appellant              :   No. 2029 EDA 2021
    Appeal from the PCRA Order Entered April 15, 2021
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0000859-2014
    BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
    MEMORANDUM BY OLSON, J.:                               FILED AUGUST 8, 2023
    Appellant, Joel Oree, appeals from an order entered on April 15, 2021
    in the Criminal Division of the Court of Common Pleas of Philadelphia County
    that denied his petition filed pursuant to the Post-Conviction Relief Act (PCRA),
    42 Pa.C.S.A. §§ 9541-9546. We affirm.
    Because the issue in this appeal focuses exclusively upon the advice
    given by trial counsel concerning Appellant’s election to proceed by way of a
    waiver trial, and not before a jury, we shall dispense with a recitation of the
    historical facts underlying Appellant’s convictions.    Instead, we incorporate
    our prior recitation of the relevant events, which we set forth in the context
    of direct appeal. See Commonwealth v. Oree, 
    2017 WL 2259028
    , *1 (Pa.
    Super. 2017) (unpublished memorandum).
    At the conclusion of a waiver trial on February 5, 2015, the court found
    Appellant guilty of rape, involuntary deviate sexual assault (IDSI), sexual
    J-S11004-23
    assault, indecent exposure, and indecent assault. Thereafter, on August 21,
    2015, the trial court sentenced Appellant to seven to 14 years' incarceration
    followed by six years' probation for the rape conviction, and two concurrent
    terms of 10 years' probation for the IDSI and sexual assault convictions. All
    of Appellant’s terms of probation were imposed concurrently and no further
    penalty was imposed for Appellant’s other convictions.
    Appellant timely filed a notice of appeal after the trial court denied his
    post-sentence motion. On May 23, 2017, this Court held that the trial court
    erred in imposing a separate sentence on Appellant’s sexual assault
    conviction, which should have merged with the rape and IDSI convictions.
    See Oree, 
    2017 WL 2259028
    , at *3. We found remand to be unnecessary,
    however, because the trial court imposed concurrent sentences on the sexual
    assault and IDSI convictions and vacating the judgment of sentence for sexual
    assault did not affect the overall sentencing scheme. See 
    id.
    Appellant filed his first PCRA petition on October 30, 2017. On January
    31, 2019, appointed counsel filed an amended petition alleging that trial
    counsel was ineffective in advising Appellant to waive his right to a jury trial.
    The PCRA court convened an evidentiary hearing on February 7, 2020.
    Appellant, his daughter, and trial counsel testified at the hearing. Both
    Appellant and his daughter testified that they told trial counsel that Appellant
    wished to proceed before a jury. Appellant conceded that, on the day of trial,
    he executed a written waiver and orally informed the trial court that he wanted
    a bench trial. Appellant explained, however, that he made this election on the
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    advice of trial counsel and felt that he had no alternative.        Trial counsel
    testified that he explained his fee structure to both Appellant and his daughter
    and made clear to them that he could not represent Appellant at a jury trial,
    given the financial resources available to Appellant and his family.         Trial
    counsel also testified that he advised both Appellant and his daughter that
    Appellant would be ably represented at either a jury trial or a waiver trial if he
    accepted the appointment of a public defender. The PCRA court credited the
    testimony of trial counsel and, on April 15, 2021, dismissed Appellant’s
    petition. Eventually, Appellant filed a notice of appeal on September 1, 2021.
    Appellant raises the following question for our review.
    Did the [PCRA] court err in dismissing Appellant’s post-conviction
    relief petition where the record indicated that trial counsel was
    ineffective for misadvising Appellant to waive his right to a jury
    trial because Appellant could not afford [one]?
    Appellant’s Brief at 3.
    We first consider whether we have jurisdiction over the merits of
    Appellant’s claim, a question we may raise sua sponte. See Commonwealth
    v. Valentine, 
    928 A.2d 346
    , 349 (Pa. Super. 2007). Appellant’s judgment of
    sentence became final for purposes of the PCRA on June 22, 2017, 30 days
    after this Court affirmed the judgment on May 23, 2017, within the context of
    direct appeal. See 42 Pa.C.S.A. § 9545(b)(3) (“For purposes of [the PCRA],
    a judgment becomes final at the conclusion of direct review, including
    discretionary review in the Supreme Court of the United States and the
    Supreme Court of Pennsylvania, or at the expiration of time for seeking the
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    review.”). On October 30, 2017, Appellant filed his first, timely PCRA petition.
    Following several continuances, the filing of amended petitions, and an
    evidentiary hearing, the PCRA court dismissed Appellant’s petition on April 15,
    2021. No appeal was filed within 30 days.
    On June 1, 2021, counsel for Appellant filed a second PCRA petition,
    seeking reinstatement of Appellant’s right to appeal the denial of his original
    petition.    Appellant’s second petition alleged that Appellant requested an
    appeal of the order dismissing his first petition, but no appeal was taken due
    to clerical error. On August 11, 2021, the PCRA court granted Appellant’s
    second petition and reinstated Appellant’s right to appeal the April 15, 2021
    dismissal order.     Counsel for Appellant then filed a notice of appeal on
    September 1, 2021.
    Appellant’s second petition was patently untimely, as it was filed more
    than one year after Appellant’s judgment of sentence became final on June
    22, 2017. See 42 Pa.C.S.A. § 9545(b)(1) (“[a]ny petition under [the PCRA],
    including a second or subsequent petition, shall be filed within one year of the
    date the judgment becomes final”). Here, Appellant asked counsel to appeal
    the dismissal of his first petition, but counsel failed to do so owing to clerical
    error.     Appellant’s second petition alleged that the failure to appeal was
    unknown to Appellant, which implicated one of the timeliness exceptions
    included in the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Our Supreme Court
    has recognized that the discovery of counsel’s ineffectiveness can constitute
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    an unknown fact that triggers the timeliness exception set forth at Section
    9545(b)(1)(ii). See Commonwealth v. Bennett, 
    930 A.2d 1264
    , 1273 (Pa.
    2007) (observing that the failure of counsel to file a requested appeal “is the
    functional equivalent of having no counsel at all,” which “requires a finding
    of prejudice”) (emphasis in original). In addition, Appellant filed his second
    PCRA petition on June 1, 2021, which was within one year of his discovery
    that counsel failed to appeal from the April 15, 2021 dismissal order. See 42
    Pa.C.S.A. § 9545(b)(2). The PCRA court granted Appellant’s second petition
    on August 11, 2021 and counsel filed a notice of appeal on September 1,
    2021, within 30 days of the court’s reinstatement order. See Pa.R.A.P. 903
    (notice of appeal shall be filed within 30 days after entry of order from which
    appeal is taken).      Under these circumstances, we conclude that Appellant
    validly invoked an exception to the PCRA’s one-year time bar and that we
    have jurisdiction to reach the merits of this timely-filed PCRA appeal.1
    ____________________________________________
    1 Generally, Pennsylvania courts do not permit counsel to litigate his own
    ineffectiveness. See Commonwealth v. Spotz, 
    18 A.3d 244
    , 329 n.52 (Pa.
    2011). Counsel here, however, is not “litigating” the clerical error which led
    to his failure to timely appeal the April 15, 2021 dismissal order. Instead,
    counsel’s self-accusation was clearly meritorious, which is confirmed by the
    June 1, 2021 PCRA court order that granted relief, and centered on a relatively
    insignificant feature of these proceedings. In short, we see no reason to view
    counsel’s self-accusation as an impediment to appellate review under the
    circumstances before us. See Commonwealth v. Bond, 
    819 A.2d 33
    , 39
    n.2 (Pa. 2002) (observing that it would be inappropriate to remove counsel
    based upon mere boilerplate assertions of their own incompetence).
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    Appellant claims that trial counsel was ineffective in advising Appellant
    to waive his right to a jury trial, given that counsel could not represent
    Appellant before a jury in exchange for the financial resources available to
    Appellant, and in allegedly failing to advise Appellant that he could retain other
    counsel. This claim merits no relief.
    We apply the following standard of review to an order denying or
    dismissing a petition for collateral relief.
    When reviewing the denial of a PCRA petition, we must determine
    whether the PCRA court's order is supported by the record and
    free of legal error. Generally, we are bound by a PCRA court's
    credibility determinations. However, with regard to a court's legal
    conclusions, we apply a de novo standard.
    Commonwealth v. Johnson, 
    139 A.3d 1257
    , 1272 (Pa. 2016) (quotation
    marks and quotations omitted). The findings of the PCRA court are “viewed
    in the light most favorable to the prevailing party.”       Commonwealth v.
    Duffy, 
    889 A.2d 56
    , 61 (Pa. 2005).         Moreover, these findings “will not be
    disturbed unless there is no support for the findings in the certified record.”
    Commonwealth v. Weimer, 
    167 A.3d 78
    , 81 (Pa. Super. 2017).
    Also,
    In order to be eligible for PCRA relief, the petitioner must prove
    by a preponderance of the evidence that his conviction or sentence
    resulted from one or more of the enumerated circumstances found
    in Section 9543(a)(2), which includes the ineffective assistance of
    counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).
    It is well-established that counsel is presumed effective, and to
    rebut that presumption, the PCRA petitioner must demonstrate
    that counsel's performance was deficient and that such deficiency
    prejudiced him. To prevail on an ineffectiveness claim, the
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    petitioner has the burden to prove that (1) the underlying
    substantive claim has arguable merit; (2) counsel whose
    effectiveness is being challenged did not have a reasonable basis
    for his or her actions or failure to act; and (3) the petitioner
    suffered prejudice as a result of counsel's deficient performance.
    The failure to satisfy any one of the prongs will cause the entire
    claim to fail.
    Commonwealth v. Benner, 
    147 A.3d 915
    , 919–20 (Pa. Super. 2016)
    (quotation marks, quotations, and citations omitted).
    Turning to the merits of Appellant’s precise claim, our Supreme Court
    has observed that:
    [t]he essential elements of a jury waiver, though important and
    necessary to an appreciation of the right, are nevertheless simple
    to state and easy to understand. The . . . essential ingredients,
    basic to the concept of a jury trial, are the requirements that the
    jury be chosen from members of the community (a jury of one's
    peers), that the verdict be unanimous, and that the accused be
    allowed to participate in the selection of the jury panel.
    Commonwealth v. Mallory, 
    941 A.2d 686
    , 696–697 (Pa. 2008) (footnote,
    citations, and quotation omitted).
    At trial, Appellant executed a written waiver colloquy and responded in
    the affirmative when asked whether he knew and understood the critical
    components of a jury trial, whether he discussed these issues with counsel,
    whether he comprehended the importance of the rights subject to waiver, and
    whether he intended to waive those rights freely. Detailed, written waivers
    that are signed and presented in court are generally accorded prima facie
    validity. See id. at 704.
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    “When a presumptively-valid waiver is collaterally attacked under the
    guise of ineffectiveness of counsel, it must be analyzed like any other
    ineffectiveness claim.    Such an inquiry . . . must focus on the totality of
    relevant circumstances.”       Id. at 698.   “Those circumstances include the
    defendant's knowledge of and experience with jury trials, his explicit written
    waiver (if any), and the content of relevant off-the-record discussions counsel
    had with his client.” Id. “Counsel's advice to waive a jury trial can be the
    source of a valid claim of ineffective assistance of counsel only when [] counsel
    interferes with his client's freedom to decide to waive a jury trial [or when a
    defendant] can point to specific advice of counsel so unreasonable as to vitiate
    the knowing and intelligent waiver of his right.”       See Commonwealth v.
    Hooks, 
    394 A.2d 528
    , 532 (Pa. 1978).             To demonstrate prejudice, the
    defendant must show a reasonable probability that, but for counsel's
    constitutionally   deficient   representation,   the   outcome   of   the   waiver
    proceeding would have been different, i.e., that the defendant would not have
    waived his right to a jury trial. See Mallory, 941 A.2d at 697.
    Based upon the totality of circumstances established by the certified
    record, we agree with the PCRA court that Appellant is not entitled to relief
    because he knowingly and voluntarily relinquished his right to a jury trial and
    understood his options when he retained private counsel who could not
    represent him at a jury trial. There was ample testimony that allowed the
    PCRA court to conclude that Appellant was familiar with the criminal justice
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    system since he previously used the services of the public defender’s office.
    Based upon this evidence, the court inferred that Appellant understood “how
    to contact the public defender and retain their services.” Trial Court Opinion,
    7/29/22, at 5.    In fact, Appellant admitted he was aware he could switch
    attorneys.   See N.T. PCRA Hearing, 2/7/20, at 18.           Rather than accept
    representation by the public defender (who could represent Appellant at a jury
    trial), Appellant knowingly and willingly declined their services and hired
    private counsel who explained that he could not represent Appellant at a jury
    trial, given the financial resources Appellant and his family could afford to
    spend on this matter. In short, Appellant asks us to reweigh the testimony
    and reject the well-supported findings of the PCRA court. We are unwilling to
    do so. Since counsel did not interfere with Appellant’s freedom to waive a
    jury trial and since Appellant has pointed to no specific advice of counsel that
    vitiated a knowing and intelligent waiver of Appellant’s right to a jury trial, we
    affirm the order that denied Appellant’s petition for collateral relief.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/8/2023
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Document Info

Docket Number: 2029 EDA 2021

Judges: Olson, J.

Filed Date: 8/8/2023

Precedential Status: Precedential

Modified Date: 8/8/2023