Com. v. Haines, D. ( 2023 )

J-S32044-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERICK HAINES :
:
Appellant : No. 200 MDA 2023
Appeal from the PCRA Order Entered January 31, 2023
In the Court of Common Pleas of Columbia County Criminal Division at
No(s): CP-19-CR-0000333-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERICK MICHAEL HAINES :
:
Appellant : No. 201 MDA 2023
Appeal from the PCRA Order Entered January 31, 2023
In the Court of Common Pleas of Columbia County Criminal Division at
No(s): CP-19-CR-0000810-2019
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED: DECEMBER 28, 2023
Appellant Derick Michael Haines appeals from the order denying his
timely first Post Conviction Relief Act1 (PCRA) petition. Appellant’s counsel
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1 42 Pa.C.S. §§ 9541-9546.
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(PCRA Counsel) has filed a petition to withdraw and a Turner/Finley brief.2
For the reasons that follow, we affirm the PCRA court’s order and grant PCRA
Counsel’s petition to withdraw.
On September 5, 2019, Appellant entered open guilty pleas to burglary3
at Docket No. 333-2019 and conspiracy to furnish contraband to a prison
inmate4 (contraband conspiracy) at Docket No. 810-2019. On November 5,
2019, the trial court imposed one to two years’ incarceration for burglary and
a consecutive term of eighteen months to four years’ incarceration for
contraband conspiracy. Travis Petty, Esq. (trial counsel) represented
Appellant at the plea hearing and at sentencing. Appellant did not file any
post-sentence motions nor a direct appeal.
On February 19, 2020, Appellant filed his timely first pro se PCRA
petition listing both trial court docket numbers. Therein, Appellant argued
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2 We note that PCRA Counsel erroneously filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009), which provide the procedure for counsel to withdraw in a
direct appeal. Because PCRA Counsel is seeking to withdraw in a PCRA-related
appeal, he should have proceeded under the requirements set forth in
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See Commonwealth
v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). However, because an
Anders/Santiago brief provides greater protections to Appellant, we may
accept an Anders/Santiago brief in lieu of a Turner/Finley brief. See id.For purposes of our discussion, we refer to PCRA Counsel’s brief as a
Turner/Finley brief.
3 18 Pa.C.S. § 3502(a)(4).
4 18 Pa.C.S. §§ 903, 5123(a).
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that trial counsel was ineffective for failing to file a pre-trial motion to suppress
and a pre-trial motion to dismiss pursuant to Pa.R.Crim.P. 600. See Pro se
PCRA Pet., 2/19/20, at 5-6 (unpaginated). Appellant further claimed that trial
counsel provided inaccurate advice to him about his guilty plea, however,
Appellant did not expressly claim that trial counsel’s ineffectiveness caused
him to enter an involuntary or unknowing plea. See id. at 3-4 (unpaginated).
The PCRA court appointed PCRA Counsel to represent Appellant, who
subsequently filed two amended PCRA petitions. In his second amended PCRA
petition, Appellant contended that trial counsel was ineffective in advising
Appellant to plead guilty because trial counsel erroneously told Appellant that
he was subject to a mandatory minimum sentence for the contraband
conspiracy offense. See Second Am. PCRA Pet., 11/16/22, at 2
(unpaginated). Additionally, Appellant contends that trial counsel erred by
advising Appellant that if he entered a guilty plea, Appellant would be eligible
to participate in the boot camp and state intermediate punishment (SIP)
programs as part of his sentence. See id. Lastly, Appellant claims that trial
counsel was ineffective because he failed to file post-sentence motions and
direct appeals after Appellant requested him to do so. See id. However, we
note that Appellant did not include his pro se petition claim that trial counsel
was ineffective for failing to file pre-trial motions in either his first or second
amended petitions.
The PCRA court held an evidentiary hearing on January 5, 2023.
Appellant and trial counsel both testified at the hearing. At the conclusion of
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the hearing, the PCRA court placed its findings of fact and conclusions of law
on the record and orally denied Appellant’s PCRA petition. See N.T. PCRA
Hr’g, 1/5/23, at 24-25. The PCRA court confirmed its denial of Appellant’s
PCRA petition in a written order entered on January 31, 2023.5
Appellant filed timely notices of appeal.6,7 On March 6, 2023, PCRA
Counsel filed a notice of intent to file a Turner/Finley brief on appeal pursuant
to Pa.R.A.P. 1925(c)(4). The trial court subsequently issued a Rule 1925(a)
opinion acknowledging that PCRA Counsel intended to withdraw pursuant to
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5 We note that although the PCRA court’s order was time-stamped and entered
on the docket on January 30, 2023, the docket entries reflect that the PCRA
court served Appellant with a copy of this order on January 31, 2023. See
Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000) (stating
that “[i]n a criminal case, the date of entry of an order is the date the clerk of
courts enters the order on the docket, furnishes a copy of the order to the
parties, and records the time and manner of notice on the docket” (citations
omitted)); see also Pa.R.Crim.P. 114(C)(2)(c); Pa.R.A.P. 108(a)(1), (d)(1).
We have amended the caption accordingly.
6 Although the PCRA court orally denied Appellant’s PCRA petition at the
conclusion of the January 5, 2023 evidentiary hearing, as noted above, its
order was not entered on the docket until January 30, 2023, and filed on
January 31, 2023. Therefore, Appellant’s notice of appeal, filed on February
6, 2023, is timely filed. See Commonwealth v. Goldman, 70 A.3d 874, 878
n.2 (Pa. Super. 2013) (concluding that the appeal period began to run from
the date on which the orders denying Commonwealth’s motions to vacate nolle
prosequis were entered the trial court docket, and not from the date the trial
court orally denied the motions); see also Pa.R.A.P. 301(a)(1) (stating that
“no order of a court shall be appealable until it has been entered upon the
appropriate docket in the trial court”); Jerman, 762 A.2d at 368.
7 This Court consolidated the appeals pursuant to Pa.R.A.P. 513 on March 1,
2023.
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Turner/Finley, but did not address the claims Appellant raised in his first and
second amended PCRA petitions.
On appeal, PCRA Counsel filed a petition to withdraw and a
Turner/Finley brief stating that he thoroughly reviewed the case, believed
that an appeal would be wholly frivolous, notified Appellant of his intent to
withdraw, and provided Appellant with copy of his brief. PCRA Counsel has
provided this Court with a copy of his letter to Appellant, which informed
Appellant of his right to proceed pro se or with private counsel. Resp. to
Order, 6/20/23. Appellant did not file a response either pro se or through
private counsel.
In the Turner/Finley brief, PCRA Counsel identifies the following issues,
which we reorder and rephrase as follows:
1. Was trial counsel ineffective for failing to file pre-trial motions?
2. Was trial counsel ineffective in advising Appellant to plead
guilty?
3. Was trial counsel ineffective for failing to file post-sentence
motions and/or a direct appeal?
See Turner/Finley Brief at 11-12, 16.
Before addressing the merits of the matters raised in PCRA Counsel’s
Turner/Finley brief, we must first consider whether PCRA Counsel met the
technical requirements for withdrawing from representation.
Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa. Super. 2016). This Court
has explained:
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[c]ounsel petitioning to withdraw from PCRA representation must
proceed under [Turner and Finley] and must review the case
zealously. Turner/Finley counsel must then submit a “no-merit”
letter to the trial court, or brief on appeal to this Court, detailing
the nature and extent of counsel’s diligent review of the case,
listing the issues which petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
Where counsel submits a petition and no-merit letter that satisfy
the technical demands of Turner/Finley, the court—trial court or
this Court—must then conduct its own review of the merits of the
case. If the court agrees with counsel that the claims are without
merit, the court will permit counsel to withdraw and deny relief.
Id. at 510-11 (citations omitted and formatting altered).
Here, PCRA Counsel filed his petition to withdraw indicating that he
reviewed the record and determined that there were no meritorious issues to
raise on appeal. Pet. to Withdraw, 6/9/22, at 2 (unpaginated). Further, PCRA
Counsel filed a copy of the letter that he sent to Appellant, which indicates
that he sent Appellant a copy of the Turner/Finley brief and advised
Appellant that he may immediately proceed pro se or retain private counsel
to raise any additional issues he believes should be brought to this Court’s
attention. Turner/Finley Brief at 9-10; see also Resp. to Order, 6/20/23.
On this record, we conclude that PCRA Counsel has met the technical
requirements of Turner and Finley, and we now proceed to address the
issues PCRA Counsel identified in the Turner/Finley brief. See Muzzy, 141
A.3d at 510-11.
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Pre-trial Motions
The first issues that PCRA Counsel identifies are Appellant’s claim that
trial counsel was ineffective for failing to file pre-trial motions, specifically a
motion to suppress and a Rule 600 motion to dismiss. Turner/Finley Brief
at 12-14. PCRA Counsel notes that Appellant abandoned this claim when he
filed his counseled, amended PCRA petition. Id. at 12.
Before we address the merits of this claim, we must determine whether
Appellant has preserved it for appeal. “[T]he applicability of waiver principles
. . . is a question of law, over which our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Barbour, 189 A.3d 944, 954
(Pa. 2018) (citations omitted).
When counsel files an amended PCRA petition, “the PCRA court is only
permitted to address issues raised in a counseled petition.” Commonwealth
v. Markowitz, 32 A.3d 706, 713 n.5 (Pa. Super. 2011) (citation omitted);
see also Commonwealth v. Ortiz, 3465 EDA 2018, 2020 WL 5908473, at
*4 (Pa. Super. filed Oct. 6, 2020) (unpublished mem.) (concluding that issues
which were included in the defendant’s initial pro se PCRA petition but were
omitted from his counseled amended PCRA petition were waived on appeal);8
accord Commonwealth v. Leaner, 202 A.3d 749, 765 n.3 (Pa. Super. 2019)
(holding that issues raised before the trial court but subsequently abandoned
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8 See generally Pa.R.A.P. 126(b) (noting that unpublished memorandum
decisions of the Superior Court filed after May 1, 2019, may be cited for their
persuasive value).
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at a later hearing are waived on appeal). Appellant abandoned his claim that
trial counsel was ineffective for failing to file pre-trial motions because he did
not include it in either his first or second counseled amended PCRA petition;
therefore, this issue is waived on appeal. See Markowitz, 32 A.3d at 713
n.5; Ortiz, at 2020 WL 5908473, at *4.
Guilty Plea
The next issue that PCRA Counsel identifies is Appellant’s claim that trial
counsel was ineffective in advising Appellant to plead guilty. Turner/Finley
Brief at 11-12, 14-16. Specifically, Appellant claims that trial counsel
erroneously advised him that he was subject to a mandatory minimum
sentence of two years’ incarceration for the contraband conspiracy count. Id.
at 15. PCRA Counsel further notes that the trial court imposed a sentence of
eighteen months to four years’ incarceration, which is in the mitigated range
of the sentencing guidelines for that count. Id. (citing N.T. Sentencing,
11/5/19, at 7).
In reviewing the denial of a PCRA petition, our standard of review
is limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal
error. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions.
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. The burden is on the defendant
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to prove all three of the following prongs: (1) the underlying claim
is of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
* * *
[A] failure to satisfy any prong of the ineffectiveness test requires
rejection of the claim of ineffectiveness.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered).
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 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.
Thus, to establish prejudice, the defendant must show that there
is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.
The reasonable probability test is not a stringent one; it merely
refers to a probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations
omitted and formatting altered).
Although not constitutionally mandated, a proper plea colloquy ensures
that a defendant’s guilty plea is truly knowing and voluntary.
Commonwealth v. Maddox, 300 A.2d 503, 504 (Pa. 1973). Further, a “valid
plea colloquy must delve into six areas: 1) the nature of the charges, 2) the
factual basis of the plea, 3) the right to a jury trial, 4) the presumption of
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innocence, 5) the sentencing ranges, and 6) the plea court’s power to deviate
from any recommended sentence.” Commonwealth v. Reid, 117 A.3d 777,
782 (Pa. Super. 2015) (citations omitted). “Furthermore, nothing in
[Pa.R.Crim.P. 590] precludes the supplementation of the oral colloquy by a
written colloquy that is read, completed, and signed by the defendant and
made a part of the plea proceedings.” Commonwealth v. Bedell, 954 A.2d
1209, 1212-13 (Pa. Super. 2008) (citation omitted); see also Pa.R.Crim.P.
590, cmt. Finally, it is well established that “[a] person who elects to plead
guilty is bound by the statements he makes in open court while under oath
and he may not later assert grounds for withdrawing the plea which contradict
the statements he made at his plea colloquy.” Commonwealth v. Pollard,
832 A.2d 517, 523 (Pa. Super. 2003) (citation omitted).
Here, the PCRA court explained:
Well, it seems to me that on its face from what I could see and
from what I have heard here, there’s no basis for a PCRA. It just
seems to me, [Appellant], that, number one, that two-year
mandatory minimum is a red herring because, in fact, you were
sentenced to the mitigated range, and if that were an error that
would be de minimis, if not non-existent, because you were
sentenced without regard to a mandatory minimum. And, frankly,
I think that [it] was in the pre-sentence report that there was no
mandatory minimum, so it was there before we got any further.
Second of all, [trial counsel], in fact, it might not be on the record
check, but, in fact, he had requested SIP, boot camp and RRRI at
the time of sentencing and that’s up to the state whether that’s
applicable or not. And it appears from the record, although I’m
not a hundred percent sure of it, I leave it up to the state because
. . . if they want to take [Appellant] into those kinds of programs,
I’m fine with it but if it’s prohibited by statute, it is prohibited by
statute.
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N.T. PCRA Hr’g at 24.
The record also reflects that at the plea hearing, Appellant confirmed
that he was aware of the maximum penalties for each offense, he understood
that the trial court could impose his sentences consecutively, and that there
was no agreement as to the length of his sentence. See N.T. Guilty Plea,
9/5/19, at 2-3; Written Guilty Plea Colloquy, 9/5/19, at 1, 3. Further,
Appellant specifically acknowledged during the plea colloquy that there was
no plea agreement, that the judge would determine the sentence, and that no
promises had been made in exchange for his guilty plea. See N.T. Guilty Plea
at 5; Written Guilty Plea Colloquy at 1-3. Neither the oral nor written plea
colloquies indicated that the trial court would make Appellant eligible to
participate in the boot camp and SIP programs as part of his sentence.
Additionally, the Commonwealth stated that Appellant would be subject
to a two-year mandatory minimum sentence for the contraband conspiracy
count. See N.T. Guilty Plea at 3; see also Written Guilty Plea Colloquy at 1.
Appellant stated that he understood the applicable mandatory minimum
sentence. See N.T. Guilty Plea at 4. The trial court did not impose any
mandatory minimum sentences. See N.T. Sentencing at 7. Trial counsel later
explained that the mandatory minimum sentence did not apply to Appellant
because he had been charged with conspiracy instead of the substantive
offense of furnishing contraband to a prison inmate. See N.T. PCRA Hr’g at
19.
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At the PCRA hearing, both Appellant and trial counsel testified that
Appellant suggested negotiating a plea agreement that would involve
Appellant’s contraband conspiracy charge and related charges against
Appellant’s mother. See id. at 5-6, 8, 15. Trial counsel explained that the
terms of the agreement included that Appellant would plead guilty to
contraband conspiracy and Appellant’s mother would plead guilty to a
misdemeanor and receive probation. See id. at 15. Appellant also testified
that he was originally told that his plea agreement would not involve any
mandatory minimum sentences. See id. at 8. Appellant did not state that if
not for trial counsel’s erroneous advice about a mandatory minimum sentence,
Appellant would not have pled guilty and instead gone to trial.
Appellant is bound by the statements that he made during his plea
colloquy. See Pollard, 832 A.2d at 523. Therefore, Appellant cannot now
claim that his decision to plead guilty was based on trial counsel’s assurances
that Appellant would be eligible to participate in the boot camp and SIP
programs. See id. Further, because Appellant did not state that but for trial
counsel’s advice regarding the inapplicable mandatory minimum sentence, he
would have gone to trial instead of pleading guilty, Appellant has failed to
establish prejudice. See Barndt, 74 A.3d at 192. On this record, we agree
with the PCRA court that Appellant’s guilty plea was knowing, voluntary, and
intelligent. See Reid, 117 A.3d at 782. Therefore, Appellant’s claim that trial
counsel was ineffective with respect to Appellant’s guilty plea is meritless and
no relief is due. See Barndt, 74 A.3d at 192; see also Sandusky, 203 A.3d
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at 1043-44. Accordingly, the PCRA court did not err in denying Appellant’s
PCRA petition.
Post-Sentence Motion and Direct Appeal
The final issue that PCRA Counsel identifies is Appellant’s claim that trial
counsel was ineffective because he failed to file any post-sentence motions or
a direct appeal. Turner/Finley Brief at 16-17.
Our Supreme Court has held that a PCRA court can reinstate a
defendant’s post-sentence rights nunc pro tunc if the defendant successfully
pleads and proves that he was deprived of the right to file and litigate post-
sentence motions as a result of counsel’s ineffectiveness. See
Commonwealth v. Liston, 977 A.2d 1089, 1094 n.9 (Pa. 2009). However,
“the failure to file post-sentence motions does not fall within the limited ambit
of situations where a defendant alleging ineffective assistance of counsel need
not prove prejudice to obtain relief.” Id. at 1092 (citation and footnote
omitted). To establish prejudice, the defendant must show that if counsel had
filed a post-sentence motion seeking reconsideration of sentence, it would
have “secured a reduction in the sentence.” Commonwealth v. Reaves,
923 A.2d 1119, 1132 (Pa. 2007). Lastly, counsel will not be deemed
ineffective for failing to file post-sentence motions where the defendant did
not request that counsel file any motions. See Commonwealth v. Cook,
547 A.2d 406, 408 (Pa. Super. 1988).
To establish that counsel was ineffective for failing to file a direct appeal,
the defendant must prove that he requested an appeal, and that counsel
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disregarded that request. See Commonwealth v. Ousley, 21 A.3d 1238,
1244 (Pa. Super. 2011). When counsel fails to file a requested appeal,
“counsel is per se ineffective as the defendant was left with the functional
equivalent of no counsel.” Markowitz, 32 A.3d at 715 (footnote omitted).
“To establish per se ineffectiveness, a defendant must still prove that he asked
counsel to file a direct appeal[,]” because counsel “is not required to file an
appeal that is not requested.” Id. at 715, 717 (citation omitted).
When a defendant did not explicitly instruct counsel to file a direct
appeal, counsel may still be found ineffective if counsel failed to consult with
the defendant about his appellate rights. See id. at 714, 716. However,
counsel has a constitutionally imposed duty to consult with a defendant “if a
rational defendant would want to appeal (for example, because there are
nonfrivolous grounds for appeal), or . . . that this particular defendant
reasonably demonstrated to counsel that he was interested in appealing.
Where a [defendant] can prove either factor, he establishes that his claim has
arguable merit.” Id. at 716 (citation omitted and formatting altered). To
establish prejudice, “a defendant must demonstrate that there is a reasonable
probability that, but for counsel’s deficient failure to consult with him about
an appeal, he would have timely appealed.” Commonwealth v. Touw, 781
A.2d 1250, 1254 (Pa. Super. 2001) (citation omitted). Additionally, “where a
petitioner can establish that but for counsel’s erroneous advice, he would have
filed a direct appeal, he is entitled to the reinstatement of his direct appeal
rights.” Markowitz, 32 A.3d at 717.
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Here, the PCRA court explained:
[T]he fact that [trial counsel] didn’t ask [sic] or file an appeal,
there’s no indication on the record here. Except [for Appellant’s]
comments asking for an appeal, [trial counsel] didn’t know that
[Appellant] wanted an appeal, and, frankly, it doesn’t appear that,
as stated on the record here today, there was any basis for an
appeal.
N.T. PCRA Hr’g at 25.
We add that at the PCRA hearing, Appellant testified that three days
after the sentencing hearing, he sent a letter to trial counsel asking him to file
post-sentence motions. Id. at 12-13. However, trial counsel testified that
after sentencing he did not discuss filing post-sentence motions nor a direct
appeal with Appellant. Id. at 20. The PCRA court credited trial counsel’s
testimony that he did not receive any requests from Appellant to file post-
sentence motions nor a direct appeal. Id. Trial counsel also explained that
the only correspondence from Appellant that he received which expressed
Appellant’s dissatisfaction with his sentence was a copy of a letter that
Appellant had sent to the trial court judge in March of 2022. Id. at 18.
On this record, we conclude that the PCRA court’s conclusions are
supported by the record and free of legal error. See Sandusky, 203 A.3d at
1043. Here, the PCRA court credited trial counsel’s testimony that he did not
receive any messages from Appellant indicating that Appellant wanted trial
counsel to file any post-sentence motions or a direct appeal during the appeal
period. See N.T. PCRA Hr’g at 25. Because the PCRA court’s credibility
determinations are supported by the record, they are binding on this Court.
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See Sandusky, 203 A.3d at 1043. On this record, Appellant has failed to
establish that he requested that trial counsel file post-sentence motions or a
direct appeal on Appellant’s behalf and that trial counsel failed to do so. See
Markowitz, 32 A.3d at 715; Cook, 547 A.2d at 408. Additionally, Appellant
has not shown that a rational defendant would want to appeal in these
circumstances or that Appellant reasonably demonstrated to trial counsel that
he was interested in appealing his sentence. See Markowitz, 32 A.3d at 716.
Therefore, there is no arguable merit to Appellant’s claim that trial counsel
was ineffective for failing to file post-sentence motions or a direct appeal.
For these reasons, we discern no error or abuse of discretion by the
PCRA court in denying Appellant’s petition. Additionally, our independent
review of the record has not revealed any other issues of merit. See Muzzy,
141 A.3d at 510-11. Therefore, we affirm the PCRA court’s order and grant
PCRA Counsel’s petition to withdraw.
Order affirmed. Petition to withdraw granted. Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/28/2023
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