Com. v. Baynes, D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID L. BAYNES :
:
Appellant : No. 761 WDA 2022
Appeal from the PCRA Order Entered October 7, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002773-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID L. BAYNES :
:
Appellant : No. 762 WDA 2022
Appeal from the PCRA Order Entered October 7, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000244-2014
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: OCTOBER 6, 2023
In these consolidated appeals,1 David L. Baynes appeals pro se from
the October 7, 2021 order dismissing his petition filed pursuant to the Post
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* Former Justice specially assigned to the Superior Court.
1 Appellant’s appeals at Nos. 761 WDA 2022 and 762 WDA 2022 were sua
sponte consolidated by this Court on September 22, 2022.
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Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm.
The underlying facts of this case are not relevant to our disposition and
need not be reiterated here. The PCRA court summarized the procedural
history of this case as follows:
On November 5, 2014, a jury convicted Appellant of:
rape; involuntary deviate sexual intercourse (“IDSI”);
sexual assault; indecent assault; indecent exposure;
and simple assault. The presiding trial judge, the
Honorable Donna Jo McDaniel, sentenced Appellant on
February 3, 2015 to an aggregate sentence of 25-50
years of incarceration. As a result of an appeal, the
convictions were affirmed but the case was remanded
to the [trial] court for resentencing, after it was
determined there were errors in the application of the
merger doctrine and a failure to impose the second-
strike provision. [See Commonwealth v. Baynes,
156 A.3d 332 (Pa.Super. 2016) (unpublished
memorandum), appeal denied, 165 A.3d 875 (Pa.
2017).]
On June 8, 2017, Appellant was resentenced by Judge
McDaniel to an aggregate sentence of 23½ to 47 years
of incarceration and was classified as a sexually
violent predator (SVP). This sentence was also
appealed, resulting in this Court again vacating
Appellant’s sentence and remanding for a new
sentencing hearing. It was determined the sentence
imposed at the conviction for indecent assault was
illegal. Additionally, the [trial] court again failed to
apply the Section 9718.2 second-strike mandatory
minimum sentence of 25 years at the convictions for
rape or IDSI as instructed. [See Commonwealth v.
Baynes, 209 A.3d 531 (Pa.Super. 2019) (unpublished
memorandum).]
[This Court subsequently vacated Appellant’s SVP
designation as it was no longer permitted under
current law. Id.] Upon remand, Appellant’s cases
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were reassigned to Judge Mark Tranquilli and a
resentencing hearing was conducted on July 12, 2019.
Consistent with the opinion and directive of the
Superior Court, the trial court imposed a mandatory
minimum sentence of 25 to 50 years of incarceration
at both Count 1 and 2; Rape and IDSI respectively.
These terms were run concurrently, followed by 4
years of probation imposed at Count 5 and 6; indecent
exposure and simple assault.
In response to a petition filed with the Court on
September 3, 2019, counsel was appointed to
represent Appellant for the purpose of a [PCRA]
petition. On August 26, 2020 counsel filed a no merit
letter. On September 17, 2020, this Court issued a
[Pa.R.Crim.P. 907] notice of intent to dismiss and
Appellant filed an objection on October 6, 2020.
[PCRA counsel was granted permission to withdraw on
September 17, 2020].
PCRA court opinion, 11/14/22 at 2-4 (citations, footnotes and extraneous
capitalization omitted).
On October 7, 2021, the PCRA court entered an order denying
Appellant’s PCRA petition. Thereafter, on February 1, 2022, Appellant filed a
second PCRA petition, alleging he never received timely notice of the dismissal
of his first PCRA petition due to a mailing issue at SCI Benner-Township.
Accordingly, Appellant requested reinstatement of his appellate rights;
permission to file a new petition; an evidentiary hearing; and the appointment
of counsel. On June 6, 2022, the PCRA court granted Appellant’s petition in
part by reinstating his appellate rights relative to the October 7, 2021 order,
but denying all other relief.
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On June 29, 2022, Appellant filed two separate pro se appeals docketed
at Nos. 761 WDA 2022 and 762 WDA 2022.2 On July 9, 2022, the PCRA court
ordered Appellant to file a concise statement of errors complained of on
appeal, in accordance with Pa.R.A.P. 1925(b). Appellant filed his Rule 1925(b)
statement on July 21, 2022, and the PCRA court filed its Rule 1925(a) opinion
on November 14, 2022.
Appellant raises the following issues for our review:
1. Did the PCRA Court err when it dismissed
Appellant’s pro se PCRA petition without a
hearing when [Appellant] set forth facts, both of
record and off record which, if proven would
have entitled him to relief? More specifically:
A. [Whether Appellant] was abandoned by
both direct appeal counsel and first PCRA
counsel when [Appellant] was
constructively denied counsel at a critical
stage when direct review counsel failed to
file post-sentencing motions and a
requested direct appeal, and first PCRA
counsel failed to identify the claim[?]
B. Was [Appellant] unlawfully and
prejudicially deprived of his established
6th amendment right to effective
assistance of counsel in filing post-
sentence motions and direct appeal when
it was by counsel’s specific per se errors
which caused the loss and this was
[Appellant’s] first opportunity to raise and
preserve the claim?
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2 Appellant also filed an appeal from the June 6, 2022 order that reinstated
his appellate rights; this appeal was docketed at No. 763 WDA 2022 and was
quashed on October 7, 2022.
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2. [Whether] Appellant is actively serving an illegal
sentence as the Court improperly construed a
prior conviction as a second strike when such
did not qualify and/or the Commonwealth
violated the terms of the contract when in fact,
Appellant originally pled guilty to a second
degree misdemeanor of voluntary deviate
sexual intercourse ultimately upgraded
unlawfully to a second degree felony of sexual
assault[?]
3. Was direct appeal counsel and first PCRA
counsel ineffective in failing to raise these
claims[?]
Appellant’s brief at 3 (extraneous capitalization omitted).
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). “This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted).
This court has continually recognized that there is no absolute right to
an evidentiary hearing. Commonwealth v. Hart, 911 A.2d 939, 941
(Pa.Super. 2006) (citation omitted). When the PCRA court denies a petition
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without an evidentiary hearing, as is the case here, we “examine each issue
raised in the PCRA petition in light of the record certified before it in order to
determine if the PCRA court erred in its determination that there were no
genuine issues of material fact in controversy and in denying relief without
conducting an evidentiary hearing.” Commonwealth v. Khalifah, 852 A.2d
1238, 1240 (Pa.Super. 2004). “It is within the PCRA court’s discretion to
decline to hold a hearing if the petitioner’s claim is patently frivolous and has
no support either in the record or other evidence.” Commonwealth v. Wah,
42 A.3d 335, 338 (Pa.Super. 2012) (citations omitted).
The crux of Appellant’s first claim is that an evidentiary hearing was
warranted in this matter because his direct appeal counsel, Suzanne Swan,
Esq. (“Attorney Swan”) was ineffective for failing to file post-sentence motions
and direct appeal challenging his July 12, 2019 judgment of sentence.
Appellant’s brief at 10, 12. Appellant further contends that his PCRA counsel
was ineffective in failing to raise this issue on collateral review. Id. at 30. We
disagree.
To prevail on a claim of ineffective assistance of counsel under the PCRA,
a petitioner must establish the following three factors: “first[,] the underlying
claim has arguable merit; second, that counsel had no reasonable basis for
his action or inaction; and third, that Appellant was prejudiced.”
Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014)
(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014). “In order to
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meet the prejudice prong of the ineffectiveness standard, a defendant must
show that there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Commonwealth v. Reed, 42 A.3d 314, 319 (Pa.Super. 2012) (citations
omitted), appeal denied, 114 A.3d 416 (Pa. 2015).
[A] PCRA petitioner will be granted relief only when he
proves, by a preponderance of the evidence, that his
conviction or sentence resulted from the [i]neffective
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.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation
marks omitted; some brackets in original), citing 42 Pa.C.S.A.
§ 9543(a)(2)(ii).
“[C]ounsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d
1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487(Pa. 2011). “If a petitioner fails to prove any of these prongs, his claim fails.”
Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).
Upon review, we find that Appellant’s ineffectiveness claim fails because
he failed to satisfy the first and third prongs of the aforementioned test;
namely, that his claim had arguable merit and that he suffered prejudice as a
result of Attorney Swan’s purported inaction.
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As recognized by the PCRA court, Attorney Swan represented Appellant
during both of his prior direct appeals, and these appeals were successful and
resulted in a remand for resentencing. See Baynes, 156 A.3d 332 (Pa.Super.
2016); Baynes, 209 A.3d 531 (Pa.Super. 2019).
The record reflects that at the July 12, 2019 hearing, the trial court
properly resentenced Appellant in accordance with this Court’s instructions set
forth in its January 25, 2019 memorandum. In doing so, the trial court
specifically corrected the error in Appellant’s prior sentence. The Baynes
Court explained as follows:
Here, prior to Baynes’ original sentencing hearing, the
Commonwealth filed a notice of its intention to invoke
the mandatory minimum sentence of 25 years’
imprisonment set forth in [42 Pa.C.S.A.
§ 9718.2(a)(1)],[ ] based upon Baynes’ prior
3
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3 Section 9718.2, Sentences for sexual offenders, provides in relevant
part, as follows:
(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this
Commonwealth of an offense set forth in section 9799.14
(relating to sexual offenses and tier system) shall, if at the
time of the commission of the current offense the person
had previously been convicted of an offense set forth in
section 9799.14 or an equivalent crime under the laws of
this Commonwealth in effect at the time of the commission
of that offense or an equivalent crime in another jurisdiction,
be sentenced to a minimum sentence of at least 25 years of
total confinement, notwithstanding any other provision of
this title or other statute to the contrary. Upon such
conviction, the court shall give the person oral and written
notice of the penalties under paragraph (2) for a third
(Footnote Continued Next Page)
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conviction of sexual assault. Although the court
imposed an aggregate minimum term of 25 years’
imprisonment, it did not impose the requisite
mandatory minimum sentence. See Baynes, supra,
156 A.3d 332 (unpublished memorandum at *5).
Consequently, the panel that considered Baynes’
direct appeal vacated the judgment of sentence and
remanded the case to the trial court to, inter alia,
“properly apply ... the second-strike provision of
Section 9718.2(a)(1), which [was] not satisfied by the
aggregate sentence[.]” Id. (unpublished
memorandum at *6). Nevertheless, upon remand,
the trial court declined to impose the mandatory
minimum term set forth in Section 9718.2(a)(1),
instead choosing to impose consecutive sentences on
several distinct convictions. Accordingly, we are
compelled to vacate Baynes’ judgment of sentence on
this basis as well, and remand to the trial court to
apply the second-strike provision of Section
9718.2(a)(1).
See Baynes, 209 A.3d 531 (unpublished memorandum at *4) (footnote
omitted); see also notes of testimony, 7/12/19 at 14-15.
Instantly, Appellant has failed to establish that a meritorious sentencing
issue existed to support an appeal. Accordingly, we find that there is no
arguable merit to Appellant’s claim that Attorney Swan was ineffective for
failing to lodge a direct appeal on this basis, nor can Appellant demonstrate
any prejudice as a result of Attorney Swan’s decision. See e.g.,
Commonwealth v. Green, 168 A.3d 173, 179 (Pa.Super. 2017) (stating,
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conviction. Failure to provide such notice shall not render
the offender ineligible to be sentenced under paragraph (2).
42 Pa.C.S.A. § 9718.2(a)(1).
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“[t]he prejudice inquiry is satisfied if Appellant demonstrates a nonfrivolous
issue for appeal”), appeal denied, 183 A.3d 340 (Pa. 2018). Likewise, PCRA
counsel cannot be found ineffective for failing to raise this meritless issue on
collateral review. See Commonwealth v. Johnson, 815 A.2d 563, 590 (Pa.
2002) (stating, “[c]ounsel will not be deemed ineffective for failing to raise a
claim that has no merit.” (citation omitted)).
Appellant next argues that Attorney Swan effectively abandoned him by
failing to consult with him about his direct appeal. Appellant’s brief at 12.
This claim is belied by the record.
At the July 12, 2019 resentencing hearing, the court explicitly
questioned Appellant as to whether he had discussed his post-sentence and
appellate rights with Attorney Swan, and Appellant responded in the
affirmative:
THE COURT: [S]ir, you have the full benefit of all your
appellate rights. You have 30 days where you could
take an appeal to what happened here today. Have
you discussed your post-sentencing and appeal rights
with [Attorney] Swan?
[Appellant]: Briefly.
THE COURT: Do you have a present understanding
that you have a right to appeal to the Superior Court
but that the clock begins to tick today?
[Appellant]: Oh, yes, I do understand that part.
Notes of testimony, 7/12/19 at 15-16.
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Based on the foregoing, we find that Appellant’s second claim is also
devoid of arguable merit. See Charleston, 94 A.3d at 1020.
In his final claim, Appellant contends that the 25 to 50 year sentence he
is currently serving is illegal because the trial court improperly construed his
prior conviction for voluntary deviate sexual intercourse, 18 Pa.C.S.A. § 3124,
as a second strike for purposes of sentencing under Section 9718.2(a)(1) and
the Sex Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A.
§ 9799.10-9799.42. Appellant’s brief at 19. For the following reasons, we
disagree.
Generally, “[i]ssues concerning the legality of sentence are cognizable
under the PCRA.” Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super.
2004) (citation omitted); see also 42 Pa.C.S.A. § 9542 (stating, “[t]his
subchapter provides for an action by which … persons serving illegal sentences
may obtain collateral relief.”). A challenge to the legality of a sentence
“presents pure question of law. Our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Succi, 173 A.3d 269, 284
(Pa.Super. 2017) (citations omitted), appeal denied, 188 A.3d 1121 (Pa.
2018).
Here, the record reflects that on March 2, 1998, Appellant entered a
plea of nolo contendere to three counts of what the docket sheet at CP-02-
CR-0006123-1997 designated as “voluntary deviate sexual intercourse,” 18
Pa.C.S.A. § 3124, for offenses that occurred on May 6, 1996. See Appellant’s
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brief at Exhibit C. However, as Appellant plainly acknowledges in his brief,
see id. at 19., at the time Appellant committed these offenses in May 1996,
the General Assembly had already repealed Section 3124 on March 31, 1995
and replaced it with Section 3124.1, renamed “sexual assault.” See 1995,
March 31, P.L. 985, No. 10 (Spec. Sess. No. 1), § 7. Moreover, Section 3124.1
was the section that was in effect at the time Appellant entered his nolo
contendere pleas in March 1998.
As it is evident that the charges on the docket sheet appear to have
been erroneously labeled as Section 3124 instead of Section 3124.1, the
section in effect at the time, Appellant’s conviction qualifies as a Tier III sexual
offense to warrant the imposition of a second strike sentence. See 42
Pa.C.S.A. § 9799.14(d)(5). Accordingly, Appellant’s final claim must fail.
For all the foregoing reasons, we discern no error on the part of the
PCRA court in dismissing Appellant’s petition without an evidentiary hearing
and affirm its October 7, 2021 order.
Order affirmed.
P.J. Panella joins.
Judge Olson concurs in the result.
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DATE: 10/6/2023
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