Com. v. Cool, J.

J-S60016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEREMY ALLEN COOL :
:
Appellant : No. 1926 WDA 2016
Appeal from the PCRA Order November 18, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002709-2012
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 22, 2017
Appellant, Jeremy Allen Cool, seeks review of the Order denying his
Petition filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-46. We affirm the Order, but remand for further proceedings in
light of Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (OAJC).
On July 17, 2013, a jury found Appellant guilty of eleven counts of
sexual offenses he committed against two then-minor victims over a five-
year period, from 1992 to 1997, including Involuntary Deviant Sexual
Intercourse (“IDSI”), Indecent Assault, and Rape. On October 23, 2013, the
court sentenced Appellant within the standard range of the sentencing
guidelines to an aggregate term of 22 to 44 years’ incarceration. The court
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* Former Justice specially assigned to the Superior Court.
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noted on the sentencing order that Appellant “was NOT found to be a SVP—
Must register for Lifetime.” Sentencing Order, dated 10/23/13.1
This Court affirmed the Judgment of Sentence and our Supreme Court
denied allowance of appeal. See Commonwealth v. Cool, 1898 WDA 2013
(Pa. Super. Filed Nov. 14, 2014) (unpublished memorandum), appeal
denied, 582 WAL 2014 (Pa. filed June 3, 2015).
On May 26, 2016, Appellant filed a pro se PCRA Petition asserting
ineffective assistance of trial and appellate counsel and challenging the
legality of his sentence pursuant to Alleyne v. United States, 133 S. Ct.
2151 (2013).2 On August 26, 2016, the court appointed William J.
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1 At the sentencing hearing, the prosecutor informed Appellant that due to
the nature of his violations, he must register for his lifetime following his
release from incarceration “pursuant to Megan’s Law,” and detailed the
requirements of that duty. N.T. Sentencing, 10/23/13, at 6-8. Appellant
acknowledged his receipt and understanding of those requirements with
written signature. The court filed a separate Order on October 23, 2013,
ordering that Appellant not be classified as a sexually violent predator.
2 Appellant raised the following issues in his PCRA Petition: (1) ineffective
assistance of trial counsel for (a) failing to object when the trial court
referred to “victims” instead of “alleged victims” when charging the jury; (b)
failing to object to the trial court’s lack of clarity in instructing the jury on
the elements of IDSI and Rape of a child; (c) failure to object to the
imposition of 4 mandatory minimum sentences on IDSI and Rape convictions
in light of Alleyne; (2) ineffective assistance of trial and appellate counsel
for failing to challenge the trial court’s ruling that it had jurisdiction due to
the running of the statute of limitations on the offenses of Indecent Assault,
Corruption of Minors, and Endangering the Welfare of a Child, with respect
to one victim, claiming that the statute of limitations expired when the
victim turned 20 years old, which had occurred eight years before the filing
of the charges.
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Hathaway, Esq., to represent Appellant and provided him 30 days to file an
amended/supplemental PCRA petition.3 By letter dated September 19,
2016, Appellant requested Mr. Hathaway to request an extension to file an
amended Petition because he had other issues he wished to raise in an
amended PCRA Petition. On September 26, 2016, counsel filed a Petition
for Leave to Withdraw and a “no-merit” letter pursuant to Commonwealth
v. Turner, 944 A.2d 927 (Pa. 1988), and Commonwealth v. Friend, 896
A.2d 607 (Pa. Super. 2006), abrogated in part on other grounds,
Commonwealth v. Pitts, 981 A.2d 875, 879 (Pa. 2009).4
On October 18, 2016, the court filed an Order granting counsel’s
withdrawal request. Appellant, now pro se, did not seek to file an amended
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3 On June 24, 2016, the court had appointed the Erie County Public
Defender’s Office to represent Appellant and directed that an amended PCRA
Petition be filed within 30 days, i.e., by July 25, 2016. Appointed counsel
received a letter from Appellant on July 15, 2016, expressing his concern
regarding a conflict of interest because the attorney who represented him at
his preliminary hearing and throughout the pre-trial phase of the case also
worked at the Erie County Public Defender’s Office. Counsel filed a Motion to
Withdraw on July 19, 2016, which the court granted on August 26, 2016, in
the same order directing the appointment of Mr. Hathaway.
4 In the Friend letter, counsel informed Appellant that “in the event that the
Court grants the application of counsel to withdraw, he has the right to
proceed pro se or with the assistance of privately retained counsel.” See
Letter, dated September 26, 2016, from William J. Hathaway, Esq., to
Appellant. In Commonwealth v. Pitts, 981 A.2d 875, 879 (Pa. 2009), the
Pennsylvania Supreme Court opined that “[t]o the extent Friend stands for
the proposition that an appellate court may sua sponte review the sufficiency
of a no-merit letter when the defendant has not raised such issue, we
disavow such holding.”
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PCRA Petition or otherwise file any document raising any additional issues,
despite being informed by counsel of his ability to do so in the Friend letter.
Also on October 18, 2016, the PCRA court filed a one-page Opinion
and Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907 rejecting
Appellant’s ineffectiveness claims and jurisdictional challenges, and noting
that Alleyne was inapplicable because the court had sentenced Appellant
without reference to any mandatory minimums and within the standard
range of the sentencing guidelines. See Opinion, dated 10/18/16.
Appellant responded to the court’s Rule 907 Notice by filing a Notice of
Appeal, which the Erie County Clerk of Courts rejected because Appellant
failed to indicate from what he was appealing. On November 18, 2016, the
PCRA Court denied Appellant’s PCRA Petition.
Appellant filed a timely pro se Notice of Appeal. The PCRA Court did
not order Appellant to file a Pa.R.A.P. 1925(b) Statement. On January 9,
2017, the court filed a one-sentence “Memorandum Opinion” relying on its
October 18, 2016 Opinion.
In his Brief, Appellant presents the following questions for our review:
I. Was sentencing and appellate counsel ineffective in failing to
adequately raise and litigate challenges to the mandatory
minimum that were unconstitutional?
II. Was trial counsel ineffective in failing to adequately raise and
litigate challenges to the numerous deficient jury instructions
that were charged to the jury?
III. Was trial counsel ineffective in failing to adequately raise and
litigate challenges to the statute of limitations?
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IV. Was trial, sentencing[,] and appellate counsel ineffective in
failing to raise and litigate challenges to the Erie Police
Department’s lack of subject matter jurisdiction over several of
the charges?
V. Was trial, sentencing[,] and appellate counsel ineffective in
failing to raise and litigate challenges to the numerous Brady
violations throughout the proceedings against the Appellant?
VI. Was PCRA Counsel ineffective in failing to thoroughly review the
record and have meaningful contact with the Appellant?
VII. Was Appellant denied due process of law due to the cumulative
ineffective assistance of counsel by his trial, sentencing,
appellate and PCRA Counsel?
VIII. Was Appellant deprived of a fair and just review of his “complete
case file” in violation of Brady and his constitutional rights to the
same?
Appellant’s Brief at 4.5
On August 25, 2017, Appellant filed an Application for Post-Submission
Communication, raising a challenge to the legality of his sentence based on
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (OAJC).6 On
September 18, 2017, this Court granted the Application and directed the
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5 In his PCRA Petition, Appellant did not assert any ineffectiveness claims
with respect to alleged Brady violations or the Erie Police Department’s
jurisdiction to arrest him. Appellant has, thus, waived issues IV, V, and VIII.
Pa.R.A.P. 302(a).
6 On July 19, 2017, the Pennsylvania Supreme Court filed its decision in
Muniz holding that the enhanced registration requirements of the Sexual
Offender Registration and Notification Act (“SORNA”) are punitive and,
therefore, applying SORNA retroactively is a violation of the ex post facto
clauses of the U.S. Constitution and Pennsylvania Constitutions. 164 A.3d at
1223.
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parties to file post-submission communications to address the applicability of
Muniz, supra, to the instant case.
Appellant responded that because the crimes at issue here occurred in
1992 through 1997, the application of SORNA’s registration requirements,
enacted in 2012, violated the ex post facto clause of the state constitution.
He further avers that because the Muniz court found the sex offender
registration requirements to be punitive and their application, thus, violative
of the ex post facto clause, the application of any of the prior Megan’s Law
registration requirements would be improper. The Commonwealth
responded by requesting this Court to remand this issue to the PCRA court
for the appointment of counsel and consideration of the applicability of
Muniz to the facts of this case.
Muniz raises a question regarding the legality of Appellant’s sentence.
This court may review issues regarding the legality of sentence sua sponte.
Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa. Super. 2001). The
applicability of Muniz to Appellant’s case appears to be meritorious on its
face. Accordingly, we remand to the PCRA court for the appointment of new
counsel and consideration of the applicability of Muniz to Appellant’s
sentence. However, we affirm the PCRA court’s Order with respect to the
other issues raised by Appellant in his PCRA Petition.
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STANDARD AND SCOPE OF REVIEW
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its order is otherwise
free of legal error. 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 supports them. Commonwealth v. Boyd, 923 A.2d 513, 515
(Pa. Super. 2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).
INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant’s issues each challenge the effective assistance of trial,
appellate, and PCRA counsel. The law presumes counsel has rendered
effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.
Super. 2010). The burden of demonstrating ineffectiveness rests on
Appellant. Id. To satisfy this burden, Appellant must plead and prove by a
preponderance of the evidence that: “(1) his underlying claim is of arguable
merit; (2) the particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests; and, (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the challenged proceeding would have been different.” Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the
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test will result in rejection of the appellant’s ineffective assistance of counsel
claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
With respect to layered ineffectiveness claims, the Pennsylvania
Supreme Court has provided the following guidance:
[I]n order for a petitioner to properly raise and prevail on a
layered ineffectiveness claim, sufficient to warrant relief if
meritorious, he must plead, present, and prove the
ineffectiveness of Counsel 2 (appellate counsel), which as we
have seen, necessarily reaches back to the actions of Counsel 1
(trial counsel). To preserve (plead and present) a claim that
Counsel 2 was ineffective in our hypothetical situation, the
petitioner must: (1) plead, in his PCRA petition, that Counsel 2
was ineffective for failing to allege that Counsel 1 was ineffective
for not [taking the suggested actions], see Commonwealth v.
Marrero, 748 A.2d 202, 203, n. 1 (2000); and (2) present
argument on, i.e., develop, each prong of the Pierce test as to
Counsel 2's representation, in his briefs or other court
memoranda.
Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003) (emphasis in
original).
“Where, however, the petitioner fails to plead, present[,] and prove all
three prongs of the Pierce test regarding the underlying issue of trial
counsel's ineffectiveness, … [a] petitioner is unable to establish the requisite
arguable merit prong of his layered claim of appellate counsel's
ineffectiveness.” Commonwealth v. Reyes, 870 A.2d 888, 897 (Pa. 2005)
(citation omitted).
Additionally, it is well-settled that an appellant may not raise
challenges to PCRA counsel’s effectiveness for the first time on appeal. See
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Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (citing
cases).
We address each of Appellant’s challenges underlying his
ineffectiveness claims seriatum.
Mandatory Minimum Sentences
Appellant first claims that trial counsel and appellate counsel provided
ineffective assistance because neither of them raised an Alleyne7 claim to
challenge the trial court’s alleged imposition of mandatory minimum
sentences. This claim is without factual basis and is, thus, meritless.
Although the Commonwealth had filed a “Notice of Intent to Seek
Mandatory Minimum Sentence,” our review of the sentencing transcript
indicates that at no time did the sentencing court refer to any mandatory
minimum sentences. Rather, after noting its review of, inter alia, the
Pennsylvania Sentencing Code, the presentence report, and the
Pennsylvania guidelines on sentencing, the court stated:
Having considered all of the circumstances, … [t]he sentences
will be from the high end of the standard range of the guidelines,
weighing the defendant’s offenses, the course of conduct, the
abuse of trust and responsibility, and the impact on the victims
against what the defendant has accomplished, the reputation he
currently enjoys, and the fact that he has no prior criminal
history of any significance.
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7 The Alleyne Court held that, other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
minimum must be submitted to a jury and proved beyond a reasonable
doubt. Id., 133 S.Ct. at 2160-61.
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N.T. Sentencing, 10/23/13, at 25.
The court sentenced Appellant within the standard range of the
guidelines and without reference to mandatory minimum sentences.
Because there is no merit to his underlying claim, Appellant has failed to
prove the first prong of this ineffectiveness claim and it, thus, fails.
Jury Instructions
Appellant next asserts that trial counsel provided ineffective assistance
of counsel because he failed “to object to incorrect and/or deficient jury
instructions.” Appellant’s Brief at 12. He asserts that the “trial court gave
an inadequate and inaccurate instruction” by “omit[ting] parts or adding
words to the jury’s instruction that thus chang[ed] the meaning of the jury
instruction.” Id. Appellant fails to indicate the source of the predicate
instruction from which the trial court omitted parts or to which the court
added. Rather, he cherry-picks certain instructions that were given, and
sets forth incomplete sentences and phrases that the court should have
provided. See id. at 12-14.8 Appellant has not developed this claim so as
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8 For example, Appellant avers that the trial court “did not charge the jury
with the legal definition of what sexual intercourse was. The only thing that
the trial court stated to the jury was what allegedly the Appellant was
alleged of doing.” Appellant’s Brief at 13, citing N.T. – Trial, 7/17/13 at 85.
The court properly charged the jury with the meaning of sexual intercourse
as it related to the evidence that was presented in this case. See id. (court
instructing that “[a] person commits rape of a child when the person
engages in sexual intercourse with a child who is less than 13 years of age.
(Footnote Continued Next Page)
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to enable this Court to provide meaningful review. Accordingly, this
challenge is waived. See Commonwealth v. Clayton, 816 A.2d 217, 221
(Pa. 2002) (OAJC) (“[I]t is a well-settled principle of appellate jurisprudence
that undeveloped claims are waived and unreviewable on appeal.” (citation
omitted)); Commonwealth v. Williams, 732 A.2d 1167, 1175 (Pa. 1999)
(recognizing “unavailability of relief based upon undeveloped claims for
which insufficient arguments are presented on appeal”); Pa.R.A.P. 2119
(setting forth briefing requirements).
Even if the claim were not waived, we would conclude it is without
merit. Our standard of review in assessing a trial court's jury instructions is
as follows:
[W]hen evaluating the propriety of jury instructions, this Court
will look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that, it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury
for its consideration. Only where there is an abuse of discretion
or an inaccurate statement of the law is there reversible error.
Commonwealth v. Kerrigan, 920 A.2d 190, 198 (Pa.Super.2007) (internal
citations, quotation marks, and brackets omitted).
We have reviewed the jury instructions that the trial court provided
and conclude that the court “clearly, adequately, and accurately presented”
(Footnote Continued) _______________________
Sexual intercourse as to this case occurs if a man’s penis penetrates the
anus of the child.”).
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the applicable law. The trial court did not abuse its discretion. Because
Appellant’s underlying claim has no merit, Appellant’s ineffectiveness claims
fails.
Failure to Litigate Statute of Limitations
Appellant next asserts that the statute of limitations had run on three
of the offenses charged in connection with one of his two victims, and trial
counsel was ineffective for failing to raise this issue. He avers that pursuant
to 42 Pa.C.S. §5552, the Commonwealth had until July 3, 2004, when the
victim became 20 years old, to file the charges against him, and the filing on
August 6, 2012, was, thus, 8 years late. See Appellant’s Brief at 15. He
also avers that the application of new legislation extending the limitations
period violated ex post facto laws, and “trial counsels [sic] failure to raise an
objection to and litigate challenge to the Statute of Limitations issue shows
arguable merit and satisfied the first prong of the Peirce [sic] test.”
Appellant’s Brief at 16. This claim has no merit.
Contrary to Appellant’s contention, counsel raised the same issues
Appellant asserts here pertaining to the Statute of Limitations in an Omnibus
Pretrial Motion filed January 11, 2013. The Commonwealth filed a
responding Brief and, at the trial court’s behest, Appellant’s counsel filed a
supporting Brief responding to the Commonwealth’s arguments. On
February 22, 2013, the trial court entered an Order denying the Motion.
After noting its review of Appellant Omnibus Pre-trial Motion, the
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Commonwealth’s Response to the Motion, and Appellant’s Brief in Support of
the Motion, the court relied on Commonwealth v. Johnson, 553 A.2d 897
(Pa. 1989) and Commonwealth v. Harvey, 542 A.2d 1027 (Pa. Super.
1988) to support its denial. See Order, dated 2/22/13.
Because trial counsel fully litigated Appellant’s challenges to the
Statutes of Limitations, there is absolutely no merit to Appellant’s assertion
that counsel failed to do so. Accordingly, this claim fails.
PCRA Counsel’s Ineffectiveness
In his next issue, Appellant alleges that PCRA counsel provided
ineffective assistance because Appellant did not have “meaningful contact”
with him and “could not have performed the mandatory review of Appellants
[sic] ‘complete case file’” because in response to an order that PCRA Counsel
forward the “complete case file,” counsel forwarded only 35 single-sided
pages of documents. Appellant’s Brief at 21-22. Appellant also asserts that
he was prejudiced by PCRA counsel’s actions because he “was not … able to
raise all of the issues of Ineffective Assistance of Counsel” he wished to
raise. Id. at 22.
As noted above, claims of PCRA counsel’s ineffectiveness cannot be
raised for the first time on appeal. Henkel, supra, at 20. Rather, a
petitioner must raise such claims in a serial PCRA petition or in response to
the PCRA court’s Rule 907 Notice to Dismiss. Id. at 29. Petitioner did not
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file a response to the court’s Rule 907 Notice to Dismiss. Accordingly, this
claim is unreviewable.
Cumulative errors of trial, appellate, and PCRA counsel
In his final issue, Appellant avers that he was denied his constitutional
right to effective assistance of counsel “throughout all of the proceedings,”
and notes that “if multiple instances of deficient performances are found, the
assessment of prejudice properly may be premised upon cumulation.”
Appellants Brief at 22-23. Having found no merit to each of the issues
underlying Appellant’s ineffectiveness claims, we cannot find cumulative
error where Appellant has failed to prove singular error. Accordingly,
Appellant’s final claim is without merit.
Order affirmed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judge Olson concurs in result.
President Judge Emeritus Stevens concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2017
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