Com. v. McLaughlin, M.

J-S68025-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL McLAUGHLIN, :
:
Appellant : No. 1965 EDA 2014
Appeal from the PCRA Order May 29, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0303571-2006
BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 08, 2015
Appellant, Michael McLaughlin (“McLaughlin”), appeals from the order
entered on May 29, 2014 by the Court of Common Pleas of Philadelphia
County, Criminal Division, dismissing his petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm.
The PCRA court summarized the relevant facts and procedural history
of this case as follows:
In 2005, [McLaughlin] was charged with the
stalking and related offenses of his ex-girlfriend,
Audria Leone. [McLaughlin] was provided the
assistance of various court-appointed attorneys,
including the Defender Association, Bruce Wolf,
Michael F. Medway, Max G. Kramer, and Steven G.
Laver. [McLaughlin]’s case was originally assigned
to Judge Amanda Cooperman for trial. Despite the
persistence of Judge Cooperman that [McLaughlin]
should be represented by counsel, [McLaughlin]
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insisted upon proceeding with his trial pro se.
[McLaughlin] repeatedly referenced his right to self-
representation, citing Faretta v. California, 422
U.S. 806 (1975), and requested a waiver of counsel
colloquy.
In a hearing on August 11, 2006, Judge
Cooperman allegedly performed a waiver of counsel
colloquy after which she found [McLaughlin]’s waiver
of counsel knowing, intelligent, and voluntary. Mr.
Laver was the attorney of record at the time of the
alleged colloquy and was [allegedly] appointed by
Judge Cooperman as standby trial counsel for
[McLaughlin] on that date. However, for some
unknown reason, there was no record preserved of
the hearing at which the colloquy supposedly took
place. Furthermore, the only action reflected on the
docket for that date was the ordering of a mental
health evaluation of [McLaughlin].
Judge Cooperman ultimately recused herself from
[McLaughlin]’s case due to his repeated and
inappropriate ex parte communications with her
staff. [McLaughlin]’s case was reassigned to Judge
Berry, who referenced Judge Cooperman’s colloquy
on the record at the first listing before him. Judge
Berry also completed a partial waiver colloquy of
[McLaughlin], during which [McLaughlin] told Judge
Berry that he was familiar with the court proceedings
and that he had represented himself in two previous
cases. Judge Berry ultimately permitted
[McLaughlin] to proceed at trial pro se with the
assistance of newly-appointed standby counsel,
Kevin Mincey.
After a four[-]day jury trial, [McLaughlin] was
found guilty of stalking on September 4, 2007. On
October 30, 2007, Judge Berry sentenced
[McLaughlin] to two to four years of incarceration
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followed by three years of probation.[1] At the
sentencing hearing, Judge Berry appointed Mr.
Mincey as counsel. At this hearing, immediately
following sentencing, [McLaughlin] told Judge Berry
that he “was never properly colloquied.”
[McLaughlin] did not file any post-sentence motions.
On November 30, 2007, [McLaughlin], through
counsel, filed a notice of appeal to the Pennsylvania
Superior Court, one day late. On March 17, 2009,
the Superior Court quashed [McLaughlin]’s first
appeal as untimely filed. On April 1, 2009,
[McLaughlin] filed his first PCRA petition, with the
assistance of counsel, Davis S. Winston.
[McLaughlin]’s first PCRA petition requested relief on
the basis of ineffective assistance of counsel in that
Mr. Mincey’s filing of [McLaughlin]’s [n]otice of
[a]ppeal was untimely. In this petition, Mr. Winston
only requested the reinstatement of [McLaughlin]’s
right to file a direct appeal, not the right to file post-
sentence motions. On October 22, 2009, Judge
Sheila Woods-Skipper granted [McLaughlin]’s first
PCRA petition and reinstated [his] right to file a
direct appeal nunc pro tunc.
On October 23, 2009, [McLaughlin] filed his
second direct appeal with the Superior Court, with
the assistance of Mr. Winston. [McLaughlin] raised
two issues. First, he claimed that the trial court’s
pro se colloquy was inadequate, and secondly, he
claimed that his trial counsel was ineffective for
failing to object to the inadequate colloquy. The
Superior Court affirmed the judgment of sentence on
November 8, 2010, indicating that [McLaughlin]
waived the issue of trial court error because he did
not raise it before the trial court. The Court also
held that the ineffective assistance of counsel claim
was improper on direct appeal and should be
deferred until collateral review. The Supreme Court
1
Because of a probation violation and subsequent revocation of probation
and re-sentencing, McLaughlin is still on probation stemming from his
conviction in this case. See N.T., 1/29/14, at 5-7.
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denied [McLaughlin]’s [p]etition for [a]llowance of
[a]ppeal on April 7, 2011.
[McLaughlin] filed [the instant PCRA [p]etition pro
se on April 4, 2012 which he amended on July 9,
2012. On January 3, 2013, [McLaughlin] filed an
amended [] PCRA petition, with the assistance of
counsel, Stephen T. O’Hanlon. In this counseled
petition, [McLaughlin] requested that this [c]ourt
vacate the judgment of sentence because Mr. Laver
had provided ineffective assistance of counsel when
he failed to object to an inadequate waiver of
counsel colloquy.
On July 25, 2013, the Commonwealth filed a
motion to dismiss the petition, arguing that
[McLaughlin]’s waiver of counsel was valid and also
that [McLaughlin] forfeited his right to counsel by his
dilatory and disruptive conduct. [McLaughlin]
answered the Commonwealth’s motion on October
29, 2013 with the assistance of counsel, Kevin Mark
Wray. This [c]ourt heard argument and testimony
on the Commonwealth’s motion to dismiss on seven
different occasions between January and May of
2014. The [c]ourt ultimately dismissed the petition
on May 29[], 2014, finding that although
[McLaughlin] had not forfeited his right to counsel
through any misbehavior, he could not prevail on his
petition because he was not prejudiced by the trial
court’s failure to provide an adequate waiver of
counsel colloquy.
PCRA Court Opinion, 2/12/15, at 2-5 (footnote and record citations omitted).
On June 27, 2014, McLaughlin filed a timely notice of appeal. On
October 16, 2014, the PCRA court ordered McLaughlin to file a concise
statement of the errors complained of on appeal pursuant to Rule 1925(b) of
the Pennsylvania Rules of Appellate Procedure. On October 25, 2014,
McLaughlin timely filed his Rule 1925(b) statement.
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On appeal, McLaughlin raises the following issues for our review:
1. Did the [PCRA court] err by denying
[McLaughlin] relief where the trial court did not
conduct an adequate waiver of counsel
colloquy as required by [Pa.R.Crim.P.] 121?
2. Did the [PCRA court] err by denying
[McLaughlin] relief due to Judge Willis Berry
presiding over the trial?
McLaughlin’s Brief at 3.
We begin by acknowledging that “[o]ur standard of review regarding a
PCRA court’s order is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.”
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). “The
PCRA court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Id.For his first issue on appeal, McLaughlin argues that the PCRA court
erred in denying his PCRA petition because the trial court failed to conduct
an adequate waiver of counsel colloquy pursuant to Rule 121 of the
Pennsylvania Rules of Criminal Procedure. See McLaughlin’s Brief at 29-34.
We conclude that this claim does not entitle McLaughlin to relief.
Section 9543(a) of the PCRA identifies a petitioner’s burden of proof
and pleading requirements to be eligible for PCRA relief. Section 9543(a)
provides, in pertinent part, as follows:
(a) General rule.--To be eligible for relief under
this subchapter, the petitioner must plead and prove
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by a preponderance of the evidence all of the
following:
* * *
(2) That the conviction or sentence resulted
from one or more of the following:
(i) A violation of the Constitution of this
Commonwealth or the Constitution or
laws of the United States 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.
(ii) 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.
(iii) A plea of guilty unlawfully induced
where the circumstances make it likely
that the inducement caused the
petitioner to plead guilty and the
petitioner is innocent.
(iv) The improper obstruction by
government officials of the petitioner’s
right of appeal where a meritorious
appealable issue existed and was
properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial
of exculpatory evidence that has
subsequently become available and
would have changed the outcome of the
trial if it had been introduced.
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(vii) The imposition of a sentence greater
than the lawful maximum.
(viii) A proceeding in a tribunal without
jurisdiction.
42 Pa.C.S.A. § 9543(a)(2).
McLaughlin raised the issue of the trial court’s failure to conduct an
adequate waiver of counsel colloquy pursuant to Rule 121 of the
Pennsylvania Rules of Criminal Procedure in his direct appeal to this Court
decided on November 8, 2010. See Commonwealth v. McLaughlin, 3144
EDA 2009 at 2-3 (Pa. Super. Nov. 8, 2010) (unpublished memorandum). As
the prior panel of this Court determined, McLaughlin waived this claim, and
therefore it does not entitle him to relief, because he failed to raise the issue
before the trial court and raised it for the first time on appeal. See id.; see
also Commonwealth v. Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015)
(issues, even of constitutional dimension, are waived if not raised in the
court below); Pa.R.A.P. 302(a).
Thus, in order for McLaughlin to raise a meritorious claim under the
PCRA relating to his alleged inadequate waiver of counsel colloquy, he would
have to plead and prove that his colloquy counsel was ineffective for failing
to object to a deficient colloquy and that his appellate counsel was
ineffective for failing to preserve the issue for his direct appeal. See, e.g.,
Commonwealth v. Spotz, 18 A.3d 244, 262-64 (Pa. 2011); see also
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42 Pa.C.S.A. § 9543(a)(2)(ii). Indeed, McLaughlin framed the issue this way
in his amended PCRA petition. See PCRA Petition, 1/3/13, at 4-7. For the
reasons that follow, however, McLaughlin has waived this ineffective
assistance of counsel claim on appeal.
There are several layers of preservation required for an issue in a
criminal case to be appropriately subject to appellate review. The appellant
must raise the issue before the trial court. See Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.”). If the trial court issues an order requiring the filing of a
1925(b) statement, any issue the appellant must include any issue he or she
seeks to raise on appeal therein. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.”). The appellant must also
include the issue in the statement of questions involved section of the
appellate brief. See Pa.R.A.P. 2116(a) (“No question will be considered
unless it is stated in the statement of questions involved or is fairly
suggested thereby.”). Lastly, for an issue to be reviewable on appeal, the
appellant must include a properly developed argument in support of the
issue in the argument section of his or her appellate brief. See
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an
appellate brief fails to provide any discussion of a claim with citation to
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relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.”).
While McLaughlin included the ineffectiveness claim relating to
colloquy counsel and appellate counsel in his amended PCRA petition, he
failed to raise the issue in his Rule 1925(b) statement and the statement of
questions involved section of his appellate brief. See Rule 1925(b)
Statement, 10/25/14; McLaughlin’s Brief at 3. Furthermore, McLaughlin
failed to include discussion on the issue with citation to relevant authority in
the argument section of his appellate brief. See McLaughlin’s Brief at 29-34.
Therefore, McLaughlin has waived his claim that colloquy counsel was
ineffective for failing to object to the waiver of counsel colloquy and that
appellate counsel was ineffective for failing to preserve the issue for his
direct appeal.2 Accordingly, McLaughlin’s first issue does not entitle him to
relief.
2
Moreover, even if McLaughlin had preserved this issue on appeal, it would
not entitle him to relief. To prevail on an ineffective assistance of counsel
claim, the petitioner must establish: “(1) the underlying claim has arguable
merit; (2) no reasonable basis existed for counsel’s action or failure to act;
and (3) the petitioner suffered prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable probability that the
result of the proceeding would have been different.” Commonwealth v.
Bomar, 104 A.3d 1179, 1188 (Pa. 2014) (citation omitted). “When a
petitioner claims ineffective assistance of counsel based on a failure to object
to an allegedly defective waiver colloquy, … [t]o establish prejudice, the
petitioner must demonstrate a reasonable probability that but for counsel’s
ineffectiveness, he would not have waived the right at issue.” Spotz, 18
A.3d at 263-64. Here, McLaughlin has never pled, much less proved, that
he would not have waived his right to counsel had the trial court conducted
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For his second issue on appeal, McLaughlin argues that the PCRA court
erred in denying his PCRA petition because Judge Berry, who conducted
McLaughlin’s nonjury trial, exhibited bias in favor of the Commonwealth.
See McLaughlin’s Brief at 34-36. McLaughlin asserts that Judge Berry was
attempting to gain favor with the Commonwealth because he knew that he
was going to be the subject of a criminal investigation by the District
Attorney’s Office, as he had been engaging in criminal activity since January
1997. See id.
We conclude that this claim is not cognizable under the PCRA. In his
appellate brief, McLaughlin does not state which provision of section
9543(a)(2) is applicable. Additionally, although difficult to discern his
precise argument, he does not appear to be raising a violation of his
constitutional rights, ineffective assistance of counsel, improper obstruction
by government official with his right to appeal, the unavailability at the time
of trial of exculpatory evidence, an illegal sentence, or a proceeding in a
tribunal without jurisdiction. See 42 Pa.C.S.A. § 9543(a)(2). McLaughlin’s
claim is merely that the District Attorney’s investigation into Judge Berry
caused Judge Berry to be biased in favor of the Commonwealth in order to
curry favor with the District Attorney’s Office. See McLaughlin’s Brief at 34-
36.
a proper colloquy. To the contrary, the certified record on appeal is replete
with evidence that McLaughlin wished to represent himself in this matter.
See, e.g., N.T., 2/26/07, at 2-5; N.T., 7/13/06, at 2, 7-10, 13.
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Even if this claim were cognizable under the PCRA, it is meritless.
While the activity that brought Judge Berry under investigation by the
District Attorney’s Office dates back to January 1997, see In re Berry, 979
A.2d 991, 994 (Pa. Ct. Jud. Disc. 2009), Judge Berry did not become aware
of any potential criminal investigation by the District Attorney’s Office until
June 25, 2009, see Commonwealth v. Cain, 3254 EDA 2009 at 4 (Pa.
Super. Nov. 26, 2012) (unpublished memorandum), nearly two years after
McLaughlin’s conviction. Therefore, the District Attorney’s investigation of
Judge Berry could not have caused Judge Berry to be biased in favor of the
Commonwealth at the time of McLaughlin’s trial in 2007.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2015
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