Com. v. Medelo, E.

J-S38042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
EDWARD JOSEPH MEDELO
Appellant No. 3335 EDA 2016
Appeal from the PCRA Order September 30, 2016
in the Court of Common Pleas of Lehigh County Criminal Division
at No(s):
CP-39-CR-0003579-2012
CP-39-CR-0005310-2012
CP-39-CR-0005314-2012
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 21, 2017
Appellant Edward Joseph Medelo appeals from an order denying his
petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
The PCRA court accurately summarized the factual and procedural
history of this case as follows:
Between May 8, 2012, and June 11, 2012, [Appellant]
and a confederate burglarized or attempted to burglarize
various convenience stores and/or gas stations throughout
Lehigh and Northampton Counties. The modus operandi
for this burglary spree was the use of a rock or brick to
break windows in order to gain entry into these
businesses. Once inside, the burglars stole primarily
cartons of Newport and/or Marlboro cigarettes. The spree
ended on June 11, 2012, when they attempted to enter a
*
Former Justice specially assigned to the Superior Court.
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store named the Binny Mart by smashing a front window.
A passerby observed two males wearing hooded
sweatshirts running from the store and called 9-1-1. The
vehicle that the suspects used to depart the scene was
stopped a short time later, and [Appellant]’s involvement
in all of these burglaries was uncovered.
[Appellant] entered open nolo contendere pleas to
twelve (12) counts of Burglary,[fn1] two (2) counts of
Attempted Burglary,[fn2] and one (1) count of Criminal
Conspiracy to Commit Burglary.[fn3] Following [Appellant]’s
plea, a presentence report was requested, which disclosed
thirteen (13) prior convictions, including seven (7) prior
burglary convictions. It appears that in those burglaries,
“rocks were used to smash doors or windows to enter the
building and cigarettes were taken.” The report also
disclosed that [Appellant], who has never held verifiable
employment, has a history of using heroin. He indicated at
the guilty plea and sentencing that his heroin addiction
was the driving force behind his crimes.
[fn1]
18 Pa.C.S. § 3502(a).
[fn2]
18 Pa.C.S. §[§] 3502(a), 901(a).
[fn3]
18 Pa.C.S. §[§] 3502(a), 903(a).
Prior to sentencing, trial counsel, David Ritter, Esquire,
was permitted to withdraw from his representation of
[Appellant], and new counsel, Charles Banta, Esquire, was
appointed on August 5, 2013. On September 19, 2013,
Attorney Banta filed a petition to withdraw [A]ppellant’s
nolo contendere pleas. However, on October 28, 2013, the
date of sentencing, that petition was withdrawn and
[Appellant] was sentenced. Following a full sentencing
proceeding, a total sentence of not less than fourteen (14)
years nor more than twenty-eight (28) years in a state
correctional institution was imposed. [Appellant] was also
made eligible for the Recidivism Risk Reduction Incentive
Programs (hereinafter RRRI).
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On March 25, 2014, a “Petition for Post-Conviction
Relief” was filed on behalf of [Appellant]. [Appellant]
alleged that Attorney Banta was ineffective for failing to
file a requested appeal to the Superior Court. Robert
Long, Esquire, was appointed to represent [Appellant] and
an “Amended Post Conviction Petition” was filed on July 3,
2014. In that petition, Attorney Long included claims of
ineffectiveness due to the failure of Charles Banta, Esquire,
counsel at sentencing, to file a requested appeal, as well
as errors in the plea process which should permit
[A]ppellant to again withdraw his pleas.
A hearing on the Amended PCRA petition was held on
September 22, 2014. Once again, [Appellant] decided not
to pursue his request to withdraw his pleas. However, he
was granted relief by permitting him to file a Notice of
Appeal Nunc Pro Tunc within thirty (30) days. Counsel did
so on October 3, 2014. Thereafter, the Superior Court
affirmed the judgment of sentence on April 14, 2015.
[Commonwealth v. Medelo, 2896 EDA 2014 (Pa. Super.
filed Apr. 14, 2015].
[Appellant] filed this . . . pro se PCRA petition on
January 15, 2016. Counsel was appointed and an
Amended PCRA petition was filed on April 18, 2016. It is
alleged, as previously stated, that the Commonwealth’s
global offer of a minimum sentence of seven years was not
communicated to [Appellant] by trial counsel. At the
hearing held on September 7, 2016, the parties stipulated
to the use of the testimony from the previous PCRA
hearing held on September 22, 2014, for the resolution of
the current claim. Following the hearing, the PCRA Court
issued an opinion [and order] dismissing [Appellant]’s
PCRA petition.
PCRA Ct. Op., 11/21/16, at 2-4.
Appellant filed a timely notice of appeal from the order dismissing his
amended second PCRA petition. Both Appellant and the PCRA court
complied with Pa.R.A.P. 1925.
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On January 25, 2017, PCRA counsel filed an application in this Court to
withdraw as counsel along with a “no merit” letter brief in accordance with
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Two preliminary matters require mention. First, in September 2014,
the PCRA court granted Appellant leave to file a direct appeal nunc pro tunc.
In April 2015, this Court affirmed Appellant’s judgment of sentence on direct
appeal. Appellant filed his present PCRA petition in January 2016, within
one year after this Court affirmed his judgment of sentence on direct appeal.
Accordingly, we will treat Appellant’s present PCRA petition as a timely filed
first petition. See Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.
Super. 2014) (citations omitted) (“when a PCRA petitioner's direct appeal
rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent
PCRA petition will be considered a first PCRA petition for timeliness
purposes”).
Here, counsel filed a Turner/Finley “no-merit” letter on appeal and a
separate motion to withdraw as counsel. Counsel’s letter informed Appellant
of counsel’s intent to withdraw, discussed the issue Appellant wished to
raise, explained why the issue merits no relief, and indicated that counsel
enclosed a copy of the motion to withdraw. However, counsel improperly
indicated that Appellant could proceed pro se or with private counsel if this
Court granted counsel request to withdraw. See Commonwealth v.
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Muzzy, 141 A.3d 509, 512 (Pa. Super. 2016). On February 17, 2017, this
Court ordered counsel to file in this Court copies of a letter addressed to
Appellant advising him of his immediate right to proceed pro se or with
privately retained counsel. Counsel complied with this order and advised
Appellant “[a]t this time you may immediately proceed in the appeal pro se
or through private counsel. You do not have to wait until the Superior Court
rules on my Motion to Withdraw.” Letter from Counsel to Appellant,
2/28/17. Therefore, we conclude that counsel has substantially complied
with the Turner/Finley requirements, and we proceed to an independent
evaluation. See Commonwealth v. Widgins, 29 A.3d 816, 819-20 (Pa.
Super. 2011) (court must conduct an independent review and agree with
counsel that issues raised were meritless).
The sole issue raised in this appeal is
[whether trial] counsel was ineffective for not
communicating the Commonwealth’s global offer of a
minimum sentence of seven years to . . . Appellant prior to
the expiration of said offer.
Turner/Finley letter, at 2.
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).
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
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that such deficiency prejudiced him. Strickland v.
Washington, [ ] 104 S. Ct. 2052, [ ] (1984). This Court
has characterized the Strickland standard as tripartite, by
dividing the performance element into two distinct parts.
Commonwealth v. Pierce, [ ] 527 A.2d 973, 975 ([Pa.]
1987). Thus, to prove counsel ineffective, [a]ppellant
must demonstrate that: (1) the underlying legal issue has
arguable merit; (2) counsel's actions lacked an objective
reasonable basis; and (3) [a]ppellant was prejudiced by
counsel's act or omission. Id. at 975.
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012).
The PCRA court properly rejected Appellant’s claim of ineffectiveness,
because the record demonstrates that trial counsel notified Appellant of the
Commonwealth’s offer of a seven year sentence prior to the deadline for
accepting this offer. As noted above, the parties agreed to the admission of
all testimony from the PCRA hearing on September 22, 2014 in order to
resolve Appellant’s current claim. Trial counsel testified during this hearing
that the Commonwealth extended “numerous plea offers” to Appellant prior
to the scheduled date of trial, but “[e]ach time [Appellant] rejected the
offers.” N.T., 9/22/14, at 44-46. One offer was for Appellant’s aggregate
minimum sentence not to exceed seven years’ imprisonment. Id. at 49.
The deadline given by the Commonwealth for accepting this offer was April
19, 2013. Trial counsel reviewed the offer with Appellant prior to the
deadline, but Appellant rejected the offer. Id. at 50-51. Only when trial
was about to commence on May 14, 2013 did Appellant decide to enter an
open guilty plea, which resulted in a sentence of fourteen to twenty-eight
years’ imprisonment.
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The PCRA court determined that trial counsel’s testimony “was both
credible and corroborated by the evidence.” PCRA Ct. Op. at 5. We agree
that the evidence supports the PCRA court’s determination that trial counsel
discussed the seven year offer with Appellant prior to the deadline for
accepting this offer, but that Appellant turned it down. Further, we agree
with the PCRA court’s observation that Appellant cannot blame trial counsel
for his own stubborn refusal to accept this offer: “In light of the potential
sentence facing [Appellant, trial] counsel had every reason to try to bring
[Appellant] to a rational conclusion of the charges. However, to paraphrase
a well-known proverb, you can lead a horse to water, but you can’t make
him [dr]ink.” Id. at 7.
For these reasons, the PCRA court properly denied Appellant’s PCRA
petition.
Order affirmed. Motion to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2017
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