Com. v. Evanicsko, M.

J-S36035-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL JOSEPH EVANICSKO, :
:
Appellant : Nos. 2020 WDA 2014
Appeal from the PCRA Order Entered November 10, 2014,
in the Court of Common Pleas of Somerset County,
Criminal Division, at No(s): CP-56-CR-0000792-2012
BEFORE: PANELLA, JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 17, 2015
Michael Joseph Evanicsko (Appellant) appeals from an order which
denied his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. We vacate the order and remand for proceedings
consistent with this Memorandum.
The background underlying this matter can be summarized as follows.
On February 12, 2013, [Appellant] entered a counseled
guilty plea to one count of criminal attempt to acquire or obtain
substances by fraud, 35 P.S. [§] 780-113(a)(12), a felony. [The
trial court] ordered a modified presentence investigation[.]…
[Appellant] was ultimately sentenced by video on May 31, 2013
to not less than four nor more than eight years in a State
Correctional Institution. [The court’s] order further provided
that this sentence was to be served concurrently with another
sentence [Appellant] was then serving and granted 289 days
credit for time served. No direct appeal was filed.…
*Retired Senior Judge assigned to the Superior Court.
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PCRA Court Opinion, 11/10/2014, at 1-2 (unnecessary capitalization
omitted).
On February 25, 2014, Appellant pro se timely filed a PCRA petition,
and the PCRA court appointed counsel to represent Appellant. However,
Appellant retained Michael F. Walthier, Esq. (PCRA counsel) to represent
him, and PCRA counsel entered his appearance on behalf of Appellant.
On May 28, 2014, the PCRA court held a hearing on the matter. No
evidence was received at the hearing. Rather, PCRA counsel informed the
court of the issues he believed to be pertinent. According to counsel, there
were two possible issues in the case. PCRA counsel stated that “one issue is
whether or not [plea] counsel gave [Appellant] erroneous advice about the
[offense gravity score (OGS)], and whether that erroneous advice would
invalidate his guilty plea.” N.T., 5/28/2014, at 4-5. As to the other issue,
counsel asserted that the district attorney present at Appellant’s guilty plea
and sentencing hearings previously had represented Appellant as defense
counsel in criminal matters. Appellant maintained that such a situation
constituted a conflict of interest, requiring the district attorney to recuse
herself. Both of these issues, at least arguably, were raised in Appellant’s
pro se PCRA petition. The PCRA court granted PCRA counsel’s request for
additional time to file an amended PCRA petition.
The certified record does not contain an amended PCRA petition.
Moreover, the PCRA court’s docket does not reflect that Appellant filed an
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amended PCRA petition. Nonetheless, on August 7, 2014, the PCRA court
entered an order scheduling a hearing for September 19, 2014, on an
amended PCRA petition.
Prior to that hearing, Appellant filed a document entitled “Addendum
to Amended PCRA Petition.” Therein, Appellant noted that he filed his
Amended PCRA petition on June 30, 2014, and asked the PCRA court to
consider two additional issues. First, Appellant contended that his sentence
is illegal. In this regard, Appellant highlighted that, when the court
sentenced him, he was serving a sentence based upon the revocation of
parole. According to Appellant,
[b]ecause [Appellant] was then-serving a sentence resulting
from the revocation of parole, the Pennsylvania Department of
Corrections has subsequently refused to honor [the sentencing
court’s] order, citing 61 Pa.C.S.A. § 6138(a)(5), which requires
that any new sentence be served consecutive to the parole
revocation sentence. Moreover, because [Appellant] was then-
serving a parole revocation sentence, he did not receive the
credit for time served as ordered by the [c]ourt.
Addendum to Amended PCRA Petition, 9/10/2014, at 2. Regarding the
second issue raised in the addendum, Appellant asserted that plea “counsel
was ineffective for failing to raise a claim regarding the validity and
enforceability of the terms of the sentence imposed by the [c]ourt.” Id. at
3.
The PCRA court did not receive any evidence at the September 19,
2014, hearing. Instead, PCRA counsel asserted that four issues were before
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the court. N.T., 9/19/2014, at 2. The parties discussed at length
Appellant’s sentencing issue, id. at 4-10, and PCRA counsel made passing
reference to his belief that plea counsel should have caught the sentencing
issue. Id. at 10. PCRA counsel also addressed a claim that Appellant
involuntarily entered his guilty plea, essentially because the factual basis for
the charge against Appellant was stated inadequately on the record. Id. at
10-11. Lastly, PCRA counsel briefly mentioned Appellant’s conflict-of-
interest claim regarding the district attorney. Id. at 12-14.
On November 10, 2014, the PCRA court denied Appellant’s petition.
Appellant timely filed a notice of appeal. On December 8, 2014, the PCRA
court directed Appellant to comply with Pa.R.A.P. 1925(b) within 21 days of
the court’s order. On January 2, 2015, Appellant filed a motion in which he
requested an extension of time to file a 1925(b) statement. According to
PCRA counsel, the court’s prothonotary mailed a copy of the 1925(b) order
to counsel’s previous address, and counsel did not receive the order by
forwarded mail until January 2, 2014. The PCRA court granted that motion
on January 6, 2015, giving Appellant until January 16, 2015 to file a 1925(b)
statement. Appellant timely filed a 1925(b) statement, and the PCRA court
subsequently issued an opinion pursuant to Pa.R.A.P. 1925(a).
In his brief to this Court, Appellant asks us to consider the questions
that follow.
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1. Whether the plea colloquy was constitutionally deficient
because the record lacked an adequate factual basis?
2. Whether the plea colloquy was constitutionally deficient
because the court failed to advise [] Appellant that he faced a
mandatory consecutive term of imprisonment?
3. Whether the sentence imposed was illegal because it called
for a concurrent term of imprisonment contrary to 61 Pa.C.S.A.
§ 6138 (the “Parole Act”)?
4. Whether the District Attorney for Somerset County was
legally or ethically prohibited from participating in Appellant’s
case in a prosecutorial capacity because she had previously
served as his defense counsel in other cases?
5. Whether plea/sentencing counsel was ineffective as
evidenced by his failure to object or file appropriate post-
sentence motions or appeals regarding the deficiencies in the
plea colloquy, the illegal sentence imposed by the court, and/or
the District Attorney’s conflict of interest?
Appellant’s Brief at 4 (PCRA court’s and suggested answers omitted).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the court’s rulings are supported by the evidence of
record and free of legal error. Commonwealth v. Anderson, 995 A.2d
1184, 1189 (Pa. Super. 2010).
As an initial matter, Appellant’s brief fails to indicate where in the
record he preserved his multiple issues, in violation of Pa.R.A.P. 2117(c) and
2119(e). These violations are significant because, while Appellant may have
presented the PCRA court with an amended PCRA petition, the certified
record and the PCRA court’s docket demonstrate that he did not file of
record an amended PCRA petition. “Our law is unequivocal that the
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responsibility rests upon the appellant to ensure that the record certified on
appeal is complete in the sense that it contains all of the materials necessary
for the reviewing court to perform its duty.” Commonwealth v.
Bongiorno, 905 A.2d 998, 1000 (Pa. Super. 2006). Moreover,
[a]n appellate court is limited to considering only the materials
in the certified record when resolving an issue. In this regard,
our law is the same in both the civil and criminal context
because, under the Pennsylvania Rules of Appellate Procedure,
any document which is not part of the officially certified record is
deemed non-existent—a deficiency which cannot be remedied
merely by including copies of the missing documents in a brief or
in the reproduced record.
Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (citation
omitted). With these principles in mind, we will address Appellant’s issues.
Under his first two issues, Appellant argues that his guilty plea was
involuntary because the factual basis offered during the plea colloquy was
insufficient and because he was not informed that a direct consequence of
his guilty plea included a mandatory consecutive term of imprisonment.
Under his fourth issue, Appellant reasserts his claim that the district attorney
should have recused herself from Appellant’s plea and sentencing hearings
due to a conflict of interest. Assuming arguendo that Appellant raised these
issues in the PCRA court, they still are waived.
For purposes of the PCRA, “an issue is waived if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review,
on appeal or in a prior state postconviction proceeding.” 42 Pa.C.S.
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§ 9544(b). Appellant could have raised his challenge to the voluntariness of
his guilty plea in a post-sentence motion to withdraw his plea. See, e.g.,
Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002)
(observing that a defendant can challenge the voluntariness of his guilty plea
in a post-sentence motion to withdraw a guilty plea). In addition, to the
extent that the district attorney’s presence at the plea and sentencing
hearings created a conflict of interest, the conflict existed at the plea and
sentencing hearings and could have been raised then. Consequently,
Appellant waived these issues for purposes of the PCRA.
We now consider Appellant’s fifth issue. Under this issue, Appellant
presents four claims of ineffective assistance of counsel. First, he argues
that plea counsel was ineffective for failing to file a motion to withdraw his
guilty plea due to the lack of an adequately-stated factual basis for his
charges during the plea colloquy. Secondly, he maintains that plea counsel
was ineffective for failing to file the same motion because, during the plea
colloquy, Appellant was not informed that he would receive a consecutive
sentence since he already was serving a sentence based upon a revocation
of parole. Next, Appellant essentially claims that plea counsel was
ineffective for failing to object to the previously-discussed illegality of his
sentence. Lastly, Appellant contends that plea counsel was ineffective for
failing to object to the district attorney’s participation in his plea and
sentencing hearings based upon her alleged conflict of interest.
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“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a). Based upon the record
before us, we conclude that Appellant raised in the PCRA court only one of
the claims of ineffective assistance of counsel he presents in his appellate
brief. Specifically, in his “Addendum to Amended PCRA Petition,” Appellant
contended that plea counsel was ineffective for failing to object to the
illegality of his sentence. Appellant has waived the claims that he failed to
raise in the PCRA court.
Concerning the claim that Appellant did preserve for our review, we
need not analyze it under the rubric of a claim of ineffective assistance of
counsel, as Appellant presents the underlying illegal-sentence claim under
his third issue; such an issue is cognizable under the PCRA; and such an
issue is reviewable even if Appellant would not have raised it in the PCRA
court. See, e.g., Commonwealth v. Davis, 760 A.2d 406, 409 (Pa. Super.
2000) (finding Davis’ challenges to the legality of sentence to be cognizable
under the PCRA and noting that such challenges cannot be waived).
Appellant’s challenge to the legality of his sentence is based upon the
following statutory language found at 61 Pa.C.S. § 6138.1
1
To the extent that we must interpret section 6138 in order to resolve this
issue, we are guided by the following principles of law.
Statutory interpretation implicates a question of law. Thus, our
scope of review is plenary, and our standard of review is de
novo.
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(a) Convicted violators.--
(1) A parolee under the jurisdiction of the board released from a
correctional facility who, during the period of parole or while
delinquent on parole, commits a crime punishable by
imprisonment, for which the parolee is convicted or found guilty
by a judge or jury or to which the parolee pleads guilty or nolo
contendere at any time thereafter in a court of record, may at
the discretion of the board be recommitted as a parole violator.
***
(5) If a new sentence is imposed on the parolee, the service of
the balance of the term originally imposed by a Pennsylvania
court shall precede the commencement of the new term imposed
in the following cases:
(i) If a person is paroled from a State correctional
institution and the new sentence imposed on the person is
to be served in the State correctional institution.
61 Pa.C.S. § 6138.
Thus, pursuant to the clear and unambiguous language of this statute,
if a parolee receives a new sentence, then the parolee must serve his or her
original sentence before beginning to serve his or her new sentence, when,
inter alia, the parolee was paroled from a state correctional institution and
Pennsylvania’s Statutory Construction Act informs our
analysis, establishing, “The object of all interpretation and
construction is to ascertain and effectuate the intention of the
General Assembly.” 1 Pa.C.S.A. § 1921(a). “When the words of
a statute are clear and free from all ambiguity, the letter of it is
not to be disregarded under the pretext of pursuing its spirit.” 1
Pa.C.S.A. § 1921(b)….
Commonwealth v. Van Aulen, 952 A.2d 1183, 1184-85 (Pa. Super. 2008)
(some citations omitted).
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the new sentence imposed on the parolee is to be served in the state
correctional institution.
Here, the record establishes the following. At his guilty plea colloquy,
Appellant stated that he currently was serving a sentence at S.C.I. Cresson.
N.T., 2/12/2013, at 6. At his sentencing hearing, the court sentenced
Appellant to 4 to 8 years in prison, to be served at a state correctional
institution. N.T., 5/31/2013, at 6. The court also ordered that this sentence
was to be served concurrently to the sentence Appellant was then serving.
Id. The court further noted that Appellant was being supervised by the
State Board of Probation and Parole when he committed the offense to which
he pled guilty.
In its Pa.R.A.P. 1925(a) opinion, the PCRA court acknowledged that
Appellant “was serving a state parole revocation sentence at the time” he
received his new sentence. PCRA Court Opinion, 2/4/2015, at 2. The court
also determined that, due to Appellant’s circumstances, it was bound to
follow 61 Pa.C.S. § 6138. Id. The court then concluded,
At the time of sentencing, despite the fact that [the court] had a
Pre-Sentence Investigation Report prepared by the Adult
Probation Department, [the court] missed the fact that
[Appellant] was on State Parole and, as a result, failed to order
the sentence to run consecutively with the revocation back-time
[Appellant] was then serving.
Id.
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The court, however, ultimately rejected Appellant’s claim that his
sentence is illegal. The court seemed to believe that, because 61 Pa.C.S.
§ 6138 mandates that Appellant serve his new sentence consecutively to his
original sentence, the court’s stated desire for the sentences to run
concurrently is of no significance. We are unconvinced by the court’s
reasoning.
Pursuant to the clear and unambiguous language of 61 Pa.C.S.
§ 6138(a)(5)(i), if Appellant was paroled from a state correction institution
and his new sentence must be served in a state correctional institution, then
Appellant must serve the entirety of his original sentence before he can
begin serving his new sentence. Stated somewhat differently, if Appellant
was paroled from a state correction institution and his new sentence must be
served in a state correctional institution, then the portion of his new
sentence requiring him to serve his new sentence concurrently with his state
parole sentence is illegal.2 The certified record strongly suggests that
2
According to Appellant’s “Addendum to Amended PCRA Petition,” the
Department of Corrections refused to “honor [the trial court’s] sentencing
order, citing 61 Pa.C.S.A. § 6138(a)(5), which requires that any new
sentence be served consecutive to the parole revocation sentence.”
Addendum to Amended PCRA Petition, 9/10/2014, at 2 (footnote omitted).
We observe that, in Fajohn v. Department of Corrections, 692 A.2d 1067(Pa. 1997), “the Supreme Court held that the Department [of Corrections]
cannot be compelled by a writ of mandamus to enforce an illegal sentencing
order.” Sturgis v. Doe, 26 A.3d 1221, 1224 (Pa. Commw. 2011). “In
accordance with Fajohn, [the Commonwealth Court] has repeatedly and
consistently held that mandamus is not available to compel the Department
to enforce an illegal sentencing order.” Id.- 11 -
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Appellant was serving a sentence stemming from the revocation of state
parole when he received his new sentence; however, the record is not
definite on this point. Consequently, we vacate the PCRA court’s order. We
remand the matter for the court to make a determination of this fact. If
indeed Appellant was serving a term of incarceration stemming from the
revocation of state parole when he received his new sentence, then the court
shall grant Appellant’s PCRA petition, vacate his judgment of sentence, and
order a new sentencing hearing. If he was not serving such a sentence,
then the court shall deny Appellant’s PCRA petition.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2015
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