Com. v. Durney, J.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOHN JAMES DURNEY, : No. 1547 WDA 2013
:
Appellant :
Appeal from the PCRA Order, August 27, 2013,
in the Court of Common Pleas of Erie County
Criminal Division at Nos. CP-25-CR-0001043-2011,
CP-25-CR-0001441-2011, CP-25-CR-0001442-2011,
CP-25-CR-0001443-2011
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 12, 2015
Appellant appeals from the order denying his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541 to
9546. Finding no error, we affirm.
On January 2, 2012, appellant pleaded guilty to two counts of
attempted kidnapping, aggravated assault, stalking, terroristic threats, and
possessing an instrument of crime. The charges arose from four separate
incidents in which appellant attempted to abduct four different women in
Erie from December 11, 2010 to March 27, 2011. On March 28, 2012, the
court sentenced appellant to an aggregate term of 192 to 492 months’
imprisonment (16 to 41 years’ imprisonment).
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On April 26, 2013, appellant timely filed a counseled PCRA petition. A
hearing was held on July 30, 2013, and on August 28, 2013, the PCRA court
denied appellant’s petition. This timely appeal followed.
Appellant raises the following issues on appeal:
[1.] WHETHER THE LOWER COURT ERRED AS A
MATTER OF LAW, AND DID NOT HAVE
SUPPORT IN THE EVIDENTIARY RECORD IN
NOT GRANTING APPELLANT RELIEF UNDER
THE POST CONVICTION RELIEF ACT (“PCRA”),
42 Pa. C.S.A. §§ 9541-9546, FOR INEFFECTIVE
ASSISSTANCE [sic] OF APPELLANT’S TRIAL
COUNSEL REGARDING COUNSEL’S FAILURE TO
ADVISE APPELLANT OF THE POSSIBILITY THAT
HIS SENTENCES ON CRIMINAL CHARGES
STEMMING FROM MULTIPLE DOCKETS COULD
RUN CONSECUTIVELY AND, THEREFORE,
RENDERING APPELLANT’S PLEA ON MULTIPLE
OFFENSES UNKNOWING, INVOLUNTARY, AND
UNINTELLGENT [sic][?]
[2.] WHETHER THE LOWER COURT ERRED AS A
MATTER OF LAW, AND DID NOT HAVE
SUPPORT IN THE EVIDENTIARY RECORD IN
NOT GRANTING APPELLANT RELIEF UNDER
THE PCRA, FOR INEFFECTIVE ASSISSTANCE
[sic] OF APPELLANT’S TRIAL COUNSEL
REGARDING COUNSEL’S FAILURE TO TIMELY
OBJECT TO THE CONTENTS OF THE
“DEFENDANT’S STATEMENT OF
UNDERSTANDING OF RIGHTS PRIOR TO
GUILTY/NO CONTEST PLEA” WHICH FAILED TO
CLEARLY MAKE APPELLANT AWARE OF THE
POSSIBILITY OF HIS SENTENCES RUNNING
CONSECUTIVELY ON MULTIPLE DOCKETS OR
DURING THE PLEA COLLOQUY IN WHICH THE
COMMONWEALTH FAILED TO WARN
APPELLANT OF THE SAME AND THEREFORE
RENDERING APPELLANT’S PLEA ON MULTIPLE
OFFENSES UNKNOWING, INVOLUNTARY, AND
UNINTELLGENT [sic][?]
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[3.] WHETHER THE LOWER COURT ERRED AS A
MATTER OF LAW, AND DID NOT HAVE
SUPPORT IN THE EVIDENTIARY RECORD IN
NOT GRANTING APPELLANT RELIEF UNDER
THE PCRA, FOR INEFFECTIVE ASSISSTANCE
[sic] OF APPELLANT’S TRIAL COUNSEL
REGARDING COUNSEL’S FAILURE TO FILE A
TIMELY POST-SENTENCE MODIFICATION
MOTION OR APPEAL UPON APPELLANT’S
REQUEST[?]
[4.] WHETHER THE LOWER COURT ERRED AS A
MATTER OF LAW, AND DID NOT HAVE
SUPPORT IN THE EVIDENTIARY RECORD IN
NOT GRANTING APPELLANT RELIEF UNDER
THE PCRA, FOR INEFFECTIVE ASSISSTANCE
[sic] OF APPELLANT’S TRIAL COUNSEL
REGARDING COUNSEL’S FAILURE TO FILE A
PRE-TRIAL SUPPRESSION MOTION
ADDRESSING APPELLANT’S INVOLUNTARY
STATEMENTS MADE TO POLICE WHEN
APPELLANT INFORMED THE OFFICERS THAT
HE WISHED TO HAVE COUNSEL PRESENT
DURING HIS INTERROGATION[?]
Appellant’s brief at 3.
Our standard of review for an order denying post-conviction relief is
whether the record supports the PCRA court’s determination, and whether
the PCRA court’s determination is free of legal error. Commonwealth v.
Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record. Id.
Moreover, as appellant’s issues on appeal are stated in terms of
ineffective assistance of counsel, we also note that appellant is required to
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make the following showing in order to succeed with such a claim: (1) that
the underlying claim is of arguable merit; (2) that counsel had no reasonable
strategic basis for his or her action or inaction; and (3) that, but for the
errors and omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different. Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any
prong of this test will cause the entire claim to fail. Commonwealth v.
Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed
to be effective, and appellant has the burden of proving otherwise.
Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).
Preliminarily, we note that both appellant and trial counsel, Michael J.
Antkowiak, Esq., testified at the PCRA hearing. The PCRA court has made an
on-the-record finding that the testimony of appellant was not credible and
that the testimony of Attorney Antkowiak was both credible and supported
by the plea colloquy. (Trial court opinion, 8/28/13 at first page.)1 We are
bound by the credibility determinations of the court where they are
supported by the record. Commonwealth v. Stewart, 84 A.3d 701, 711
(Pa.Super. 2013), appeal denied, 93 A.3d 463 (Pa. 2014). Consequently,
we cannot accept appellant’s account and must accept Attorney Antkowiak’s
testimony in resolving appellant’s issues on appeal.
1
The pages of the trial court opinion are unnumbered.
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In his first two issues, appellant raises related claims of trial counsel’s
ineffectiveness. First, he claims that trial counsel failed to advise him that
the sentences from separate criminal dockets could be imposed
consecutively, thus rendering his plea unintelligent. Second, appellant
argues that counsel was ineffective in failing to object to the written plea
colloquy (Defendant’s Statement of Understanding of Rights Prior to
Guilty/No Contest Plea) because it failed to properly advise appellant that his
sentences could be imposed consecutively. Finally, contained within the
parameters of these contentions is a claim by appellant that trial counsel
repeatedly assured him that he would receive a sentence of 3½ to 7 years’
imprisonment.
Attorney Antkowiak testified that he never made appellant any
promise in regard to his sentence and he specifically disavowed having
promised him a sentence of 3½ to 7 years’ imprisonment. (Notes of
testimony, 7/30/13 at 27.) Attorney Antkowiak also testified that appellant
was “absolutely” aware that the maximum possible penalty was 75 years’
imprisonment and that he did nothing to discourage that belief. (Id. at 29.)
Attorney Antkowiak also stated that he never told appellant that he did not
have to worry about the 75-year maximum. (Id. at 28.) In point of fact,
Attorney Antkowiak specifically informed appellant that he was likely facing
consecutive sentences. (Id. at 32.)
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As for the written plea colloquy, we note that it plainly states the
following at paragraph 4:
4. I understand that the maximum sentence for
the crime(s) to which I am pleading guilty/no
contest is AT DOCKET 1043 of 2011:
COUNT 1: $25,000/20 YEARS; DOCKET
1441 of 2011: COUNT 1: $10,000/5
YEARS, COUNT 2: $10,000/5 YEARS,
COUNT 3: $10,000/5 YEARS; DOCKET
1442 of 2011: COUNT 1: $25,000/20
YEARS; DOCKET 1443 of 2011: COUNT 2:
$25,000/20 YEARS
TOTAL: $105,000/75 YEARS
Defendant’s Statement of Understanding of Rights Prior to Guilty/No Contest
Plea, paragraph 4 (emphasis in original).
Thus, the written plea colloquy clearly alerted appellant to the fact that
his maximum sentencing exposure was 75 years’ imprisonment. The
75-year total could not be achieved unless all of appellant’s individual
sentences at the various docket numbers were run consecutively. Appellant
admitted at the PCRA hearing that the written plea colloquy stated that he
faced a total sentence of 75 years’ imprisonment. (Notes of testimony,
7/30/13 at 16.) However, appellant claimed that counsel told him he did not
have to worry about the maximum because he was pleading guilty. (Id.)
We find that the written plea colloquy effectively informed appellant that his
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sentences could be run consecutively and there was no basis for counsel to
object to it.2
Finally, we find appellant’s reliance on Commonwealth v. Diehl, 61
A.3d 265 (Pa.Super. 2013), appeal denied, 77 A.3d 1258 (Pa. 2013), to be
misplaced. In Diehl, the defendant was informed as to the maximum
sentence he faced at each criminal count, the longest of which was 20 years,
but he was never informed that the sentences could be imposed
consecutively and never was informed as to the possible maximum
sentence. After pleading guilty, the defendant was sentenced to consecutive
sentences totaling 20 to 40 years’ imprisonment. Under these
circumstances, this court found that the plea proceedings were defective and
did not facilitate a knowing, voluntary, and intelligent plea. Unlike Diehl, in
this case appellant was informed as to the maximum possible sentence he
faced and the written plea colloquy indicated that the individual sentences
could be aggregated. Consequently, Diehl offers appellant no support.
In his third issue, appellant argues that counsel was ineffective in
failing to either file a post-sentence motion or a direct appeal.
2
We note in passing that during the oral plea colloquy, the assistant district
attorney may have inadvertently transposed the numbers as to the
maximum sentence appellant faced because she stated that appellant faced
a maximum of “fifty-seven” years’ imprisonment. (Notes of testimony,
1/9/12 at 9.) We see no prejudice to appellant. Appellant testified at the
PCRA hearing that he was aware of the 75-year maximum, he was
sentenced to less than 57 years also, and he does not complain of this error
on appeal.
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Attorney Antkowiak testified that after sentencing, he never had any
conversation with appellant regarding filing either a post-sentence motion or
an appeal. (Notes of testimony, 7/30/13 at 29.) Likewise,
Attorney Antkowiak also stated that appellant’s mother, through whom
appellant sometimes communicated, had not requested either a
post-sentence motion or appeal. (Id. at 29-30.)
“Before a court will find ineffectiveness of counsel for
failing to file a direct appeal, the defendant must
prove that he requested an appeal and that counsel
disregarded that request.” Commonwealth v.
Knighten, 742 A.2d 679, 682 (Pa.Super.1999),
appeal denied, 563 Pa. 659, 759 A.2d 383 (2000).
The rule set out by Knighten was
subsequently modified by more recent decisions,
particularly Roe v. Flores–Ortega, 528 U.S. 470,
480, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000), and
its Pennsylvania expression, Commonwealth v.
Touw, 781 A.2d 1250, 1254-1255 (Pa.Super.2001).
These cases impose a duty on counsel to adequately
consult with the defendant as to the advantages and
disadvantages of an appeal where there is reason for
counsel to think that a defendant would want to
appeal. The failure to consult may excuse the
defendant from the obligation to request an appeal
under Knighten, such that counsel could still be
found to be ineffective in not filing an appeal even
where the defendant did not request the appeal.
Pursuant to Flores–Ortega and Touw,
counsel has a constitutional duty to consult with a
defendant about an appeal where counsel has reason
to believe either (1) that a rational defendant would
want to appeal (for example, because there are non-
frivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to
counsel that he was interested in appealing.
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Commonwealth v. McDermitt, 66 A.3d 810, 814-815 (Pa.Super. 2013).
In his appellate brief, appellant makes no mention of the concerns
addressed by Knighten, Flores-Ortega, or Touw, and puts forth no
relevant discussion thereon. Rather, appellant simply argues that he was
entitled to a post-sentence motion or direct appeal because he requested
them. As noted earlier, the PCRA court’s credibility determinations require
us to accept Attorney Antkowiak’s account that appellant never requested a
post-sentence motion or appeal. Thus, appellant needed to discuss and
demonstrate that Attorney Antkowiak failed to meet his duty to consult.
Appellant’s brief is silent in this regard. Consequently, we find that appellant
has waived this argument through inadequate briefing. Commonwealth v.
Fletcher, 986 A.2d 759, 785 (Pa. 2009) (failure to provide adequate
discussion and citation to authority waives issue).
In his fourth and final issue, appellant asserts that trial counsel was
ineffective in failing to file a suppression motion where police continued to
take statements from appellant after he had requested an attorney.
Appellant’s argument in this regard is specious. At the PCRA hearing,
appellant was shown a police form signed by him waiving his Miranda
rights.3 (Notes of testimony, 7/30/13 at 21-22.) Appellant admitted that
the police read him his rights both times they interviewed him and that he
waived his rights and wished to talk to the police. (Id.) Moreover, appellant
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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also admitted that he never told trial counsel that the police continued to
question him after he requested an attorney. (Id. at 8.) Thus, there was no
suppression issue because appellant waived his Miranda rights, and trial
counsel was never made aware of any potential suppression issue. Clearly,
there is no basis for an ineffectiveness claim under these circumstances.
Accordingly, having found no error in the issues raised on appeal, we
will affirm the order below.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2015
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