Com. v. Parnes, J.

J-S62027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH L. PARNES,
Appellant No. 2854 EDA 2013
Appeal from the PCRA Order of September 18, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000407-2012
BEFORE: ALLEN, OLSON AND OTT, JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 08, 2014
Appellant, Joseph L. Parnes, appeals from the order entered on
September 18, 2013, denying his petition filed under the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The factual background of this case is as follows. On December 2,
2011, Appellant slashed the tire of a vehicle owned by Martin Tallent
("Tallent"). After Tallent called police, Appellant threated to stab Tallent,
throw him down the stairs, and beat him to within an inch of his life.
The procedural history of this case is as follows. On December 3,
2011, Appellant was charged via criminal complaint with making terroristic
threats, criminal mischief, and harassment. A criminal information charging
those same offenses was filed on February 16, 2012. On March 22, 2012,
pursuant to a plea agreement, Appellant pled guilty to making terroristic
J-S62027-14
threats and criminal mischief. In return for his plea, the harassment charge
was dismissed. Appellant was immediately sentenced to an aggregate term
of three years of probation. Appellant did not file a direct appeal.
On February 15, 2013, Appellant filed a counseled PCRA petition. An
evidentiary hearing was held on August 9, 2013. On September 18, 2013,
the PCRA court denied Appellant’s petition. Appellant timely appealed.
Appellant’s privately retained counsel then sought leave from this Court to
withdraw from representing Appellant. We granted counsel’s request and
remanded for a determination of whether Appellant was entitled to court-
appointed counsel. On February 12, 2014, the PCRA court determined that
Appellant was not entitled to appointed counsel. Appellant then retained
new counsel who complied with the PCRA court’s order to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
Appellant’s lone issue on appeal was included in his concise statement.
Appellant presents one issue for our review:
Whether the decision of the [PCRA court, denying] Appellant’s
PCRA petition, constituted abuse of discretion and error of law,
where Appellant’s trial counsel failed to adequately and
effectively explore Appellant’s admission into [] Accelerated
Rehabilitative Disposition (“ARD”) [], where there was a
reasonable probability that proper application and review by the
District Attorney would have culminated in Appellant’s admission
into [] ARD[?]
Appellant’s Brief at 4 (quotation marks added).
“Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s findings of fact, and whether the PCRA
-2-
J-S62027-14
court’s determination is free of legal error.” Commonwealth v. Wantz, 84
A.3d 324, 331 (Pa. Super. 2014) (citation omitted). “The scope of review is
limited to the findings of the PCRA court and the evidence of record, viewed
in the light most favorable to the prevailing party at the trial level.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
Appellant’s claim relates to the purported ineffectiveness of his trial
counsel. A “defendant’s right to counsel guaranteed by the Sixth
Amendment to the United States Constitution and Article I, [Section] 9 of
the Pennsylvania Constitution is violated where counsel’s performance so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” Commonwealth v. Simpson,
66 A.3d 253, 260 (Pa. 2013) (internal quotation marks and citation
omitted). “Trial counsel is presumed to be effective.” Commonwealth v.
Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014) (citation omitted).
In order to overcome the presumption that counsel was effective,
Appellant must establish that “(1) the 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 client’s interests; and (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the proceedings would have been different.” Commonwealth v. Luster,
71 A.3d 1029, 1039 (Pa. Super. 2013) (en banc), appeal denied, 83 A.3d
414 (Pa. 2013) (internal alterations, quotation marks, and citation omitted).
-3-
J-S62027-14
The petitioner bears the burden of proving his counsel was ineffective. See
Commonwealth v. Williams, 980 A.2d 510, 520 n.12 (2009). “A failure to
satisfy any one of the three prongs of the test for ineffectiveness requires
rejection of the claim.” Commonwealth v. Ly, 980 A.2d 61, 73 (Pa. 2009).
Appellant argues that his trial counsel was ineffective for failing to
pursue ARD. We conclude that Appellant has failed to prove the requisite
prejudice to establish a claim of ineffective assistance of counsel. “It is well-
established . . . that district attorneys have the sole discretion in moving for
admission of a defendant into ARD[.]” Commonwealth v. LaBenne, 21
A.3d 1287, 1291 (Pa. Super. 2011) (citation omitted). James Miller
(“Miller”), the supervisor of the district attorney unit responsible for
screening applicants for admission into ARD, testified at the PCRA hearing
that when a victim is opposed to ARD, the defendant “certainly [does not]
get ARD.” N.T., 8/9/13, at 51. He further testified that if the assistant
district attorney assigned to a case states that he or she is adamantly
opposed to an individual receiving ARD, and his or her reasons are sensible,
the defendant would not be permitted to participate in ARD. See id. at 53.
The PCRA court found Miller’s testimony credible. See PCRA Court Opinion,
5/14/14, at 5.
Trial counsel testified at the PCRA hearing that he discussed the
possibility of ARD with the assistant district attorney assigned to the case.
-4-
J-S62027-14
When ARD was discussed, the assistant district attorney gave a “categorical
no.” N.T., 8/9/13, at 63. The assistant district attorney told trial counsel
that “they were taking [the case] very seriously” because of prior charged
and uncharged disputes involving Appellant. Id. at 65. The district attorney
also stated “that the victims were opposed to any kind of ARD[.]” Id. at 66.
Based upon Miller’s and trial counsel’s testimony, the PCRA court concluded
that any failure of trial counsel to apply formally for ARD on behalf of
Appellant was not prejudicial. PCRA Court Opinion, 5/14/14, at 5. It
concluded that even if trial counsel would have formally applied to the
district attorney’s office, the request for ARD would have been denied. See
id.
The PCRA court’s conclusion is clearly supported by the record. Miller
testified that, if the assistant district attorney assigned to the case had a
sensible reason for objecting to a defendant receiving ARD, then his office
would not approve an application for ARD. The assistant district attorney’s
reasoning for opposing ARD for Appellant, his history of charged and
uncharged behavior, was clearly sensible. Likewise, Miller testified that
when a victim opposes ARD his office does not approve a defendant’s ARD
application. The assistant district attorney stated that the victims in this
case opposed ARD. Accordingly, we agree with the PCRA court that even if
Appellant had applied for ARD he would have been rejected.
-5-
J-S62027-14
Although it is clear that Appellant would not have received ARD had he
applied, we consider whether such a denial would have been an abuse of
discretion. If the district attorney’s denial was an abuse of discretion, then
trial counsel had an obligation to apply for ARD, and then file an appropriate
motion with the trial court if the application were denied.
Appellant, relying upon Commonwealth v. Kiehl, 509 A.2d 1313 (Pa.
Super. 1986), argues that the district attorney cannot summarily reject a
person for ARD consideration. Appellant’s Brief at 14. However, Kiehl
articulates that a district attorney must have a reason for rejecting an
individual’s application for ARD instead of stamping each application denied
without considering the facts of each case. See Commonwealth v. Lutz,
495 A.2d 928, 934–935 (Pa. 1985). As noted above, Miller stated that he
requires assistant district attorneys who oppose ARD to state the reason for
their opposition. This shows that the district attorney does not summarily
reject ARD applications but rejects them based upon policy decisions after
case-by-case consideration. It is not for this Court to second-guess those
policy decisions. See id.
As this Court has explained:
[A]bsent an abuse of [the district attorney’s] discretion involving
some criteria for admission to ARD wholly, patently and without
doubt unrelated to the protection of society and/or the likelihood
of a person’s success in rehabilitation, such as race, religion[,] or
other such obviously prohibited considerations, the attorney for
-6-
J-S62027-14
the Commonwealth must be free to submit a case or not submit
it for ARD consideration based on his view of what is most
beneficial for society and the offender.
Commonwealth v. Corrigan, 992 A.2d 126, 130 (Pa. Super. 2010)
(emphasis removed; citation omitted).
As Appellant correctly notes, it would be an abuse of discretion for the
district attorney to blindly follow the recommendation of an outside
individual, like the victim. See Commonwealth v. Pypiak, 728 A.2d 970,
973 (Pa. Super. 1999). However, in this case the evidence was clear that
even if the victim had not opposed ARD, Appellant would not have received
ARD because of his prior charged and uncharged conduct. This was based
upon the district attorney’s own review of the record, and not based upon
the outside recommendation of any individual. Appellant’s prior charged and
uncharged conduct clearly relates to what is most beneficial for both society
and Appellant. Therefore, it would not have been an abuse of discretion on
the part of the district attorney to deny Appellant's request for ARD. Thus,
even if trial counsel had requested ARD, the district attorney would have
denied Appellant’s request and the trial court could not compel the district
attorney to accept Appellant’s application. Accordingly, any failure by trial
counsel to file a formal application for ARD did not prejudice Appellant.
-7-
J-S62027-14
Finally, Appellant argues that the Delaware County District Attorney’s
amended policies with respect to consideration of ARD applications should
apply retroactively. Appellant correctly notes that an appellant will normally
be given the benefit of a change in the law while his direct appeal is
pending. Appellant, however, confuses a direct appeal with an appeal from
the denial of a petition for collateral review. A direct appeal is one taken
from the judgment of sentence -- it is not an appeal taken from an order
denying PCRA relief (as in the present case). Except in very limited
circumstances not implicated in this case, an appellant is not afforded the
retroactive effect of a change in the law when that change occurs after his
judgment of sentence becomes final. Therefore, Appellant’s reliance on the
Delaware County District Attorney’s amended policies with respect to
consideration of ARD is misplaced.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2014
-8-