Com. v. Burton, C.

J-S49002-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CARL THOMAS BURTON
Appellant No. 1217 EDA 2012
Appeal from the PCRA Order April 11, 2012
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003653-2006
BEFORE: OLSON, OTT and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 24, 2014
Appellant, Carl Thomas Burton, appeals from an order entered on April
11, 2012 that denied his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The factual history and procedural background in this case are as
follows. On December 17, 2005, at approximately 1:20 a.m., Officer Robert
Whitaker of the Chester Police Department was patrolling the corner of Ninth
and Holland Streets in the City of Chester. At that time, Officer Whitaker
heard approximately three to five gunshots emanating from a location near
Reflections Bar, which is located at the corner of Ninth and Grace Streets.
Officer Whitaker proceeded in his marked police cruiser to the 800
block of Grace Street in approximately 30-40 seconds. This location was one
block from Reflections Bar. Two other officers in separate police vehicles
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also proceeded to the 800 block of Grace Street. The three police vehicles
pulled up in succession, with Officer Whitaker arriving in the first car.
Officer Whitaker illuminated the spotlight on his vehicle when he
arrived at the scene. Upon his arrival, Officer Whitaker saw Appellant
talking to the driver of a blue Kia Spectra through the passenger-side
window. Officer Whitaker then saw Appellant begin to get into the
passenger compartment of the blue Kia Spectra. Officer Whitaker described
Appellant’s entry into the passenger-side door as “real quick [-] like he was
nervous.” N.T., 3/8/07, at 16.
Appellant’s left foot was in the Kia Spectra when Officer Whitaker
approached and asked him to step back from the vehicle. Officer Whitaker
placed his left hand on the back of Appellant’s leg and told Appellant he was
going to conduct a pat-down search. Officer Whitaker directed Appellant to
place his hands on top of the car. The officer informed Appellant that he
was investigating gun shots in the area. When Officer Whitaker asked
Appellant for his name, Appellant refused to provide it.
Thereafter, Officer Whitaker commenced a pat-down search of
Appellant. During the search, Officer Whitaker felt the handle of a gun in
Appellant’s waistband. Officer Whitaker seized the weapon, gave it to one of
the assisting officers, and placed Appellant in custody.
The Commonwealth charged Appellant with firearms not to be carried
without a license (18 Pa.C.S.A. § 6106(a)(1)) and persons not to possess
firearms (18 Pa.C.S.A. § 6105(a)(2)). Trial counsel filed a motion to
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suppress the gun, challenging Appellant’s detention and subsequent search
under the Fourth Amendment of the United States Constitution and Article 1,
Section 8 of the Pennsylvania Constitution. After a suppression hearing on
March 8, 2007, the trial court entered an order denying the motion.
Appellant proceeded to a bench trial on stipulated facts. At the
conclusion of trial on April 20, 2007, the court found Appellant guilty of the
above-referenced crimes. On June 26, 2007, the trial court imposed a state
sentence totaling five to 10 years of confinement.
Appellant filed a direct appeal to this Court on July 27, 2007. We
affirmed Appellant’s judgment of sentence on June 6, 2008.
Commonwealth v. Burton, 959 A.2d 457 (Pa. Super. 2008) (unpublished
memorandum). Appellant requested that counsel file a petition for
allowance of appeal with the Supreme Court, but no petition was submitted.
Appellant filed a pro se petition for collateral relief on December 18,
2008. The PCRA court appointed new counsel who filed an amended petition
on June 30, 2009. The amended petition sought nunc pro tunc
reinstatement of Appellant’s right to petition the Supreme Court for further
review. On July 9, 2009, the PCRA Court granted the amended petition and
directed counsel to file a petition for allowance of appeal within 30 days.
Counsel timely filed a petition for allowance of appeal. On February 23,
2010, however, the Supreme Court denied the petition.
On February 14, 2011, Appellant filed a timely pro se PCRA petition,
his first request for substantive collateral relief. Counsel was appointed, an
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amended petition was filed, and the Commonwealth answered the amended
petition. Thereafter, on February 21, 2012, the PCRA court issued notice of
its intent to dismiss Appellant’s amended petition without a hearing pursuant
to Pa.R.Crim.P. 907. On April 11, 2012, the PCRA court entered an order
denying Appellant’s request for collateral relief.
Appellant filed a timely notice of appeal on April 18, 2012.1 On April
25, 2012, the PCRA court issued an order pursuant to Pa.R.A.P. 1925(b)
directing Appellant to file a concise statement of errors complained of on
appeal. Appellant filed a pro se concise statement on May 14, 2012 and the
PCRA court issued its opinion on June 19, 2012.
Appellant’s counseled brief raises the following question for our
review:
Whether the PCRA [c]ourt erred in dismissing [Appellant’s] PCRA
[petition] without a hearing where he was denied the effective
assistance of counsel, where trial counsel improperly advised
him to waive his constitutional right to a jury trial or contested
non-jury trial by proceeding with a stipulated bench trial that
would automatically render a finding of guilt so he could
expeditiously effectuate pursuit of his direct appeal rights?
Appellant’s Brief at 4.
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1
On April 20, 2012, Appellant raised claims of ineffectiveness against
appointed PCRA counsel and requested new representation. We remanded
this matter to the PCRA court. The case was reassigned to a new judge who
granted prior PCRA counsel leave to withdraw and appointed present counsel
to represent Appellant.
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Appellant alleges that the PCRA court erred in denying his request for
collateral relief. In support of this contention, Appellant claims that trial
counsel was ineffective in failing to ensure that Appellant knowingly,
intelligently, and voluntarily waived his right to a jury trial, or a contested
non-jury trial.2 According to Appellant, trial counsel never explained to him
the nature and essential components of his right to a jury trial. Instead,
counsel induced him to waive his rights to a contested trial and encouraged
him to agree to a stipulated bench trial in order to pursue expedited
appellate review of the trial court’s suppression order. Appellant claims that
he derived no benefit from trial counsel’s strategy since the direct appeal
process was burdened by delays and because counsel made no effort to
advocate for a reduced or mitigated sentence in view of Appellant’s decision
not to contest the criminal charges against him. Appellant’s claim merits no
relief.
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2
We may dispense with any claim in which Appellant requests collateral
relief based solely upon trial court error in failing to conduct a thorough
waiver colloquy or to establish otherwise that Appellant knowingly and
voluntarily waived his jury trial rights. Such a claim merits no relief within
the PCRA context. Separate and unattached to any claim implicating
counsel’s stewardship, this claim could have been raised on direct appeal but
it was not. Thus, Appellant has waived this claim. See 42 Pa.C.S.A.
§ 9544(b) (“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”); see also Commonwealth v. Michaud,
70 A.3d 862, 873 (Pa. Super. 2013) (PCRA petitioner waives issue of
adequacy of trial court's colloquy concerning his jury trial waiver where
petitioner could have, but failed to raise claim on direct appeal).
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Our standard of review for an order denying collateral relief is well
settled. We have said:
This Court’s standard of review regarding an order
dismissing a petition under the PCRA is whether the
determination of the PCRA court is supported by evidence of
record and is free of legal error. In evaluating a PCRA
court’s decision, our 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. We may affirm a PCRA court’s decision on
any grounds if it is supported by the record.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal
citations omitted). “The PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified record.”
Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citation
omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffectiveness 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is, however, presumed to be effective and “the burden of
demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v.
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Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden,
Appellant must plead and prove by a preponderance of the evidence that:
(1) his 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
interests; and, (3) but for counsel’s ineffectiveness, there is
a reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to
satisfy any prong of the test for ineffectiveness will require rejection of the
claim.” Id. Further, with respect to the second ineffectiveness prong, we
note that counsel’s “chosen strategy will not be found to have lacked a
reasonable basis unless it is proven that an alternative not chosen offered a
potential for success substantially greater than the course actually pursued.”
Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009) (internal quotations
omitted).
Our Supreme Court has observed that the fundamental components of
a jury waiver are straightforward: “The[ ] essential ingredients, basic to the
concept of a jury trial, are the requirements that the jury be chosen from
members of the community (a jury of one's peers), that the verdict be
unanimous, and that the accused be allowed to participate in the selection of
the jury panel.” Commonwealth v. Mallory, 941 A.2d 686, 696 (Pa.
2008) (citation omitted). Furthermore, the Supreme Court has recognized a
criminal defense lawyer’s obligation to consult with a client regarding waiver
of the right to a jury trial:
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Of course, lawyers have an obligation to counsel their clients in
conjunction with the waiver of basic rights, including the waiver
of a jury; but the mere absence of a record oral waiver colloquy
does not automatically prove that a right was relinquished
unknowingly or involuntarily and that the trial lawyer was
ineffective for causing the waiver. When a presumptively-valid
waiver is collaterally attacked under the guise of ineffectiveness
of counsel, it must be analyzed like any other ineffectiveness
claim. Such an inquiry is not resolved by the mere absence of
an oral waiver colloquy; instead, the analysis must focus on the
totality of relevant circumstances.
Mallory, 941 A.2d at 698.
Upon careful review of the relevant facts and circumstances in this
appeal, we are persuaded that Appellant failed to raise a genuine issue of
fact that required a hearing on his ineffectiveness claim. Appellant’s petition
alleged that trial counsel was ineffective in advising him to stipulate to a
bench trial, allow the court to find him guilty, and challenge the court’s
suppression order before this Court. Within his petition, Appellant included a
letter from trial counsel (setting forth the foregoing advice) to support his
claim.3 Neither side disputes that trial counsel would have been the only
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3
In relevant part, counsel’s letter stated:
My suggestion to you is to have a Stipulated Non-Jury Trial,
allow the Judge to find you guilty, and file an immediate Appeal
to the Superior court. In all honesty, it will take us
approximately nine to twelve months to get through the Superior
Court. However, because I am so sure that the case law in this
matter is on your side, I am confident that the Superior Court
appeal is your best option. Quite frankly, you have nothing to
[lose] by pursuing an appeal. [The trial court] is going to
sentence you to five (5) years in jail for this case.
(Footnote Continued Next Page)
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witness called to testify at Appellant’s PCRA hearing and both parties agree
that trial counsel’s letter reflected the substance of any testimony she would
have given. Hence, the trial court correctly determined that the facts of this
case were not in dispute and that a hearing was not necessary. See
Pa.R.Crim.P. 907(2) ( “If the judge is satisfied from [a review of the petition,
the Commonwealth’s answer, and any other matters of record] that there
are no genuine issues concerning any material fact and that the defendant is
not entitled to post-conviction collateral relief, and no purpose would be
served by any further proceedings, the judge shall give notice to the parties
of the intention to dismiss the petition and shall state in the notice the
reasons for the dismissal.”)
We also conclude, as a matter of law, that Appellant cannot prove that
trial counsel was ineffective or that she recommended a strategy that lacked
a reasonable basis designed to advance his interests. The Commonwealth
charged Appellant with persons not to possess a firearm4 and carrying a
firearm without a license. Appellant does not dispute that, on the day that
these offenses occurred, he did not have a license to carry a gun and his
_______________________
(Footnote Continued)
Appellant’s Post-Conviction Relief Act Petition, 2/14/11, Exhibit B.
4
We are skeptical of any strategy that suggests trying a persons not to
possess a firearm charge to a jury. It is a common and widely accepted
practice not to try such claims to a jury because doing so necessarily entails
disclosure of the defendant’s criminal history to the fact finder.
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criminal record forbade his possession of a firearm in this Commonwealth.
Trial counsel immediately recognized that the only strategy that offered
Appellant any hope for an acquittal involved suppression of the firearm.
Accordingly, she filed a motion to suppress. After the trial court denied that
motion, counsel no doubt was aware that, given the undisputed facts in this
case, Appellant’s conviction was a certainty regardless of whether he tried
his claims before a jury, contested this case before the trial court, or
proceeded to a stipulated bench trial. Accordingly, counsel recommended a
strategy aimed at securing prompt appellate review of Appellant’s
suppression claims, as any seasoned criminal defense lawyer would have
done.5 Under these circumstances, Appellant has failed to show that
counsel’s performance fell below that which is demanded from a reasonably
competent trial lawyer. In addition, Appellant has not demonstrated that
counsel’s strategy lacked a sound basis calculated to effectuate his interests.
For each of these reasons, we are compelled to deny relief.
Order affirmed.
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5
We note that a stipulated bench trial, as opposed to a guilty plea,
preserved Appellant’s right to challenge the trial court’s suppression order on
appeal. See Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super.
2013), appeal denied, 87 A.3d 319 (Pa. 2014) (when a defendant pleads
guilty, he waives all non-jurisdictional claims on direct appeal except the
voluntariness of his plea and the legality of his sentence); see also
Commonwealth v. Rachak, 62 A.3d 389, 392 n.1 (Pa. Super. 2012),
appeal denied, 67 A.3d 796 (Pa. 2013).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2014
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