Com. v. Oree, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOEL OREE :
:
Appellant : No. 2029 EDA 2021
Appeal from the PCRA Order Entered April 15, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000859-2014
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED AUGUST 8, 2023
Appellant, Joel Oree, appeals from an order entered on April 15, 2021
in the Criminal Division of the Court of Common Pleas of Philadelphia County
that denied his petition filed pursuant to the Post-Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
Because the issue in this appeal focuses exclusively upon the advice
given by trial counsel concerning Appellant’s election to proceed by way of a
waiver trial, and not before a jury, we shall dispense with a recitation of the
historical facts underlying Appellant’s convictions. Instead, we incorporate
our prior recitation of the relevant events, which we set forth in the context
of direct appeal. See Commonwealth v. Oree, 2017 WL 2259028, *1 (Pa.
Super. 2017) (unpublished memorandum).
At the conclusion of a waiver trial on February 5, 2015, the court found
Appellant guilty of rape, involuntary deviate sexual assault (IDSI), sexual
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assault, indecent exposure, and indecent assault. Thereafter, on August 21,
2015, the trial court sentenced Appellant to seven to 14 years' incarceration
followed by six years' probation for the rape conviction, and two concurrent
terms of 10 years' probation for the IDSI and sexual assault convictions. All
of Appellant’s terms of probation were imposed concurrently and no further
penalty was imposed for Appellant’s other convictions.
Appellant timely filed a notice of appeal after the trial court denied his
post-sentence motion. On May 23, 2017, this Court held that the trial court
erred in imposing a separate sentence on Appellant’s sexual assault
conviction, which should have merged with the rape and IDSI convictions.
See Oree, 2017 WL 2259028, at *3. We found remand to be unnecessary,
however, because the trial court imposed concurrent sentences on the sexual
assault and IDSI convictions and vacating the judgment of sentence for sexual
assault did not affect the overall sentencing scheme. See id.Appellant filed his first PCRA petition on October 30, 2017. On January
31, 2019, appointed counsel filed an amended petition alleging that trial
counsel was ineffective in advising Appellant to waive his right to a jury trial.
The PCRA court convened an evidentiary hearing on February 7, 2020.
Appellant, his daughter, and trial counsel testified at the hearing. Both
Appellant and his daughter testified that they told trial counsel that Appellant
wished to proceed before a jury. Appellant conceded that, on the day of trial,
he executed a written waiver and orally informed the trial court that he wanted
a bench trial. Appellant explained, however, that he made this election on the
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advice of trial counsel and felt that he had no alternative. Trial counsel
testified that he explained his fee structure to both Appellant and his daughter
and made clear to them that he could not represent Appellant at a jury trial,
given the financial resources available to Appellant and his family. Trial
counsel also testified that he advised both Appellant and his daughter that
Appellant would be ably represented at either a jury trial or a waiver trial if he
accepted the appointment of a public defender. The PCRA court credited the
testimony of trial counsel and, on April 15, 2021, dismissed Appellant’s
petition. Eventually, Appellant filed a notice of appeal on September 1, 2021.
Appellant raises the following question for our review.
Did the [PCRA] court err in dismissing Appellant’s post-conviction
relief petition where the record indicated that trial counsel was
ineffective for misadvising Appellant to waive his right to a jury
trial because Appellant could not afford [one]?
Appellant’s Brief at 3.
We first consider whether we have jurisdiction over the merits of
Appellant’s claim, a question we may raise sua sponte. See Commonwealth
v. Valentine, 928 A.2d 346, 349 (Pa. Super. 2007). Appellant’s judgment of
sentence became final for purposes of the PCRA on June 22, 2017, 30 days
after this Court affirmed the judgment on May 23, 2017, within the context of
direct appeal. See 42 Pa.C.S.A. § 9545(b)(3) (“For purposes of [the PCRA],
a judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
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review.”). On October 30, 2017, Appellant filed his first, timely PCRA petition.
Following several continuances, the filing of amended petitions, and an
evidentiary hearing, the PCRA court dismissed Appellant’s petition on April 15,
2021. No appeal was filed within 30 days.
On June 1, 2021, counsel for Appellant filed a second PCRA petition,
seeking reinstatement of Appellant’s right to appeal the denial of his original
petition. Appellant’s second petition alleged that Appellant requested an
appeal of the order dismissing his first petition, but no appeal was taken due
to clerical error. On August 11, 2021, the PCRA court granted Appellant’s
second petition and reinstated Appellant’s right to appeal the April 15, 2021
dismissal order. Counsel for Appellant then filed a notice of appeal on
September 1, 2021.
Appellant’s second petition was patently untimely, as it was filed more
than one year after Appellant’s judgment of sentence became final on June
22, 2017. See 42 Pa.C.S.A. § 9545(b)(1) (“[a]ny petition under [the PCRA],
including a second or subsequent petition, shall be filed within one year of the
date the judgment becomes final”). Here, Appellant asked counsel to appeal
the dismissal of his first petition, but counsel failed to do so owing to clerical
error. Appellant’s second petition alleged that the failure to appeal was
unknown to Appellant, which implicated one of the timeliness exceptions
included in the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Our Supreme Court
has recognized that the discovery of counsel’s ineffectiveness can constitute
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an unknown fact that triggers the timeliness exception set forth at Section
9545(b)(1)(ii). See Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa.
2007) (observing that the failure of counsel to file a requested appeal “is the
functional equivalent of having no counsel at all,” which “requires a finding
of prejudice”) (emphasis in original). In addition, Appellant filed his second
PCRA petition on June 1, 2021, which was within one year of his discovery
that counsel failed to appeal from the April 15, 2021 dismissal order. See 42
Pa.C.S.A. § 9545(b)(2). The PCRA court granted Appellant’s second petition
on August 11, 2021 and counsel filed a notice of appeal on September 1,
2021, within 30 days of the court’s reinstatement order. See Pa.R.A.P. 903
(notice of appeal shall be filed within 30 days after entry of order from which
appeal is taken). Under these circumstances, we conclude that Appellant
validly invoked an exception to the PCRA’s one-year time bar and that we
have jurisdiction to reach the merits of this timely-filed PCRA appeal.1
____________________________________________
1 Generally, Pennsylvania courts do not permit counsel to litigate his own
ineffectiveness. See Commonwealth v. Spotz, 18 A.3d 244, 329 n.52 (Pa.
2011). Counsel here, however, is not “litigating” the clerical error which led
to his failure to timely appeal the April 15, 2021 dismissal order. Instead,
counsel’s self-accusation was clearly meritorious, which is confirmed by the
June 1, 2021 PCRA court order that granted relief, and centered on a relatively
insignificant feature of these proceedings. In short, we see no reason to view
counsel’s self-accusation as an impediment to appellate review under the
circumstances before us. See Commonwealth v. Bond, 819 A.2d 33, 39
n.2 (Pa. 2002) (observing that it would be inappropriate to remove counsel
based upon mere boilerplate assertions of their own incompetence).
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Appellant claims that trial counsel was ineffective in advising Appellant
to waive his right to a jury trial, given that counsel could not represent
Appellant before a jury in exchange for the financial resources available to
Appellant, and in allegedly failing to advise Appellant that he could retain other
counsel. This claim merits no relief.
We apply the following standard of review to an order denying or
dismissing a petition for collateral relief.
When reviewing the denial of a PCRA petition, we must determine
whether the PCRA court's order is supported by the record and
free of legal error. Generally, we are bound by a PCRA court's
credibility determinations. However, with regard to a court's legal
conclusions, we apply a de novo standard.
Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (quotation
marks and quotations omitted). The findings of the PCRA court are “viewed
in the light most favorable to the prevailing party.” Commonwealth v.
Duffy, 889 A.2d 56, 61 (Pa. 2005). Moreover, these findings “will not be
disturbed unless there is no support for the findings in the certified record.”
Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017).
Also,
In order to be eligible for PCRA relief, the petitioner must prove
by a preponderance of the evidence that his conviction or sentence
resulted from one or more of the enumerated circumstances found
in Section 9543(a)(2), which includes the ineffective assistance of
counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).
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 that such deficiency
prejudiced him. To prevail on an ineffectiveness claim, the
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petitioner has the burden to prove that (1) the underlying
substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis
for his or her actions or failure to act; and (3) the petitioner
suffered prejudice as a result of counsel's deficient performance.
The failure to satisfy any one of the prongs will cause the entire
claim to fail.
Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa. Super. 2016)
(quotation marks, quotations, and citations omitted).
Turning to the merits of Appellant’s precise claim, our Supreme Court
has observed that:
[t]he essential elements of a jury waiver, though important and
necessary to an appreciation of the right, are nevertheless simple
to state and easy to understand. 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, 696–697 (Pa. 2008) (footnote,
citations, and quotation omitted).
At trial, Appellant executed a written waiver colloquy and responded in
the affirmative when asked whether he knew and understood the critical
components of a jury trial, whether he discussed these issues with counsel,
whether he comprehended the importance of the rights subject to waiver, and
whether he intended to waive those rights freely. Detailed, written waivers
that are signed and presented in court are generally accorded prima facie
validity. See id. at 704.
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“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 . . . must focus on the totality of
relevant circumstances.” Id. at 698. “Those circumstances include the
defendant's knowledge of and experience with jury trials, his explicit written
waiver (if any), and the content of relevant off-the-record discussions counsel
had with his client.” Id. “Counsel's advice to waive a jury trial can be the
source of a valid claim of ineffective assistance of counsel only when [] counsel
interferes with his client's freedom to decide to waive a jury trial [or when a
defendant] can point to specific advice of counsel so unreasonable as to vitiate
the knowing and intelligent waiver of his right.” See Commonwealth v.
Hooks, 394 A.2d 528, 532 (Pa. 1978). To demonstrate prejudice, the
defendant must show a reasonable probability that, but for counsel's
constitutionally deficient representation, the outcome of the waiver
proceeding would have been different, i.e., that the defendant would not have
waived his right to a jury trial. See Mallory, 941 A.2d at 697.
Based upon the totality of circumstances established by the certified
record, we agree with the PCRA court that Appellant is not entitled to relief
because he knowingly and voluntarily relinquished his right to a jury trial and
understood his options when he retained private counsel who could not
represent him at a jury trial. There was ample testimony that allowed the
PCRA court to conclude that Appellant was familiar with the criminal justice
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system since he previously used the services of the public defender’s office.
Based upon this evidence, the court inferred that Appellant understood “how
to contact the public defender and retain their services.” Trial Court Opinion,
7/29/22, at 5. In fact, Appellant admitted he was aware he could switch
attorneys. See N.T. PCRA Hearing, 2/7/20, at 18. Rather than accept
representation by the public defender (who could represent Appellant at a jury
trial), Appellant knowingly and willingly declined their services and hired
private counsel who explained that he could not represent Appellant at a jury
trial, given the financial resources Appellant and his family could afford to
spend on this matter. In short, Appellant asks us to reweigh the testimony
and reject the well-supported findings of the PCRA court. We are unwilling to
do so. Since counsel did not interfere with Appellant’s freedom to waive a
jury trial and since Appellant has pointed to no specific advice of counsel that
vitiated a knowing and intelligent waiver of Appellant’s right to a jury trial, we
affirm the order that denied Appellant’s petition for collateral relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2023
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