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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL ANDREW CLOUSE,
Appellant No. 2619 EDA 2012
Appeal from the PCRA Order August 21, 2012
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002079-2010
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 13, 2014
Michael Andrew Clouse appeals from the August 21, 2012 order
denying him PCRA relief. We affirm.
Appellant was charged with various offenses in connection with a
traffic accident that occurred at around 7:00 p.m. on February 18, 2010.
intersection of Lil Wolf Circle and Lil Wolf Drive, North Whitehall Township.
boyfriend, Anthony Earl, lived close to the accident site, heard Ms. Buskirk
screaming, and arrived at the scene of the accident before police. He
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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followed the wet tire tracks left by the red pickup truck to 4202 Silver Fox
Court, where it was parked. Ms. Buskirk gave police a partial license plate
number and stated that the operator was a white male in his late 30s with
dark unkempt hair. Police then met with Mr. Earl, who directed them to
4202 Silver Fox Court and the truck parked in its driveway.
At approximately 7:45 p.m., police interviewed the resident of 4201
Silver Fox Court, Christopher Walz, who said that Michael Clouse lived at
4202 Silver Fox Court and used the red pickup truck parked there. Police
approached 4202 Silver Fox Court and observed Appellant sleeping on the
photograph, and she identified him as the driver of the vehicle that struck
her.
Police returned to 4202 Silver Fox Court at 8:20 p.m. and roused
Appellant, who appeared intoxicated. Appellant failed field sobriety tests,
was arrested and transported to the hospital where his blood was drawn.
His blood alcohol content was .34%. At t
privileges were suspended DUI related.
On April 25, 2011, Appellant pled guilty to driving under the influence,
highest rate of alcohol, as a third offense. He was sentenced to one to five
years imprisonment. That sentence was imposed concurrently to a sentence
resulting from the revocation of an earlier probationary term. Specifically,
Appellant pled guilty to simple assault at Lehigh County criminal action
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number 267-2010, and received six months probation on April 6, 2010.
Thus, when he was convicted herein, that offense resulted in a violation of
probation in the simple assault case. Appellant admitted to the violation,
and he was sentenced to three to twelve months therein.1
On April 17, 2012, Appellant filed a timely PCRA petition in which he
sought to withdraw his April 25, 2011 guilty plea to DUI entered in the
relief from his plea because: 1) the trial court lacked jurisdiction over his
criminal convictions committed in Lehigh County; 2) he was not informed of
his status as a citizen; 3) he was not charged by a grand jury; and 4) there
were unspecified due process violations during the proceedings. Counsel
was appointed and filed an amended petition. That petition raised a single
counsel because counsel told him that if he was convicted at a jury trial, he
would receive a sentence of two and one-half to five years in jail, and
because counsel was not prepared to go to trial.
The matter proceeded to a hearing on August 21, 2012. At that
hearing, Appellant stated that he wanted to withdraw the PCRA petition.
That desire was premised upon the following. Appellant was due to be
paroled to a halfway house but had to be physically present in the state
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1
The present appeal involves only the DUI case.
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prison in order to be released. Since he was located in the county facility to
appear at the PCRA hearing, Appellant wanted to be immediately transferred
so that he would be eligible for release.
After some discussion over whether it would be physically feasible to
transfer Appellant in time for his release date, which appeared doubtful from
the record of the PCRA proceeding, the court indicated that it would attempt
to ensure that Appellant would be transported. The PCRA court then granted
8/21/13, at 13-14. Appellant filed a pro se appeal from the August 21, 2013
order granting his petition to withdraw the PCRA petition.
We thereafter ordered a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998). Appellant then elected to proceed with
private counsel, who filed a petition for transcription of the pertinent
hearings and a motion for remand of the record. That relief was granted
without formal disposition of the two motions. Counsel then filed with this
Court a petition to withdraw and no-merit brief pursuant to Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa.Super. 1988) (en banc). In the no-merit letter, counsel
concluded that any issues raised in the timely PCRA petition were waived
when Appellant requested and was granted the right to withdraw it. Counsel
also opined that, even if not waived, the issues did not warrant relief.
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Initially, we examine whether counsel satisfied the procedural
requirements for withdrawal. Commonwealth v. Doty, 48 A.3d 451
(Pa.Super. 2012):
Counsel petitioning to withdraw from PCRA representation
must proceed under Turner, supra and Finley, supra and
must review the case zealously. Turner/Finley counsel must
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appeal to this Court, detailing the nature and extent of counsel's
diligent review of the case, listing the issues which petitioner
wants to have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that
satisfy the technical demands of Turner/Finley, the court trial
court or this Court must then conduct its own review of the
merits of the case. If the court agrees with counsel that the
claims are without merit, the court will permit counsel to
withdraw and deny relief.
Id. at 454 (citation omitted).
Herein, counsel indicates in his petition to withdraw that he reviewed
sentencing, and PCRA hearings. He represents that the appeal from the
dismissal of the PCRA petition is without merit. In the no-merit letter,
counsel details that any contention in the PCRA petition was waived when
Appellant asked to withdraw that petition. Counsel further indicates that,
even if not waived, based upon his review of the guilty plea transcript,
written colloquy, and sentencing transcript, he believes that the issues
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presented in the PCRA petition lacked merit. The no-merit letter delineates
the legal basis for these opinions. Counsel advised Appellant by letter of his
assessment of the appeal, that he petitioned this Court to withdraw as
counsel, and that Appellant had the right to proceed pro se or with privately-
retained counsel.
Thus, counsel has satisfied the procedural requirements for
withdrawal. We now examine the merits. We first confront the question of
whether there are any issues preserved for appeal. While Appellant
specifically asked to withdraw his PCRA petition at a hearing, we do not view
that action, in the context of the present circumstances, as constituting
transported to state prison in time for his release date to the halfway house.
Given that Appellant subsequently filed an appeal from the grant of his
motion to withdraw the PCRA petition, we could assume that he was not
released on parole into a halfway house. The PCRA transcript supports that
Appellant was unlikely to be timely transferred to state prison.
Additionally, it was unnecessary to withdraw the petition in the first
instance. If Appellant needed a transfer to state prison, that action could
have occurred without withdrawal of the petition. The appropriate action
would have been for counsel to ask that the hearing be postponed rather
than to totally abandon the request for PCRA relief.
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The withdrawal of a PCRA petition will operate as a waiver of all issues
so long as that withdrawal is knowing and voluntary. See Commonwealth
Williams, 828 A.2d 981, 987-88 (Pa. 2003); Commonwealth v. Shaffer,
leave to amend or withdraw a petition for post-conviction collateral relief at
not informed of the consequences of withdrawal that he would not be
eligible to receive review of his contentions if he failed to be paroled. In the
absence of an informed waiver, we cannot rule that the present withdrawal
constitutes waiver. We therefore proceed to analyze the claims raised.
an order denying post-conviction relief is limited to whether the trial court's
determination is supported by evidence of record and whether it is free of
Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014). The
rs a guilty plea, he or she
waives all defects and defenses except those concerning the validity of the
plea, the jurisdiction of the trial court, and the legality of the sentence
Commonwealth v. Stadley, 50 A.3d 769, 771 (Pa.Super.
2012).
In the pro se petition, Appellant raised two jurisdictional challenges
pertaining to the voluntariness of his plea. Counsel herein correctly outlines
the issues raised in the pro se PCRA petition and establishes their frivolity.
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First, Appellant maintained that the trial court lacked subject matter
court to hear and adjudicate the type of controversy presented. Jurisdiction
is purely a question of law; the appellate standard of review is de novo and
Commonwealth v. Seiders, 11 A.3d 495,
496-97 (Pa.Super. 2010). The court of common pleas within this
Commonwealth possesses subject matter jurisdiction to resolve cases arising
under the Pennsylvania Crimes Code if that jurisdiction, except in limited
situations, is exercised within the territorial boundaries of the judicial district
in which the court sits. Commonwealth v. Bethea, 828 A.2d 1066, 1075
Lehigh County, and the court of common pleas of Lehigh County had
jurisdiction over the matter. This position is therefore without merit.
Appellant also raised the issue of a lack of a grand jury indictment.
Pursuant to a 1976 amendment, the Pennsylvania Constitution now permits
criminal prosecution of an individual through an information rather than an
indicting grand jury in any county given approval to proceed by information
rather than grand jury. Commonwealth v. Webster, 337 A.2d 914 (Pa.
which have obtained the approval of the Supreme Court to provide for the
initiation of criminal proceedings by informations instead of by grand jury
indictments, shall possess and exercise the same power and jurisdiction as
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they heretofore possessed in cases of prosecutions upon indi
Lehigh County is permitted to proceed by information, it had jurisdiction
herein even though Appellant was not indicted by a grand jury.
Appellant also averred that his plea was unknowing and involuntary
since he was not aware of the nature of the proceedings and charges and
since he was not informed of his citizen status. Pa.R.Crim.P. 590(A)
requires a guilty plea to be accepted in open court. A judge is not permitted
to accept the guilty plea until he determines that the plea is voluntarily and
understandingly tendered and that assessment must appear on the record.
Pa.R.Crim.P. 590(A)(3). The comment to Pa.R.Crim.P. 590 indicates that it
codified prior law containing these mandates, and further indicates:
At a minimum the judge should ask questions to elicit the
following information:
(1) Does the defendant understand the nature of the
charges to which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the
right to trial by jury?
(4) Does the defendant understand that he or she is
presumed innocent until found guilty?
(5) Is the defendant aware of the permissible range of
sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by
the terms of any plea agreement tendered unless the judge
accepts such agreement?
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(7) Does the defendant understand that the
Commonwealth has a right to have a jury decide the degree of
guilt if the defendant pleads guilty to murder generally?
In this case, the court set forth that Appellant was pleading guilty, the
factual basis for the guilty plea, and the offense to which Appellant pled
guilty. N.T. Guilty Plea and Sentence, 4/25/11, at 1, 4. Appellant
represented that he read and understood his written guilty plea colloquy
wherein he admitted that the elements of driving under the influence of
alcohol were explained to him. Thus, his position that he was not aware of
the nature of the proceedings and charges is refuted by the record.
As outlined above, a defendant does not have to be informed of his
citizen status in order to enter a knowing and voluntary guilty plea.
mplicate the fact that entry of
a guilty plea to certain offenses can result in deportation. Hence, if a
resident alien pleads guilty, he must be informed about the consequences of
the plea on his ability to remain in the United States. Padilla v. Kentucky,
559 U.S. 356 (2010). However, Appellant is an American citizen. Thus,
guilty plea because he cannot be deported.
We have reviewed the unspecified due process allegations raised in the
pro se petition and find that PCRA counsel correctly concluded that they
lacked merit. Appellant had the assistance of counsel, and, after a complete
colloquy, admitted that he committed the offense in question.
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As required by the above-cited case law, we now must conduct our
own review of the merits of the case. We have discovered one other issue
presented to the PCRA court. That issue was raised in the amended PCRA
petition by appointed counsel. The allegation therein was that Appel
guilty plea was unlawfully induced because plea counsel was unprepared for
trial and forced Appellant to plead guilty by threatening Appellant that he
would receive a higher sentence if he proceeded to trial.
To prevail on a claim alleging counsel's ineffectiveness
under the PCRA, Appellant must demonstrate (1) that the
underlying claim is of arguable merit; (2) that counsel's course
of conduct was without a reasonable basis designed to effectuate
his client's interest; and (3) that he was prejudiced by counsel's
ineffectiveness, i.e. there is a reasonable probability that but for
the act or omission in question the outcome of the proceedings
would have been different.
It is clear that a criminal defendant's right to effective
counsel extends to the plea process, as well as during trial.
However, allegations of ineffectiveness in connection with the
entry of a guilty plea will serve as a basis for relief only if the
ineffectiveness caused the defendant to enter an involuntary or
unknowing plea. Where the defendant enters his plea on the
advice of counsel, the voluntariness of the plea depends on
whether counsel's advice was within the range of competence
demanded of attorneys in criminal cases.
Commonwealth v. Timchak, 69 A.3d 765, 769-70 (Pa.Super. 2013)
(quoting Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012)).
affirmatively stated at the colloquy that it was his choice to plead guilty and
that no one forced or threatened him into entering the plea. N.T. Guilty
Plea, 4/25/11, at 3. Appellant also indicated that he was satisfied with his
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Id. at 3-
colloquy. Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa.Super. 2013).
In this case, Appellant stated at the plea colloquy that his plea was not
coerced and that he was satisfied with his attorney. He thus cannot now
withdraw his guilty plea based upon contrary assertions. We thus concur,
after an independent review of the record, that there are no issues of merit
and that counsel may withdraw.
Application for Remand of the Record dated December 12, 2012 is dismissed
as moot. The application of Charles A. Banta, Esquire, to withdraw as
counsel is granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2014
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