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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DON LEE HOWES, JR.
Appellant No. 1475 WDA 2013
Appeal from the Judgment of Sentence dated August 19, 2013
In the Court of Common Pleas of Fayette County
Criminal Division at No: CP-26-CR-0000259-2012
BEFORE: PANELLA, MUNDY, and STABILE, JJ.
JUDGMENT ORDER BY STABILE, J.: FILED SEPTEMBER 17, 2014
Appellant, Don Lee Howes, Jr., appeals from a judgment of sentence of
the Court of Common Pleas of Fayette County (“trial court”), which,
following a jury trial, convicted him of fleeing or attempting to elude a police
officer, driving under the influence, and habitual offenders under Sections
3733(a), 3802(a)(1) and 6503.1 of the Vehicle Code.1 In addition, the trial
court convicted Appellant of driving with a suspended license under Section
1545(b)(1) of the Vehicle Code.2 Appellant also pleaded guilty to violating
Section 4303(b) of the Vehicle Code, relating to a vehicle’s rear lighting
system.3 Because Appellant raises only claims of ineffectiveness of counsel,
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1
75 Pa.C.S. §§ 3733(a), 3802(a)(2) and 6503.1, respectively.
2
75 Pa.C.S. § 1543(b)(1).
3
75 Pa.C.S. § 4303(b).
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we dismiss this appeal without prejudice to Appellant should Appellant
decide to include and potentially further develop this claim in a timely filed
petition pursued under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-
9546.
On appeal, Appellant’s sole argument is that his trial counsel was
ineffective to the extent the counsel permitted Appellant’s “driver record to
be taken into the jury deliberation room.” Appellant’s Brief at 10. With
respect to arguments that implicate ineffective assistance of counsel claims,
our Supreme Court recently articulated that, absent either good cause or
exceptional circumstances and a waiver of post-conviction review, such
claims must await collateral review. Commonwealth v. Holmes, 79 A.3d
562, 563 (Pa. 2013). Instantly, because Appellant raises his ineffectiveness
claim on direct appeal and because the claim does not fall into either
exception discussed above, we must dismiss his claim under Holmes.4
Judgment of sentence affirmed.
Judgment Entered.
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4
On May 29, 2014, we issued a Judgment Order by which we, inter alia,
directed the trial court to order Appellant to file a Rule 1925(b) statement
nunc pro tunc under Pa.R.A.P. 1925(c)(3). In the Judgment Order, we
specifically noted for Appellant’s benefit that, absent good cause and a
waiver of post-conviction review, claims of ineffectiveness of counsel may
not be raised on direct appeal and, therefore, must await collateral review.
Judgment Order, 5/29/14, at 2 n.4. Nonetheless, Appellant, once again,
attempts in this direct appeal to raise ineffectiveness claims.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2014
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