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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHRISTOPHER PETER FICK, :
:
Appellant : No. 2975 EDA 2013
Appeal from the PCRA Order September 26, 2013
In the Court of Common Pleas of Chester County
Criminal Division No(s).: CP-15-CR-0001052-1999
BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 06, 2014
Appellant, Christopher Peter Fick, appeals pro se from the order
entered in the Chester County Court of Common Pleas dismissing without a
hearing his petition filed pursuant to the Post Conviction Relief Act1
second revocation of a probationary term. In this appeal, Appellant raises
several claims of ineffective assistance of trial counsel, as well as the denial
of his rights to written notice of the charges and a speedy probation
revocation hearing. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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The underlying facts of this case are not necessary to our disposition.
On April 17, 2000, Appellant pleaded nolo contendere to burglary and
received a sentence of twelve to twenty-
of 2005, the trial court
revoked and reinstated his probation for the first time, for failing to pay
restitution.
A bench warrant was issued on July 13, 2006 in regard to
four new burglary convictions in the state of New
Jersey[; ] however, [Appellant] was serving a New Jersey
sentence at that time. A detainer was issued on
[Appellant. N]onetheless, due to an unknown
administrative mistake, [Appellant] was released from
custody in New Jersey on August 25, 2009. [Once the
Commonwealth learned of this, o]n April 28, 2010, a bench
warrant was reactivated and executed on June 21, 2011.
Commonwealth v. Fick, 2701 EDA 2011 (unpublished memorandum at 2)
(Pa. Super. filed Jul. 24, 2012) (direct appeal) (quoting Trial Ct. Op.,
1/17/12, at 1-2); see also N.T. 9/6/11, at 3.
On September 6, 2011, the trial court conducted a Gagnon II
hearing2
New Jersey burglary convictions and failing to pay outstanding monies. The
court imposed the underlying sentence
2
Gagnon I hearing is a pre-revocation hearing to determine if probable
cause exists that a violation was committed. After this determination is
made, a Gagnon II hearing is conducted where the Commonwealth is
Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa. Super. 2011)
(citation omitted).
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with credit for time served.
Appellant took a timely appeal with this Court. In an unpublished
memorandum, this Court denied relief and affirmed the judgment of
sentence on July 24, 2012.
On June 11, 2013, Appellant filed the underlying, timely pro se PCRA
petition,3 averring the following: (1) trial counsel failed to state at the
Gagnon II
Appellant met trial counsel for the first time ten minutes before the hearing
and trial counsel had no grasp of the complexities of the case; (4) in trial
Anders4 brief to the Superior Court on direct appeal, trial counsel
aware; (5) the New Jersey Department of Corrections notified the District
3
was the thirty-day deadline for filing a petition for allowance of appeal to the
Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P.
1113(a). Appellant then had until August 23, 2013 to file a PCRA petition
under the general one-year filing period. See 42 Pa.C.S. § 9545(b)(1). As
stated above, the instant petition was timely filed on June 11, 2013.
4
Anders v. California, 386 U.S. 738 (1967).
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Relief, 6/11/13, at 3, 6. We note that trial counsel, P.J. Redmond, Esq., also
represented Appellant in the direct appeal, but was granted leave to
withdraw pursuant to Anders.
The PCRA court appointed counsel to represent Appellant. Counsel
then filed a petition for leave to withdraw pursuant to Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On August 23, 2013,
the court issued notice of intent to dismiss the PCRA petition pursuant to
Pa.R.Crim.P. 907(1). Appellant filed a pro se response, repeating the claims
in his PCRA petition. On September 26, 2013, the court entered the
statement of errors complained of on appeal.
Commonwealth v. Henkel,
90 A.3d 16, 20 (Pa. Super. 2014) (en banc
and prove ineffective assistance of counsel a petitioner must establish: (1)
objective reasonable basis; and (3) actu
Id. at 30 (citations omitted).
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because he met Appellant for the first time ten minutes before the Gagnon
II
was no possible way that an effective defense can be established in 10
In response to this claim, the PCRA court opined that Appellant
changed the outcome of this Gagnon II hearing. The
record clearly shows [Appellant] was convicted of four new
burglaries in the state of New Jersey in 2005 and 2006 . . .
while [he] was on probation in Pennsylvania. The four new
burglary convictions provide dispositive evidence that the
outcome of the [revocation hearing] would have remained
the same.
Notice of Intent to Dismiss PCRA Petition, 8/
We agree. Appellant does not dispute that acquiring new criminal
convictions was grounds for revocation of his probation, nor does he explain
how a purported better-prepared attorney would have overcome a petition
to revoke probation. See
order of probation upon proof of the violation of specified conditions of the
not proven prejudice. See Henkel, 90 A.3d at 30; 907 Notice at 4 n.1.
Appellant next avers trial counsel was ineffective because he should
have been in possession of Chester County docket entries which clearly state
that the Commonwealth rescinded and closed this probation case and
warrant in 2006 and 2007. Appellant contends that counsel either hid these
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prison in New Jersey due to an unknown administrative mistake. Instead,
Id. at 14.
In support, Appellant attaches copies of the trial docket, with emphasis
on these docket entries:
02/14/2006 Do Not Pursue Delinquency
05/17/2006 Pursue Delinquency
07/13/2006 Bench Warrant (Rescinded-Closed)
Violation of Probation
01/29/2007 Do Not Pursue Delinquency
12/11/2007 Pursue Delinquency
and cites two entries dated May 8, 2009:
Spoke with Brian, needs to pull file to find out of [sic] VOP
warrant is still active.
* * *
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Warrant 15-BW-0001515-2008, issued out of Chester Co.
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this violation of probation case and declined to take custody when notified
argument that the Commonwealth had the authority to terminate any
revocation proceedings is mistaken. Instead, Section 9771(a) of the
The court may at any time terminate
continued supervision or lessen or increase the conditions upon which an
order of probation has been
was
executed in New Jersey two days later on July 13th, 2006. [Appellant] was
of him.
Additionally, Appellant fails to persuade this Court that notes or logs in
a purported copy of a New Jersey prison report establishes the
Commonwealth declined to take custody of him. Additionally, as stated
above, whether the Commonwealth took custody of Appellant is not
See 42
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Pa.C.S. § 9
ineffectiveness claims fail. See Henkel, 90 A.3d at 30.
s closed
Brief at 19. These allegations are distinct from the claims of ineffective
assistance of counsel above. Additionally, Appellant cites the constitutional
right of a defendant to have compulsory process for obtaining witnesses in
situation in this present case, with the Commonwealth not disclosing
are waived because they could have been raised on direct appeal. See 42
Pa.C.S. § 9544(b).
court dismissing his PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2014
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