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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JASON SEAN EVANS, : No. 1836 WDA 2013
:
Appellant :
Appeal from the PCRA Order, October 22, 2013,
in the Court of Common Pleas of Washington County
Criminal Division at Nos. CP-63-CR-0000068-2009,
CP-63-CR-0001278-2009, CP-63-CR-0001564-2009,
CP-63-CR-0002458-2009, CP-63-CR-0002643-2009,
CP-63-CR-0002814-2009, CP-63-CR-0002815-2009,
CP-63-CR-0002816-2009, CP-63-CR-0002817-2009,
CP-63-CR-0002818-2009
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 6, 2014
Appellant appeals the order denying relief pursuant to his first petition
§§ 9541-9546. Finding no error, we affirm.
On October 5, 2010, appellant entered a plea of guilty to one count of
robbery and nine counts of burglary at the above-listed ten criminal docket
provides an accurate synopsis of the ensuing procedural history:
The defendant was represented throughout the
proceedings by Gary Graminski, Esq. The date of
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the plea hearing and sentencing was October 5,
2010. The defendant filed an untimely pro se Motion
to Withdraw Guilty Plea on October 21, 2010.
(Docket 21). Gary Graminski, Esq., withdrew his
appearance on December 1, 2010, and
Daniel Chunko, Esq., entered his appearance that
same day. (Docket 23). The defendant filed a
pro se Motion for Reconsideration of Sentence or to
Alternatively Extend Deadlines to File Allowance of
Appeal Under Pennsyl
Act on January 18, 2011. On January 24, 2011, the
Court ordered the Commonwealth to respond within
twenty (20) days. (Docket 22).
On February 28, 2011, the post-sentence
pro se motion filed on October 21, 2010, was denied
by operation of law pursuant to Pa.R.Crim.P.
720B(3)c. (Docket 24). An Order of Court was
issued on April 20, 2011, indicating that the
Commonwealth had never responded to the Order
dated January 24, 2011, and that the defendant had
not appealed the February 28, 2011 Order. (Docket
25). The Court again ordered the Commonwealth to
respond within twenty (20) days. The
Commonwealth did not respond until June 10, 2011.
(Dockets 26 & 27). The Court issued an Order of
Court on June 13, 2011, and denied both of the
that no hearing or argument was required on the
motions. The defendant, through counsel, filed a
PCRA Petition on October 4, 2011, and alleged
ineffective assistance of counsel, a plea of guilty
unlawfully induced, and an improper sentence.
(Docket 29). The defendant also filed
Supplement to PCRA Petition on July 30, 2012.
(Docket 33). The Commonwealth filed its Answer to
Petition for Post Conviction Relief on August 2, 2012,
and the Court filed a Notice of Intention to Dismiss
PCRA Petition on October 19, 2012. (Dockets 34 &
35). The defendant responded with a pro se
Proposed Dismissal Response on October 25, 2012,
and Daniel Chunko withdrew his appearance on
November 15, 2012. (Dockets 36 & 38).
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Judge Moschetta Bell dismissed the
PCRA Petition without a hearing on
November 19, 2012. (Docket 37). The defendant
responded with a Motion for Appointment of
Counsel/Change of Venue/Re-Review of the
tion and Amended Petition and
PCRA Petition Without a Hearing on December 8,
2012. (Docket 39).
This case was transferred to the undersigned
on December 21, 2012, and Mary Bates, Esq., was
appointed to represent the defendant on January 2,
2013. (Docket 40). She was given thirty (30) days
to file an Amended Petition. Although never
explicitly stated, this Court has effectively
re- PCRA Petition as the
defendant requested. Attorney Bates filed a Petition
for Extension of Time to File Amended Petition on
January 28, 2013, and this Court granted a
thirty (30) day extension. (Docket 41).
Attorney Bates submitted to the Court on April 22,
2013, a Petition to Withdraw as Counsel and for
Extension of Time for Pro Se Defendant to File an
Amended/Supplemental PCRA Petition. (Dockets 43
defendant subsequently filed a pro se Supplemental
Addition to Amended Petition for Post Conviction
Collateral Relief on June 11, 2013. (Docket 44).
On July 2, 2013, this Court issued an Order
intent to dismiss his PCRA Petition. (Docket 45).
The Court also informed the defendant that pursuant
to the Court in Turner, he must now proceed pro se,
by privately retained counsel, or not at all.
Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988). This Court found that the grounds presented
petitions and responses were patently frivolous, not
supported in law or in fact, and no genuine issues of
material fact entitled the defendant to relief, and no
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purpose would have been served by any further
proceeding. Accordingly, the PCRA Petition was
denied on October 22, 2013. (Docket 48).
The defendant filed this appeal on
November 12, 2013. (Docket 50).
Trial court opinion, 1/15/14 at 7-9.1
In his rambling, sometimes incoherent, brief, appellant raises four
issues on appeal, which we characterize as follows:
1.
faced deadly weapon enhancements on several
cases where the record showed that it was not
true?
1
We observe that on November 19, 2012, the PCRA court entered an order
until December 21, 2012, a time beyond thirty days of the dismissal order
and where the court had no jurisdiction to further act. See 42 Pa.C.S.A.
§5505. This appeal is untimely because the notice of appeal was not filed
within thirty days of the November 19, 2012 order. Pa.R.A.P., Rule 903(a),
42 Pa.C.S.A. Nonetheless we will not quash. We note that on November 19,
2012, the PCRA court also entered an order permitting
withdraw. The order was based upon a petition by counsel averring that
wanted counsel to withdraw and proceed on his own. We find that the PCRA
court was obligated at that point to conduct a colloquy of appellant pursuant
to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Because the court
failed to do so, appellant was denied the assistance of counsel at a time
when he had a right to counsel, may have desired counsel, and when his
inaction in this regard constituted a breakdown in the operation of the court.
appellate courts may grant a party equitable relief in the form of an appeal
nunc pro tunc in certain extraordinary circumstances [such as fraud or a
breakdown in the operations of the court]. Commonwealth v. Stock, 545
Pa. 13, 679 A.2d 760, 763- Criss v. Wise, 781 A.2d 1156,
issues.
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2. Whether trial counsel was ineffective for
allowing appellant to plead guilty in light of the
improper inducement, whether trial counsel
was ineffective in failing to seek withdrawal of
t
counsel were ineffective in failing to raise these
issues?
3. Whether the court erred in failing to dismiss
certain charges because the Commonwealth
violated the speedy trial rule?
4. Whether the trial court erred in not providing
appellant sooner with the transcript of his
guilty plea hearing?
We will address these matters seriatim.
Our standard of review for an order denying post-conviction relief is
on is free of legal error. Commonwealth v.
Franklin
will not be disturbed unless there is no support for the findings in the
certified record. Id.
appeal is stated in terms of
ineffective assistance of counsel, we also note that appellant is required to
make the following showing in order to succeed with such a claim: (1) that
the underlying claim is of arguable merit; (2) that counsel had no reasonable
strategic basis for his or her action or inaction; and (3) that, but for the
errors and omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different. Commonwealth v.
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Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any
prong of this test will cause the entire claim to fail. Commonwealth v.
Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed
to be effective, and appellant has the burden of proving otherwise.
Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).
Appellant first asserts that his plea was improperly induced by the
enhancements against him on a number of charges. The exchange to which
appellant was referring occurred during the plea colloquy:
THE COURT: You are entering pleas today to a
variety of felonies, one being robbery, a felony of the
first degree. It carries with it a maximum sentence
of ten to twenty years, a maximum fine of $25,000.
You are also entering a plea to a number of
burglaries, I believe, about five. Is that right,
Mr. Carroll [the assistant district attorney]?
MR. CARROLL: There is one robbery and the
remaining nine are burglaries, either F- r F-
THE COURT: Those burglaries that are felonies of
the first degree, each carry a maximum sentence of
ten to twenty years, and a maximum fine of
$25,000. Those burglaries that are felonies of the
second degree each carry with them a maximum
sentence of five to ten years and a $25,000 fine as
well.
I understand that there will be some pleas to
felony three type of crime and that felony three
carries with it a maximum three and a half to seven
years and a $15,000 fine. If through this process
today you enter a plea to something other than a
felony of the first, second or third degree, I will
review with you your statutory maximum and
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minimum sentences and your maximum and
minimum fines. You are not facing any sentences
today where the Commonwealth is invoking a
mandatory minimum sentence. Is that right,
Mr. Carroll?
type of enhancements for deadly weapon used or
possessed.
THE COURT: Although you could have?
MR. CARROLL: I could have, yes.
THE COURT: On a number of cases?
MR. CARROLL: Yes.
Notes of testimony, 10/5/10 at 4-6.
Appellant argues that he was charged with only one crime, the
robbery, in which he brandished a deadly weapon. Therefore, the
Commonwealth falsely related to him that it could have used deadly weapon
enhancements on a number of his offenses and that this factor induced him
to plead guilty.
inducement occurred, appellant had already decided to plead guilty, which
was the purpose of the proceeding at which he was appearing. Second, the
threat intending to induce appellant to plead guilty; rather, it informed
appellant that no deadly weapon enhancement would be applied. Fourth, it
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is unclear whether the district attorney was stating whether he could apply
deadly weapon enhancement to a number of appe
could apply mandatory minimum sentences or deadly weapon
enhancements; the trial court had asked about mandatory minimum
sentences immediately before the deadly weapon enhancements. We find
Appellant next asserts that trial counsel was ineffective in allowing
appellant to accept a plea after the above-described unlawful inducement
and that subsequent counsel were ineffective in failing to raise this
argument. Obviously, having just analyzed ap
issue, and having found it specious, there is no merit to the issue underlying
his claim of ineffective assistance; consequently, there is no ineffectiveness.
Appellant also contends that trial counsel was ineffective in failing to
file a motion to withdraw his guilty plea which appellant allegedly requested
imposed, a defendant must show that manifest injustice will result if he is
not permitted to withd Commonwealth v. Kirsch, 930 A.2d
1282, 1284 (Pa.Super. 2007), appeal denied, 945 A.2d 168 (Pa. 2008). In
his argument, appellant fails to analyze or explain what manifest injustice
occurred as a result of his plea. Thus, he fails to demonstrate that he likely
would have been permitted to withdraw his plea; consequently, we see no
merit to the underlying claim. Finally, appellant filed a pro se motion to
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withdraw his plea. Thus, we find that appellant has failed to satisfy the
prejudice prong also.
In his third issue, appellant argues that the court erred in failing to
dismiss certain charges because the Commonwealth violated the speedy trial
Pa.R.Crim.P., Rule 600, 42 Pa.C.S.A. Commonweealth v. Barbaro, 94
A.3d 389, 391 n.2 (Pa.Super. 2014). Moreover, during his plea colloquy, the
trial court specifically informed appellant that he was withdrawing and
waiving his Rule 600 claims by pleading guilty and appellant agreed. (Notes
of testimony, 10/5/10 at 7-8.)
In his fourth and final issue, appellant complains that the trial court
erred in not supplying him with his guilty plea transcript quickly enough.
Unfortunately, appellant has inadvertently omitted from his brief three pages
(pp. 42-44) of an apparent four-page argument in this regard.
reversing the order of the PCRA court denying appellant relief.
Accordingly, having found no merit in the issues on appeal, we will
affirm the order below.
Order affirmed. Petition for bail pending appeal denied.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2014
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