Com. v. Payo, D.

J-S50022-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID PAYO, :
:
Appellant : No. 84 WDA 2014

Appeal from the Judgment of Sentence Entered August 19, 2010,
In the Court of Common Pleas of Allegheny County,
Criminal Division, at No. CP-02-CR-0016545-2008.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 10, 2014

David Payo, Appellant, appeals nunc pro tunc from the judgment of

sentence entered August 19, 2010, following his entry of a guilty plea to

robbery. We affirm.

At the guilty-plea hearing, the Commonwealth summarized the facts of

the crime as follows:

[O]n or about December 13th of 2007, at approximately 10:20
hours, West Mifflin Police received a call from the Iron and Glass
Bank to report a robbery that had just occurred there.

The teller [who] was approached by the actor was [A.C.].
She reported that a man dressed in a gray hoodie with a flannel
coat over the top of his head entered the bank and came to her
window, that he was carrying a blue colored bank type bag, and
that he pulled out a note that read something like, Hundreds and
fifties; don’t fuck up; they’re watching.
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[A.C.], fearing for her safety, gave the hooded man $5,150
in U.S. currency that she had in her bottom drawer.

The man put the money and the note in his blue bank bag
and fled out of the bank. He was described as being 35-40 years
of age. Height and other physical description details were given.
Photographs were obtained by the FBI of the actor.

That and the result of several individuals who were
interviewed, including [Appellant’s] brother, assisted the
detectives in making identification. [Appellant] was
subsequently arrested.

N.T., 7/26/10, at 3–4.

The trial court summarized the procedural history as follows:

[Appellant] was charged with one (1) count of Robbery1 in
connection with the robbery of the Iron and Glass Bank in West
Mifflin on December 13, 2007. On July 26, 2010, [Appellant]
appeared before this Court and, pursuant to a plea agreement
with the Commonwealth, pled guilty to the [robbery] charge in
exchange for a term of imprisonment of eighteen (18) to thirty-
six (36) months, to run consecutive to a sentence he was
already serving at another information. He subsequently filed
Post-Sentence Motions, at which time this Court re-sentenced
[Appellant] to a term of imprisonment of four (4) to eight (8)
years concurrent to the sentence he was currently serving, the
original plea offer by the Commonwealth.
1
18 Pa.C.S.A. §3701(a)(1)(iv).

No action was taken until March 30, 2011, when
[Appellant] filed a pro se Post Conviction Relief Act Petition.
Counsel was appointed to represent [Appellant], but [he]
eventually filed a Turner[1] letter and was permitted to withdraw.
On July 14, 2011, after giving the appropriate notice, this Court
dismissed [Appellant’s] pro se PCRA Petition without a hearing.

1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).

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Again, no further action was taken until November 6,
2011, when [Appellant] filed a “Petition to Compel the Common
Pleas Court of Allegheny County to Service [sic] the Denial of
Petitioner’s Post Conviction Collateral Petition,”[2] alleging that he
received the Notice of Intent to Deny the PCRA Petition, but did
not actually receive the denial itself. Despite having served
[Appellant] with the Order, on January 5, 2012, this Court
entered an Order reinstating [Appellant’s] appellate rights from
the July 14, 2011 denial of the [PCRA] Petition and ordering that
any and all appeals be filed within thirty (30) days. This Court
served [Appellant] with a copy of that Order via Certified Mail,
with return receipt.

Once again, no action was taken.[3] The reinstatement of
thirty (30) days was allowed to expire with no appeal having
been filed. Finally, on May 11, 2012[4]—128 days later—
[Appellant] filed a Notice of Appeal with the Superior Court.[5]
. . . [T]he Superior Court addressed the merits of the appeal

2
This petition apparently was filed in the Commonwealth Court, which
transferred it to the Pennsylvania Supreme Court “for consideration under its
superintendency powers.” Commonwealth Court Order, 11/22/11.
3
A panel in a subsequent appeal of this Court explained:

On March 20, 2012, [Appellant] discovered no appeal had been
docketed. He attempted to discover what had happened, but
could not. On May 3, 2012, our Court received a Motion to
Compel. On May 9, 2012, our Court issued an order granting
[Appellant’s] motion and directing the lower court to process
[Appellant’] notice of appeal. The notice of appeal was formally
docketed on May 11, 2012.

Commonwealth v. Payo, 762 WDA 2012, 81 A.3d 989 (Pa. Super. filed
May 3, 2013)(unpublished memorandum at 2–3).
4
The docket entries reveal that in the interim, Appellant filed a petition for
writ of mandamus in the Pennsylvania Supreme Court, which was denied on
April 25, 2012.
5
While this document is not in the record certified to us on appeal, the
docket reflects its filing on May 11, 2012.

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and remanded the case for an evidentiary hearing to determine
if [Appellant] asked trial counsel to file a direct appeal.[6] This
Court scheduled the hearing for August 19, 2013, but due to a
transportation mix-up, [Appellant] was not brought to the
Courthouse. Nevertheless, the Commonwealth consented to the
reinstatement of his Post-Sentence Motion rights, which this
Court then ordered the same day. Timely Post-Sentence
Motions were subsequently filed and were denied on December
19, 2013. This appeal followed.

Trial Court Opinion, 5/5/14, at 1–2. The trial court ordered Appellant to

comply with Pa.R.A.P. 1925 on January 13, 2014, but that order is not in the

certified record, although the docket notes its filing. Appellant timely

complied on January 21, 2014.

Appellant presents the following single issue for our review:

1. Did the trial court err in denying Appellant’s post sentencing
motions since Appellant’s 7/26/10 guilty plea was involuntary
since he was coerced and misled by trial counsel Brestensky into
pleading guilty since she assured him that the 7/26/10 denial of
his rule 600 speedy trial motion could be raised in a Superior
Court appeal, even after he pled guilty (she never informed him
that the rule 600 claim could not be raised in an appeal).
Moreover, trial counsel, rather than Appellant, filled out the
written guilty plea colloquy since Appellant was handcuffed at
the time, and so Appellant was unaware that written colloquy
question No. 25 indicated that all pretrial motions were
abandoned if he pled.

Appellant’s Brief at 3 (full capitalization omitted).

6
Payo, 762 WDA 2012 (unpublished memorandum at *5) (vacating order
denying Appellant PCRA relief and order granting counsel’s request to
withdraw and remanding for a hearing “to determine the facts surrounding
[Appellant’s] request to file a direct appeal”).

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Appellant’s issue raises an allegation that trial counsel provided

ineffective assistance by coercing and misleading Appellant to plead guilty.

In particular, he maintains that counsel gave him incorrect advice regarding

the appealability of the motion he filed pursuant to Pa.R.Crim.P. 600. The

trial court held:

In his Post-Sentence Motions, [Appellant] raised the same
substantive claim at issue in this appeal, namely that counsel
improperly induced his plea by advising him that he could appeal
the denial of his pre-trial Rule 600 motion and that he did not
see the waiver on the colloquy form because counsel filled it out
for him. A careful review of this issue reveals that [Appellant]
has couched his claim in terms relating to counsel’s inducement
of the plea through incorrect legal advice. Claims relating to trial
counsel’s effectiveness in conjunction with the entry of a guilty
plea are properly raised on collateral review and are not
cognizable on direct appeal. Appointed counsel seems to
recognize this distinction, as the Concise Statement expressly
notes that [Appellant] “wanted a Superior Court appeal rather
than a PCRA Petition filed.” (Concise Statement of Matters
Complained of on Appeal, p. 4). By basing the claim on
counsel’s ineffectiveness, [Appellant] has removed himself from
the ambit of the direct appeal and should instead save this claim
until collateral review.

Trial Court Opinion, 5/5/14, at 3–4. For the reasons that follow, we defer

this claim to be raised in a subsequent petition pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546.

In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme

Court considered “the reviewability of claims of ineffective assistance (“IAC”)

of counsel on post-verdict motions and direct appeal.” Id. at 563. Following

a comprehensive review of the language codified in the PCRA and decisions

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from our courts, the Holmes Court revisited the exception to

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), as described in

Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), and held that absent

either good cause or exceptional circumstances and a waiver of PCRA

review, IAC claims must await collateral review. See also Commonwealth

v. Barnett, 25 A.3d 371, 373 (Pa. Super. 2011) (en banc) (“[T]he Supreme

Court has limited the applicability of Bomar” such that most assertions of

ineffective assistance of counsel “are appropriately raised only on collateral

review.”); Commonwealth v. Britt, 83 A.3d 198, 203 (Pa. Super. 2013)

(“[A]bsent either good cause or exceptional circumstances and a waiver of

PCRA review, ineffective assistance of counsel claims must await collateral

review.”).

Herein, there is no indication in the record that good cause or

extraordinary circumstances exist such that Appellant’s IAC claim warrants

review on direct appeal or that Appellant expressly waived his right to PCRA

review. See also Barnett (holding that this Court cannot review IAC claims

on direct appeal absent a defendant’s waiver of PCRA review).

Consequently, in light of Holmes, we dismiss Appellant’s claim of ineffective

assistance of counsel without prejudice to his ability to raise it in a

subsequent PCRA petition, if he so chooses.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/10/2014

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