J-S32041-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GLENN PINER, :
:
Appellant : No. 87 WDA 2015
Appeal from the PCRA Order entered on December 12, 2014
in the Court of Common Pleas of Blair County,
Criminal Division, No(s): CP-07-CR-0000125-2012;
CP-07-CR-0000162-2012; CP-07-CR-0000164-2012;
CP-07-CR-0000679-2012
BEFORE: SHOGAN, OLSON and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 07, 2015
Glenn Piner (“Piner”) appeals from the Order denying his Petition for
relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its December 12, 2014 Opinion, the PCRA court set forth a
comprehensive summary of the history underlying the instant appeal, which
we incorporate herein by reference. See PCRA Court Opinion, 12/12/14, at
1-10 (unnumbered).
On appeal, Piner presents the following issues for our review:
A. Whether the PCRA [c]ourt erred/abused its discretion by
failing to find [that] the trial court erred by refusing to
appoint new defense counsel for [Piner], as the record
demonstrates [that Piner] repeatedly requested new counsel
because of his counsel’s ineffectiveness?
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42 Pa.C.S.A. §§ 9541-9546.
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B. Whether the PCRA [c]ourt erred/abused its discretion by
failing to find [Piner’s] prior counsel ineffective for falling to
send [Piner] the discovery in his case, as the record
demonstrates [that] the failure hampered his defense?
C. Whether the PCRA [c]ourt erred/abused its discretion by
failing to find [Piner’s] prior counsel ineffective because she
did not adequately review the discovery?
D. Whether the PCRA [c]ourt erred/abused its discretion by
failing to find [Piner’s] prior counsel ineffective for failing to
file any motions in the case, as the record demonstrates
[that] there were potential motions that would have been
meritorious and potentially changed the outcome of the case,
had they been filed?
E. Whether the PCRA [c]ourt erred/abused its discretion by
failing to find [Piner’s] prior counsel ineffective for failing to
timely communicate plea offers[,] or miscommunicate plea
offers to [Piner], as the record demonstrates [that] such
failure prejudiced [Piner]?
F. Whether the PCRA [c]ourt erred/abused its discretion by
failing to find [Piner’s] prior counsel ineffective for failing to
withdraw [Piner’s] guilty plea, as the record demonstrates
[that Piner] indicated it was his desire to do so?
G. Whether the PCRA [c]ourt erred/abused its discretion by
failing to find [Piner’s] prior counsel ineffective for failing to
consult with [Piner] regarding an appeal[,] or file what would
have been a meritorious direct appeal, as the record indicates
… [that] he wished to appeal?
H. Whether the PCRA [c]ourt erred/abused its discretion by
failing to find [Piner’s] prior counsel ineffective for her alcohol
use during her representation of [Piner], as the record
demonstrates her intoxication at several of [Piner’s] hearings?
I. Whether the PCRA [c]ourt erred/abused its discretion by
failing to find that [Piner] entered an involuntary plea due to
his counsel’s ineffectiveness and the court’s failure to appoint
new counsel?
Brief for Appellant at 4-5.
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Piner’s first three claims are related, so we will address them together.
Piner claims that his trial/plea counsel, Tami Fees, Esquire (“Attorney Fees”),
rendered constitutionally deficient representation. First, Piner argues that
the trial court improperly refused to replace Attorney Fees, as Piner had
expressed his dissatisfaction with her representation to the trial court. Id.
at 10, 12. Piner points out that Attorney Fees was, at one point during her
representation, suspended from the practice of law. Id. Piner asserts that
Attorney Fees visited him in jail on only two occasions, and did not provide
him with updates on his case. Id.
In his appellate brief, Piner combines his second and third issues. In
his second issue, Piner argues that Attorney Fees’s failure to send him copies
of the discovery received from the Commonwealth hampered his ability to
assist in his own defense. Id. at 13. Piner asserts that he reviewed the
Commonwealth’s discovery on only one occasion, at the office of the
prosecutor. Id. According to Piner, during Attorney Fees’s jail visits, she
failed to bring documentation to the meeting and did not have command of
the facts of the case. Id. Instead, Piner asserts, Attorney Fees “only tried
to talk [] Piner into taking a plea and possible sentences.” Id. Piner asserts
that, by failing to adequately review discovery, and depriving him of the
opportunity to review the discovery, she caused prejudice to Piner. Id. at
14. Piner further argues that Attorney Fees rendered ineffective assistance
by not adequately reviewing the discovery materials. Id. at 13.
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“As a general proposition, an appellate court reviews the
PCRA court’s findings to see if they are supported by the record
and free from legal error.” Commonwealth v. Reyes, 582 Pa.
317, 870 A.2d 888, 893 n. 2 (Pa. 2005). This Court’s scope of
review is limited to the findings of the PCRA court and the
evidence on the record of the PCRA court’s hearing, viewed in
the light most favorable to the prevailing party, in this case, the
Commonwealth. See, e.g., Commonwealth v. Duffey, 585
Pa. 493, 889 A.2d 56, 61 (Pa. 2005); Commonwealth v.
Meadius, 582 Pa. 174, 870 A.2d 802 (Pa. 2005). In addition,
“[t]he level of deference to the hearing judge may vary
depending upon whether the decision involved matters of
credibility or matters of applying the governing law to the facts
as so determined.” Commonwealth v. Reaves, 592 Pa. 134,
923 A.2d 1119, 1124 (Pa. 2007) (citations omitted).
Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008).
To be eligible for relief based on a claim of ineffective assistance of
counsel, a PCRA petitioner must demonstrate, by a preponderance of the
evidence, that (1) the underlying claim is of arguable merit; (2) no
reasonable basis existed for counsel’s action or omission; and (3) there is a
reasonable probability that the result of the proceeding would have been
different absent such error. Commonwealth v. Steele, 961 A.2d 786, 796
(Pa. 2008). With regard to the second, i.e., the “reasonable basis” prong,
this Court will conclude that counsel’s chosen strategy lacked a reasonable
basis only if the appellant proves that “an alternative not chosen offered a
potential for success substantially greater than the course actually pursued.”
Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (citation
omitted). To establish the third prong, i.e., prejudice, the appellant must
show that there is a reasonable probability that the outcome of the
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proceedings would have been different but for counsel’s action or inaction.
Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).
In its Opinion, the PCRA court addressed Piner’s claims of ineffective
assistance by Attorney Fees, and concluded that they lack merit. PCRA
Court Opinion, 12/12/14, at 10 (unnumbered) (discussing Piner’s issue
related to the suspension of Attorney Fees for failing to comply with
continuing legal education requirements), 11 (determining that Piner’s
discovery issues lack merit). The findings of the PCRA court are supported
by the evidence of record, and its legal conclusions are sound. Accordingly
we affirm on the basis of the PCRA court’s Opinion with regard to these
claims. See id.
In his fourth issue, Piner claims that Attorney Fees rendered ineffective
assistance by failing to file a motion to suppress evidence.2 Brief for
Appellant at 14. Piner asserts that he had requested that Attorney Fees file
a suppression motion to challenge the wiretap evidence against him. Id.
In its Opinion, the PCRA court addressed this claim, and concluded
that it lacks merit. PCRA Court Opinion, 12/12/14, at 12 (unnumbered).
2
In his appellate brief, Piner also asserts that his counsel rendered
ineffective assistance by failing to file a motion to sever his trial from that of
his co-defendants. Piner provides no supporting argument or citation to
pertinent legal authority. Accordingly, this claim is waived. See Pa.R.A.P.
2119 (requiring an appellant to support his or her argument with pertinent
analysis, including citation to and discussion of relevant authority and facts
of record).
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We agree with the reasoning of the PCRA Court, and affirm on the basis of
its Opinion. See id.
In his fifth issue, Piner claims that Attorney Fees rendered ineffective
assistance by failing to communicate plea offers from the Commonwealth,
on a timely basis. Brief for Appellant at 15. Piner further claims that
Attorney Fees miscommunicated the plea offers. Id. According to Piner,
Attorney Fees “mistakenly led him to believe it would be to one count,
whereas he ended up pleading to eleven.” Id. at 16. However, Piner
appears to concede that he “may have (eventually) received all plea
offers[.]” Id. Piner asserts that the failure to timely communicate plea
offers resulted in prejudice, “because he was essentially forced into taking a
plea at a later stage, without proper consideration beforehand.” Id.
In its Opinion, the PCRA court states that Piner failed to produce
evidence suggesting that there were plea offers that were not communicated
to him. PCRA Court Opinion, 12/12/14, at 12 (unnumbered). The testimony
of Attorney Fees at the PCRA hearing supports the PCRA court’s finding.
When asked how much time would have elapsed between her receipt of a
plea offer and her communication of that offer to Piner, Attorney Fees stated
the following:
It would have been that same day because I would have been
over here speaking with the Commonwealth [sic] would be up in
the District Attorney’s Office and [] Piner would have been
brought over. They would have provided me with an offer at
that time[,] and I spoke to [] Piner and it was agreed upon that
it would be accepted.
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N.T., 9/5/14, at 40. Attorney Fees further testified that whenever she
received a plea offer from the Commonwealth, she communicated that offer
to Piner. Id. Finally, Attorney Fees testified that she did not misrepresent a
plea offer to Piner. Id. at 41-42 (wherein Attorney Fees stated that, while
she discussed with the Commonwealth what the actual plea was going to be,
and to what charges, the offer never changed with regard to the prison
term).
Because the record supports the PCRA court’s findings, as summarized
above, and the PCRA court’s legal conclusions are sound, we adopt the
reasoning of the PCRA, and affirm on the basis of the PCRA court’s Opinion
with regard to this claim. PCRA Court Opinion, 12/12/14, at 12-13
(unnumbered).
In his sixth issue, Piner argues that Attorney Fees rendered ineffective
assistance by misinforming him that he was RRRI-eligible. Brief for
Appellant at 17. Piner directs our attention to his testimony that Attorney
Fees had represented to him that he was RRRI eligible. Id. at 18. Piner
asserts that “he was basically forced into accepting the plea offer, as he felt
his counsel was not prepared for trial.” Id. Piner further points out that he
had directed Attorney Fees to inquire as to why he was not eligible for RRRI,
but she failed to reply. Id.
In its Opinion the PCRA court found no merit to Piner’s claim.
Specifically, the PCRA court found that “Piner was advised multiple times
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from multiple sources prior to pleading guilty that he was not RRRI
[e]ligible.” PCRA Court Opinion, 12/12/14, at 13 (unnumbered). The record
supports this finding by the PCRA court. See N.T., 9/5/14, at 42 (wherein
Attorney Fees testified that Piner’s ineligibility for RRRI was brought to
everyone’s attention, “at least in written form[,] in January of 2013.”).
Accordingly, we cannot grant Piner relief on this claim.
In his seventh and eighth issues, Piner claims that Attorney Fees
rendered ineffective assistance by failing to file a petition to withdraw his
guilty plea. Brief for Appellant at 18. Directing our attention to this Court’s
holding in Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001),
Piner asserts that
counsel has a constitutionally-imposed duty to consult with the
defendant about an appeal when there is reason to think either
(1) that a rational defendant would want to appeal … , or (2)
that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing…
Id. at 1254. Piner contends that, “because of [] Piner’s evident
dissatisfaction, Attorney Fees had a reason to inquire with [] Piner regarding
an appeal or the withdrawal of his plea.” Brief for Appellant at 19. Piner
acknowledges that “[w]hile [he] did not communicate specifically his desire
to appeal or withdraw his plea, this was only because he felt [that Attorney
Fees] did not do anything for him presentencing.” Id.
In its Opinion, the PCRA court addressed these claims and found them
to be without merit. PCRA Court Opinion, 12/12/14, at 13-14
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(unnumbered). As there is support in the record for the PCRA’s findings,
and its legal conclusions are sound, we affirm on the basis of the PCRA
court’s Opinion with regard to these claims. See id.; see also N.T., 9/5/14,
at 43-44 (wherein Attorney Fees testified that she was not asked to file a
motion to withdraw Piner’s guilty plea or a direct appeal, and that there was
nothing at the plea hearing or sentencing that would have led her to believe
that she should file either a motion to withdraw the plea or an appeal).
In his ninth issue, Piner argues that Attorney Fees’s intoxication and/or
alcohol use established ineffective assistance of counsel. Brief for Appellant
at 20. Piner directs our attention to testimony that Attorney Fees had an
odor of alcohol on several occasions. Id.
In its Opinion, the PCRA court addressed this claim and concluded that
it lacks merit. PCRA Court Opinion, 12/12/14, at 15 (unnumbered).
Because the PCRA court’s findings are supported in the record, and we
discern no abuse of discretion, we affirm on the basis of the PCRA court’s
Opinion with regard to this claim. See id.
In his final claim, Piner merely restates his ineffectiveness claims.
Brief for Appellant at 21. In support, Piner states that Attorney Fees’s
“errors are evident throughout the course of her representation of [] Piner.”
Id. at 22.
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As we have concluded that the PCRA court’s rejection of Piner’s
ineffectiveness claims is supported by evidence of record, and its legal
conclusions are sound, there is no merit to Piner’s last, general claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2015
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