J-S50026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES DUNYAN
Appellant No. 1737 EDA 2014
Appeal from the PCRA Order May 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010212-2008
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 10, 2015
Appellant, James Dunyan, appeals from the May 12, 2014 order
dismissing, without a hearing, his first petition filed pursuant to the Post
Conviction Relief Act, (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon careful
review, we affirm.
We summarize the procedural history of this case as follows. On
March 19, 2008, Appellant was charged by criminal complaint with
aggravated assault, burglary, criminal trespass, possession of an instrument
of crime (PIC), terroristic threats, simple assault, and recklessly endangering
another person.1 The charges stemmed from Appellant’s March 2, 2008
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1
18 Pa.C.S.A. §§ 2702(a), 3502(a), 3503(a)(1)(i), 907(a), 2706 (a)(1),
2701(a), and 2705, respectively.
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entry into the home of Gary Summerfield (Victim), where he accosted and
injured Victim with two tire augers. On November 3, 2010, Appellant
entered a negotiated guilty plea to burglary, PIC, and simple assault in
exchange for which the Commonwealth recommended a sentence of five to
ten years’ incarceration and nolle prossed the remaining counts. The trial
court accepted the guilty plea and that same day sentenced Appellant in
accordance with the plea agreement.2 No post-sentence motion was filed.
Appellant filed a pro se notice of appeal on December 1, 2010. Newly
appointed appellate counsel filed a motion to withdraw together with an
Anders3 brief before this Court. This Court affirmed the judgment of
sentence on July 9, 2012, and permitted counsel to withdraw. See
Commonwealth v. Dunyan, 55 A.3d 125 (Pa. Super. 2012) (unpublished
memorandum) (finding, inter alia, Appellant’s challenge to the voluntariness
of his plea was frivolous, inasmuch as Appellant never preserved the issue
by requesting to withdraw his plea before the trial court).4
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2
Specifically, the trial court sentenced Appellant to a term of incarceration of
five to ten years on the burglary count and imposed no additional penalty for
the PIC, and simple assault counts.
3
Anders v. California, 386 U.S. 738 (1967).
4
During the pendency of his direct appeal, Appellant filed a pro se “Motion
to Withdraw Guilty Plea Nunc Pro Tunc,” which was docketed and
transmitted by the Clerk of Courts. See Pa.R.Crim.P. 576(A)(4) (providing
that when a pro se filing by a represented defendant is received, the Clerk of
Courts shall “accept it for filing, time stamp it with the date of receipt and
(Footnote Continued Next Page)
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On July 23, 2012, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel to represent Appellant, who filed an amended PCRA
petition on May 3, 2013. On April 11, 2014, pursuant to Pennsylvania Rule
of Criminal Procedure 907, the PCRA court filed its notice of intent to dismiss
Appellant’s amended PCRA petition without a hearing.5 The PCRA court
dismissed Appellant’s amended PCRA petition on May 12, 2014. On May 23,
2014, Appellant filed a pro se notice of appeal. A counseled notice of appeal
was filed on June 10, 2014.6
On appeal, Appellant raises the following issue for our review.
Did the PCRA [c]ourt err when it dismissed
[Appellant’s] Amended PCRA Petition without
granting a [h]earing and where [Appellant] properly
pled and would have been able to prove that he was
entitled to relief?
Appellant’s Brief at 3.
Appellate review of a PCRA court’s dismissal of a PCRA petition is
circumscribed by the following principles.
_______________________
(Footnote Continued)
make a docket entry reflecting the date of receipt, and place the document
in the criminal case file,” and forward the same to counsel).
5
On April 18, 2014, Appellant filed a pro se response to the PCRA court’s
notice of intent to dismiss.
6
During the pendency of the PCRA proceedings and the instant appeal,
Appellant filed several motions to remove PCRA counsel before the PCRA
court and this Court. On January 6, 2015, Appellant filed a motion to
withdraw his earlier request to remove counsel, and PCRA counsel has
continued to represent Appellant in this appeal. See Superior Court Order,
1/23/15, at 1 (granting Appellant’s motion to withdraw his request to
remove counsel and reinstating the briefing schedule in this appeal).
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Our standard of review of the denial of a PCRA
petition is limited to examining whether the court’s
rulings are supported by the evidence of record and
free of legal error. This Court treats the findings of
the PCRA court with deference if the record supports
those findings. It is an appellant’s burden to
persuade this Court that the PCRA court erred and
that relief is due.
Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)
(citation omitted). [T]his Court applies a de novo standard of review to the
PCRA court’s legal conclusions. Commonwealth v. Medina, 92 A.3d 1210,
1215 (Pa. Super. 2014) (en banc) (internal quotation marks and citations
omitted), appeal granted, 105 A.3d 658 (Pa. 2014). Additionally, in order to
be eligible for PCRA relief, a petitioner must plead and prove by a
preponderance of the evidence that his conviction or sentence arose from
one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues
must be neither previously litigated nor waived. Id. § 9543(a)(3).
In this case, the PCRA court dismissed Appellant’s PCRA petition
without conducting a hearing.
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
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Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting
Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007)
(internal citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see
also Pa.R.Crim.P. 907. “We stress that an evidentiary hearing is not meant
to function as a fishing expedition for any possible evidence that may
support some speculative claim of ineffectiveness.” Commonwealth v.
Roney, 79 A.3d 595, 604-605 (Pa. 2013) (internal quotation marks and
citation omitted), cert. denied, Roney v. Pennsylvania., 135 S. Ct. 56
(2014). We review a PCRA court’s decision to dismiss without a hearing for
abuse of discretion. Id. at 604.
When reviewing a claim of ineffective assistance of counsel, we apply
the following test, first articulated by our Supreme Court in Commonwealth
v. Pierce, 527 A.2d 973 (Pa. 1987).
When considering such a claim, courts
presume that counsel was effective, and place upon
the appellant the burden of proving otherwise.
Counsel cannot be found ineffective for failure to
assert a baseless claim.
To succeed on a claim that counsel was
ineffective, Appellant must demonstrate that: (1) the
claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or
inaction; and (3) counsel’s ineffectiveness prejudiced
him.
…
[T]o demonstrate prejudice, appellant must
show there is a reasonable probability that, but for
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counsel’s error, the outcome of the proceeding would
have been different.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal
quotation marks and citations omitted). “Failure to establish any prong of
the test will defeat an ineffectiveness claim.” Commonwealth v.
Birdsong, 24 A.3d 319, 330 (Pa. 2011).
Appellant’s central claim, is that trial counsel was ineffective for failing
to file a motion to withdraw Appellant’s guilty plea when requested by
Appellant to do so after sentencing. Appellant’s Brief at 9. Appellant asserts
it was an abuse of discretion for the PCRA court to deny him an evidentiary
hearing on the issue, when there exist questions of fact regarding
Appellant’s request and trial counsel’s response. Id.
It is [Appellant’s] claim that he did not enter into the
plea in a knowing, intelligent and voluntary fashion.
However, that is not the issue before this Court. The
precise issue is whether or not trial counsel was
ineffective for failing to move to withdraw the plea
after [Appellant] instructed him to do so. Thus,
counsel is requesting an evidentiary hearing on
whether or not counsel ignored [Appellant’s] wishes
to withdraw the plea.
Id.
The PCRA court denied Appellant’s PCRA petition without a hearing
because, “Appellant failed to demonstrate that his guilty plea was entered
involuntarily, and thus prejudice was not established.” PCRA Court Opinion,
7/17/14, at 4. Appellant counters that the failure of a trial counsel to file a
requested motion to withdraw a guilty plea is per se ineffectiveness,
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excusing the need to separately establish prejudice. Appellant’s Brief at 8-9.
“[P]rejudice does not have to be established as moving to withdraw a plea is
a predicate to taking an appeal and, we all know that pursuant to Pierce,
[Appellant] does not have to establish prejudice once he has requested that
counsel take an appeal.” Id. at 8. We disagree.
In Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007), our
Supreme Court addressed a similar argument. In Reaves, the appellant
alleged his violation-of-parole (VOP) counsel was ineffective for failing to file
a requested motion for reconsideration of sentence, which “counsel did not
do [], knowing that such failure would result in the waiver of appellate
claims that needed to be preserved by such a motion.” Id. at 1127. Reaves
further argued as follows.
[T]he per se prejudice approach is appropriate in
instances affecting the right to a meaningful direct
appeal. When an error is not preserved, as his
current claim was not, appellee contends, the result
is tantamount to a refusal to file a direct appeal. …
[T]he presumed prejudice approach should apply
when an attorney refuses to file a requested motion
for reconsideration of a VOP sentence and a claim of
merit is thereby defaulted.
Id. In rejecting Reaves’ argument, our Supreme Court explained as follows.
This Court has extended [the presumption] of
prejudice in Pennsylvania to instances where
counsel’s lapse ensured the total failure of an appeal
requested by the client. … [T]his Court stressed the
fundamental difference between a lapse by counsel
which leads to no review at all and one which merely
narrows the review made available: The difference in
degree between failures that completely foreclose
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appellate review, and those which may result in
narrowing its ambit, justifies application of the
presumption [of prejudice] in the more extreme
instance.
Id. at 1128 (citations omitted). The Reaves Court concluded that VOP
counsel’s alleged failure to file the requested motion did not warrant
application of a per se prejudice presumption.
[VOP counsel’s] failures, however, did not operate to
entirely foreclose appellate review of the decision to
revoke probation and to recommit appellee to a term
of imprisonment. As a matter of law, the failure to
file for sentencing reconsideration…does not waive
any and all appellate issues; it waives only those
claims subject to issue preservation requirements
which were not otherwise already properly
preserved.
Id. at 1128-1129 (noting Reaves in fact filed a direct appeal).7
The same reasoning applies instantly. Counsel’s purported failure to
file a motion to withdraw Appellant’s guilty plea, did not preclude Appellant
from filing a direct appeal, which he in fact did. Rather, by not filing a
motion to withdraw the guilty plea, the issues Appellant could raise in that
appeal were narrowed. Accordingly, Appellant was required to plead and
prove prejudice in order to prevail in his ineffective assistance of counsel
claim. See Michaud, supra.
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7
In this vein, Our Supreme Court has remarked that even where an action
by counsel may be deemed “a per se failing as to performance,” that fact
“does not make out a case of prejudice, or overall entitlement to Strickland
relief.” Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009).
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“[A] trial court is only required to permit a withdrawal of a guilty plea
after sentencing where a defendant/appellant can demonstrate that
prejudice on the order of manifest injustice has occurred. Manifest injustice
occurs where a plea is entered involuntarily or without knowledge of the
charge.” Commonwealth v. Jones, 566 A.2d 893, 895 (Pa. Super. 1989)
(citation omitted), appeal denied, 578 A.2d 926 (Pa. 1990). “A criminal
defendant has the right to effective counsel during a plea process as well as
during trial. A defendant is permitted to withdraw his guilty plea under the
PCRA if ineffective assistance of counsel caused the defendant to enter an
involuntary plea of guilty.” Commonwealth v. Rathfon, 899 A.2d 365,
369 (Pa. Super. 2006) (internal quotation marks and citations omitted).
[A]llegations of ineffectiveness in connection with the
entry of a guilty plea will serve as a basis for relief
only if the ineffectiveness caused the defendant to
enter an involuntary or unknowing plea. Where the
defendant enters his plea on the advice of counsel,
the voluntariness of the plea depends on whether
counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.
Wah, supra at 338-339 (internal quotation marks and citations omitted).
In his amended PCRA petition, Appellant only makes a bald assertion
that his plea was involuntary. Amended PCRA Petition, 5/3/13, at 3.
Appellant does not aver any facts to support his assertion, nor aver any
basis to establish an entitlement to withdraw his plea had such a motion
been filed. See Jones, supra. Rather, Appellant makes the alternative
claim that “even if Appellant were held by [this] Court to have to establish
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prejudice, [Appellant] could easily do so by establishing that he was
prejudiced by the fact that the Superior Court would not hear his
[involuntary plea issue on direct] appeal….” Appellant’s Brief at 8-9.
Appellant misperceives his burden to establish prejudice from counsel’s
alleged ineffectiveness. To warrant a hearing on his claim, it was incumbent
upon Appellant to allege some facts demonstrating his plea was involuntary,
unintelligent, or unknowing. See Wah, supra. Appellant has not done so.
Additionally, as the PCRA court noted, the record of the written and oral plea
colloquies disclose no irregularity or basis to question the validity of
Appellant’s guilty plea. PCRA Court Opinion, 7/17/14, at 4-5. “The
combination of colloquies supported the court’s finding that the plea was
properly tendered. Thus, Appellant’s claim that his guilty plea was entered
involuntarily, merely contradicting his previously adopted guilty plea
colloquy statements, was found insufficient to establish a claim warranting
relief.” Id. at 5.
Based on our review of the record, we discern no error or abuse of
discretion by the PCRA court in dismissing Appellant’s amended PCRA
petition without a hearing. We agree with the PCRA court that Appellant
failed to aver any facts to support his claim that his guilty plea was
involuntary. Accordingly, Appellant failed to demonstrate any prejudice in
support of his ineffective assistance of counsel claim. See Wah, supra.
There being no disputed issue of material fact presented by Appellant
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relative to prejudice, we conclude the PCRA court did not abuse its discretion
by declining to conduct a hearing on Appellant’s petition. See, Roney,
supra. For these reasons, we affirm the PCRA court’s May 12, 2014 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2015
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