J-S65038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEPHEN ALLAN KOVACH
Appellant No. 361 EDA 2015
Appeal from the PCRA Order January 14, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000371-2012
CP-46-CR-0005631-2011
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 17, 2015
Appellant Stephen Kovach appeals from the order of the Montgomery
County Court of Common Pleas dismissing his petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We affirm.
At CP-46-CR-0000371-2012, Appellant was charged with 33 counts of
burglary1 and 138 related offenses, including robbery, criminal trespass,
theft by unlawful taking, receiving stolen property, criminal attempt (theft by
unlawful taking), possession of instrument of crime, criminal mischief, and
fleeing or attempting to elude police officer.2 At CP-46-CR-0005631-2011,
____________________________________________
1
18 Pa.C.S. § 3502(a).
2
18 Pa.C.S. §§ 3701(a)(1)(v), 3503(a)(1)(ii), 3921(a), 3925(a), 901(a),
907(a), 3304(a)(5), and 75 Pa.CS. § 3733(a), respectively.
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Appellant was charged with possession of a controlled substance with intent
to deliver, possession of a controlled substance, and possession of drug
paraphernalia.3
On December 3, 2012, Appellant pled guilty to one count of robbery
and one count of burglary at CP-46-CR-0000371-2012, and one count of
possession at CP-46-CR-0005631-2011. On January 17, 2013, Appellant
filed a motion to withdraw his guilty plea. At a June 6, 2013 hearing
addressing Appellant’s motion, Appellant stated that he wanted to withdraw
his motion withdraw his guilty plea. N.T., 6/6/2013, at 8. The trial court
permitted Appellant to withdraw his motion to withdraw his guilty plea. Id.
at 21.
On June 25, 2013, the trial court imposed the following consecutive
sentences: 6 to 12 months’ imprisonment for possession, 6 to 12 years’
imprisonment for burglary, and 3½ to 7 years’ imprisonment for robbery,
resulting in an aggregate sentence of 10 to 20 years’ imprisonment.
On July 3, 2013, Appellant filed a pro se post-sentence motion,
claiming counsel ineffectiveness. The trial court appointed counsel and
conducted a hearing on November 1, 2013. At the hearing, Appellant
informed the court that he wished to withdraw his post-sentence motion,
waive his right to pursue a direct appeal, and investigate his right to pursue
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3
35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), respectively.
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the counsel ineffectiveness claims on PCRA. N.T., 11/1/2013, at 9-13. The
trial court found Appellant knowingly, voluntarily, and intelligently waived his
right to a direct appeal and granted his request to withdraw his post-
sentence motion. Id. at 14.
On February 25, 2014, after receiving correspondence from Appellant
indicating his desire to pursue a PCRA petition, the court appointed counsel.
On September 29, 2014, counsel filed a PCRA petition, raising the
claims Appellant wanted to pursue. PCRA Counsel also filed a request to
withdraw as counsel and a Turner/Finley4 no merit letter.
On November 6, 2014, the PCRA court issued notice of its intent to
dismiss the PCRA petition without a hearing pursuant to Pennsylvania Rule of
Criminal Procedure 907 and granted counsel’s motion to withdraw.
Appellant filed a response. On January 12, 2015, the PCRA court dismissed
the PCRA petition. Appellant filed a timely notice of appeal. Both Appellant
and the PCRA court complied with Pennsylvania Rule of Appellate Procedure
1925.
Appellant raises the following issues on appeal:
[1.] Whether trial court erred in not bringing [Appellant] to
trial within the time period [p]rescribed by [Pa.R.Crim.P.
600 (A)(2)(e)] and [U.S. Const. amend. VI].
[2.] Whether trial counsel was ineffective for various
reasons which include[] failure to file dismissal pursuant to
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4
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
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[Pa.R.Crim.P.] 600, failure to object to an illegal sentence,
and an involuntary guilty plea. Trial counsel’s conduct
violated [U.S. Const. amend. VI] and the three prong test
in Commonwealth v. Zook, 887 A.2d 1218,
1227([Pa.]2005).
[3.] Whether [A]ppellant has a constitutional right to raise
a claim of an illegal sentence under [U.S. Const. amend. V,
VIII, XIV] as well as Pa. Const. Art 1 § 10 as [A]ppellant
received an illegal sentence.
[4.] Whether trial court erred in accepting a plea that was
involuntary, unknowing and unintelligent[ly] rendered as a
defect was presented by way of illegality of sentence,
thereby violating [U.S. Const. amend. V, VIII, XIV].
[5.] [Whether t]he right to raise a claim under a newly
recognized right is affirmed under 42 Pa. C.S. §
9545(b)(1), (iii) and its retroactivity is applicable under
the watershed rule exception held in [Teague v. Lane,
489 U.S. 288 (1989)], and [Schriro v. Summerlin, 542
U.S. 348 (2004)].
Appellant’s Brief at 3-4.
Our standard of review from the denial of post-conviction relief “is
limited to examining whether the court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011) (citing Commonwealth v.
Morales, 701 A.2d 516, 520 (Pa.1997)).
Appellant’s first claim maintains the Commonwealth violated
Pennsylvania Rule of Criminal Procedure 600. Because Appellant could have
raised this claim on direct appeal, the claim is waived and PCRA review is
unavailable. See 42 Pa.C.S. § 9544(b).
Appellant next claims his trial counsel was ineffective for failing to file
a Rule 600 motion.
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For ineffective assistance of counsel claims, the petitioner must
establish: “(1) that the underlying claim has merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) but for
the errors or omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different.” Ousley, 21 A.3d at
1244 (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279
(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove
any one of the three [ineffectiveness] prongs results in the failure of
petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279). “Allegations 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.” Commonwealth v. Hickman, 799 A.2d
136, 141 (Pa.Super.2002) (citing Commonwealth v. Allen, 732 A.2d 582
(Pa.1999)).
Pennsylvania Rule of Criminal Procedure 600 provides, in relevant
part:
(A) Commencement of Trial; Time for Trial
(1) For the purpose of this rule, trial shall be deemed to
commence on the date the trial judge calls the case to
trial, or the defendant tenders a plea of guilty or nolo
contendere.
(2) Trial shall commence within the following time periods.
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(a) Trial in a court case in which a written complaint is filed
against the defendant shall commence within 365 days
from the date on which the complaint is filed.
...
(C) Computation of Time
(1) For purposes of paragraph (A), periods of delay at any
stage of the proceedings caused by the Commonwealth
when the Commonwealth has failed to exercise due
diligence shall be included in the computation of the time
within which trial must commence. Any other periods of
delay shall be excluded from the computation.
...
(3)(a) When a judge or issuing authority grants or denies a
continuance:
(i) the issuing authority shall record the identity of the
party requesting the continuance and the reasons for
granting or denying the continuance; and
(ii) the judge shall record the identity of the party
requesting the continuance and the reasons for granting or
denying the continuance. The judge also shall record to
which party the period of delay caused by the continuance
shall be attributed, and whether the time will be included
in or excluded from the computation of the time within
which trial must commence in accordance with this rule.
Pa.R.Crim.P. 600(A), (C). This Court has further explained:
Rule 600 provides for dismissal of charges only in cases in
which the defendant has not been brought to trial within
the term of the adjusted run date, after subtracting all
excludable and excusable time. The adjusted run date is
calculated by adding to the mechanical run date, i.e., the
date 365 days from the complaint, both excludable and
excusable delay.
Excludable time includes delay caused by the defendant or
his lawyer. Concomitantly, excusable delay occurs where
the delay is caused by circumstances beyond the
Commonwealth’s control and despite its due diligence.
Due diligence is a fact-specific concept that must be
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determined on a case-by-case basis. Due diligence does
not require perfect vigilance and punctilious care, but
rather a showing by the Commonwealth that a reasonable
effort has been put forth.
Commonwealth v. Roles, 116 A.3d 122, 125 (Pa.Super.2015) (internal
citations and quotation marks omitted).
The PCRA court found:
A criminal complaint was filed in case No. 5631-11 (drug
offenses) on July 24, 2011. The mechanical 365-day run
date for Rule 600 purposes in that case was thus July 23,
2012. In case No. 371-12 (burglary, et al), a criminal
complaint was filed on November 29, 2011. The
mechanical 365-day run date in that case was thus
November 28, 2012. [Appellant] entered his guilty plea in
Case No. 5631-11 on December 3, 2012 - 133 days after
expiration of the mechanical run date in case No. 5631-11
and five days after expiration of the mechanical run date in
case No. 371-12. The record reflects, however, the
existence of more than sufficient excludable time for Rule
600 purposes to render meritless any Rule 600 claim in
either case.
[Appellant] appeared before the [trial court] on November
22, 2011 for a scheduled Pre-Trial Conference (PTC) in
case No. 5631-11. At that time, defense counsel
requested that [Appellant’s] PTC be rescheduled by [c]ourt
[a]dministration in order to be consolidated with other
charges “not yet in system” (i.e., the charges ultimately
brought in case No. 371-12). [Appellant’s] PTC was
rescheduled for January 10, 2012. The 49 days between
November 22, 2011 and January 10, 2012 thus constitute
excludable time for Rule 600 purposes on case No. 5631-
11.
At [Appellant’s] January 10, 2012 PTC, defense counsel
once again asked that [Appellant’s] PTC be rescheduled by
[c]ourt [a]dministration. [Appellant’s] PTC was
rescheduled for February 29, 2012. The 50 days between
January 10, 2012 and February 29, 2012 thus constitute
excludable time for Rule 600 purposes on case No. 5631-
11.
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At [Appellant’s] February 29, 2012 PTC, defense counsel
again asked that [Appellant’s] PTC be rescheduled by
[c]ourt [a]dministration, to be consolidated with a PTC in
case No. 371-12. [Appellant’s] PTC was rescheduled for
May 1, 2012. The 62 days between February 29, 2012
and May 1, 2012 thus constitute[] excludable time for Rule
600 purposes on case No. 5631-11.
On May 1, 2012, [Appellant] appeared before the
undersigned for a consolidated PTC in both case No. 5631-
11 and case No. 371-12. At this time [Appellant] asked
that both cases be place on the [c]all of the [t]rial [l]ist.
The cases were scheduled for the July 13, 2012 [c]all of
the [t]rial [l]ist, at which time defense counsel requested
that the cases be relisted by [c]ourt [a]dministration
because of ongoing discovery. The cases were rescheduled
for the September 13, 2012 [c]all of the [t]rial [l]ist.
At the September 13, 2012 [c]all of the [t]rial [l]ist,
defense counsel requested that both cases be scheduled
by the [trial court] for trial. Counsel requested that Case
No. 371-12 be tried prior to Case No. 5631-11, and
characterized No. 371-12 as a four (4) day jury trial with
pre-trial motions. The [trial court] subsequently entered
an order scheduling Case No. 371-12 for trial during the
week of December 3, 2012, with a status conference
scheduled for December 3. [Appellant] then entered his
guilty plea during the December 3, 2012 status
conference.
As noted above, the mechanical 365-day run date on Case
No. 5631-11 was July 23, 2012, with [Appellant] entering
his guilty plea on December 3, 2012, 133 days after that
mechanical run date. As detailed above, however,
[Appellant’s] requests for rescheduling resulted in an
aggregate excludable time of 161 days, meaning that
[Appellant] was scheduled for trial and entered his guilty
plea well within the adjusted run date accounting for the
period of delay occasioned by [Appellant’s] requests.
Counsel, further, had requested that Case No. 5631-11 not
be tried until after case No. 371-12. Any Rule 600 motion
on Case No. 5631-11 would thus have been without merit,
and defense counsel cannot be faulted for not filing and
litigating such a motion.
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In regard to Case No. 371-12, as noted above, the
mechanical run date was November 28, 2012. [Appellant],
again, entered his guilty plea on December 3, 2012, five
days after expiration of that mechanical run date.
Pa.R.Crim.P. 600(C)(l) plainly provides, however, that only
periods of delay caused by the Commonwealth are
included in the computation of the date upon which a
defendant must be brought to trial, specifying that “any
other periods of delay shall be excluded from the
computation.” When [Appellant] requested on September
13, 2012 that case No. 371-12 be scheduled by the
undersigned for trial, the date upon which [Appellant] was
called for trial became subject to the [the trial court’s] trial
schedule and not to any further action on the part of the
Commonwealth. The “delay” between defendant’s
September 13, 2012 request, that trial be scheduled and
December 3, 2012 is thus attributable not to the
Commonwealth, but to the necessity of the fitting a four-
day jury trial with pretrial motions into the [the trial
court’s] trial calendar. In this regard we note that, while
[Appellant’s] mechanical run date expired on Wednesday
November 28, 2012, [Appellant] was called for trial and
entered his guilty plea on Monday December 3, 2012, only
five days later. Any Rule 600 claim on Case No. 371-12
would thus have been without merit, and defense counsel
cannot be found ineffective for not litigating such a claim.
Pa.R.A.P. 1925(a) Opinion, 4/8/2015, at 8-11. The PCRA court did not err
when it found the Rule 600 claim, and the counsel ineffectiveness claim for
failing to raise the Rule 600 claim, was meritless.
Appellant’s third, fourth, and fifth issues maintain the trial court used
an improper offense gravity score when sentencing Appellant, which resulted
in an unknowing and involuntary plea and/or an illegal sentence. He claims
he pled guilty to burglary when no one was present, but the trial court used
the offense gravity score applicable to a burglary when someone was
present. See Appellant’s Brief at 16-26. Appellant also maintains that the
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trial court’s use of an allegedly inaccurate offense gravity score violated
Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
To the extent Appellant challenges his sentence based on an allegedly
inaccurate offense gravity score, his claim is a challenge to the discretionary
aspect of his sentence. See Commonwealth v. Lamoda, 52 A.3d 365,
371-72 (Pa.Super.2012). Such challenges are not cognizable on PCRA and
is waived because he could have raised it on direct appeal. 42 Pa.C.S. §
9543.
Further, to the extent Appellant claims counsel was ineffective for
failing to challenge the sentence, the claim also fails. The PCRA court found
the claim meritless. 1925(a) Opinion, 4/8/2015, 12-14. Appellant pled
guilty to one count of burglary and the Commonwealth nolle prossed the
remaining 32 counts of burglary. Appellant admitted to the facts contained
in the affidavit, which included burglary counts where no one was present
and burglary counts where individuals were present. Further, at the hearing
on Appellant’s motion to withdraw his guilty plea, Appellant admitted that
persons were present in the home for one of the burglaries. N.T., 6/6/2013,
at 10. The trial court did not err in using the offense gravity score applicable
to a burglary where an individual was present and the PCRA court did nor err
in finding this claim meritless. Because the underlying claim is meritless,
counsel is not ineffective for failing to raise it. See Ousley, 21 A.3d at
1244.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2015
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