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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SHAWN JAMES HAMILTON, :
:
Appellant : No. 1072 MDA 2015
Appeal from the PCRA Order May 18, 2015
in the Court of Common Pleas of Luzerne County,
Criminal Division, at No(s): CP-40-CR-0003751-2012
CP-40-CR-0000099-2013
BEFORE: MUNDY, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 17, 2016
Shawn James Hamilton (Appellant) appeals from an order which
denied his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. In addition, Appellant’s counsel seeks to withdraw
his representation of Appellant pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc). We affirm the order and grant counsel’s application
to withdraw.
On October 24, 2012, Appellant was charged at CP-40-CR-0003751-
2012 (3751-2012) with three counts of criminal homicide, one count of
criminal attempt homicide, and four counts of robbery for his involvement in
an incident that occurred on July 7, 2012. On December 10, 2012, the
Commonwealth fled notice of its intent to seek the death penalty against
*Retired Senior Judge assigned to the Superior Court.
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Appellant, and this case was consolidated with that of Appellant’s brother
and co-defendant, Sawud Davis.
Subsequently, on December 13, 2012, Appellant was charged at CP-
40-CR-0000099-2013 (99-2013) with one count of criminal homicide in
connection with a shooting that occurred on July 6, 2012.
Allyson Kacmarski, Esquire, and Robert Buttner, Esquire, were court-
appointed to handle the guilt phase of 3751-2012.1 Mark Bufalino, Esquire,
was later appointed to handle the penalty phase of trial. Appellant’s defense
team also included a private investigator (hired before Appellant’s
preliminary hearing) and Louise Luck, a mitigation specialist.
On December 20, 2013, Appellant entered into a plea agreement with
respect to both cases. Specifically, at 3751-2012, Appellant pled guilty to
three counts of criminal homicide and one count of criminal attempt
homicide and, at 99-2013, he pled guilty to one count of criminal homicide.
In exchange, the Commonwealth agreed to withdraw the remaining charges
at both criminal informations and indicated it would not seek the death
penalty in either case. Appellant waived his right to a pre-sentence
investigation and proceeded immediately to sentencing. The trial court
imposed four consecutive life sentences at each criminal homicide count, and
1
Because she was already handling Appellant’s death penalty case, Attorney
Kacmarski volunteered to be court-appointed to represent Appellant on 99-
2013.
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a consecutive term of twenty to forty years’ imprisonment at the criminal
attempt homicide charge.
Appellant did not file a direct appeal. On April 24, 2014, Appellant pro
se filed a PCRA petition. Counsel was appointed and an amended petition
was filed. On May 1, 2015, the PCRA court held a hearing. At the hearing,
Appellant argued only claims of trial counsel ineffectiveness, alleging that he
was left with no choice but to plead guilty due to his attorneys’ poor case
preparation, failure to investigate and failure to provide him with discovery,
as well as the mitigation specialist’s alleged statement that she was not
going to work for him because Luzerne County was not paying her. N.T.,
7/17/2015, at 3-44.
On May 18, 2015, the PCRA court issued an order denying Appellant’s
petition. This timely appeal followed. Thereafter, PCRA counsel sought from
this Court leave to withdraw his representation of Appellant pursuant to
Turner/Finley. On January 14, 2016, Appellant filed pro se a response to
counsel’s petition to withdraw raising issues of trial and PCRA counsel
ineffectiveness.
Before we may address the potential merit of Appellant’s claims, we
must determine if counsel has complied with the technical requirements of
Turner and Finley.
… Turner/Finley counsel must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the
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nature and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of
the “no-merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
If counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not reach the
merits of the underlying claims but, rather, will merely deny
counsel’s request to withdraw. Upon doing so, the court will
then take appropriate steps, such as directing counsel to file a
proper Turner/Finley request or an advocate’s brief.
However, where counsel submits a petition and no-merit
letter that do satisfy the technical demands of Turner/Finley,
the court—trial court or this Court—must then conduct its own
review of the merits of the case. If the court agrees with
counsel that the claims are without merit, the court will permit
counsel to withdraw and deny relief. By contrast, if the claims
appear to have merit, the court will deny counsel’s request and
grant relief, or at least instruct counsel to file an advocate’s
brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)
(citations omitted).
We are satisfied that counsel has complied with the technical
requirements of Turner and Finley. Therefore, we will consider the
substantive issues contained in counsel’s brief.
Appellant’s overarching claim on appeal is that the ineffective
assistance of his trial counsel rendered his guilty plea involuntary and
unknowing. Specifically, Appellant claims that counsel was ineffective
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alleging: (1) two attorneys on his defense team, Attorneys Bufalino and
Buttner, were not death penalty certified at the time of his plea, (2) counsel
was aware of Appellant’s mental health issues, but nonetheless allowed him
to plead guilty, and (3) counsel failed to provide Appellant with discovery,
failed to investigate properly and were unprepared for trial; thus, Appellant
had no choice but to plead guilty. Turner/Finley Brief at 11.
Our standard and scope of review is well-settled:
[A]n appellate court reviews the PCRA court’s findings of
fact to determine whether they are supported by the record, and
reviews its conclusions of law to determine whether they are free
from legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.
To establish trial counsel’s ineffectiveness, a petitioner
must demonstrate: (1) the underlying claim has arguable merit;
(2) counsel had no reasonable basis for the course of action or
inaction chosen; and (3) counsel’s action or inaction prejudiced
the petitioner.
Furthermore,
[A] PCRA petitioner will be granted relief only when
he proves, by a preponderance of the evidence, that
his conviction or sentence resulted from the
ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined
the truth-determining process that no reliable
adjudication of guilt or innocence could have taken
place. 42 Pa.C.S. § 9543(a)(2)(ii). Counsel is
presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel’s
performance was deficient and that such deficiency
prejudiced him.
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Counsel’s assistance is deemed constitutionally effective once
this Court determines that the defendant has not established any
one of the prongs of the ineffectiveness test.
Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)
(internal quotation marks and citations omitted).
Additionally,
It is clear that a criminal defendant’s right to
effective counsel extends to the plea process, as well
as during trial. However, [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.
[T]he law does not require that [the defendant] be pleased with
the outcome of his decision to enter a plea of guilty: All that is
required is that [his] decision to plead guilty be knowingly,
voluntarily, and intelligently made.
With regard to an attorney’s duty to investigate, the Supreme
Court has noted that the reasonableness of a particular
investigation depends upon evidence known to counsel, as well
as evidence that would cause a reasonable attorney to conduct a
further investigation. With regard to the voluntariness of a plea,
a guilty plea colloquy must affirmatively demonstrate the
defendant understood what the plea connoted and its
consequences. Once the defendant has entered a guilty plea, it
is presumed that he was aware of what he was doing, and the
burden of proving involuntariness is upon him. Competence to
plead guilty requires a finding that the defendant comprehends
the crime for which he stands accused, is able to cooperate with
his counsel in forming a rational defense, and has a rational and
factual understanding of the proceedings against him.
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Commonwealth v. Willis, 68 A.3d 997, 1001-02 (Pa. Super. 2013)
(citations and quotation marks omitted).
With respect to Appellant’s first allegation of ineffectiveness, Rule of
Criminal Procedure 801 sets forth the qualifications for defense counsel in
capital cases and mandates that “[i]n all cases in which the district attorney
has filed a Notice of Aggravating Circumstances pursuant to Rule 802, before
an attorney may participate in any stage of the case either as retained or
appointed counsel, the attorney must meet the educational and experiential
criteria set forth in this rule.” Pa.R.Crim.P. 801. However, the Comment to
the Rule provides that
[a]n attorney may serve as “second chair” in a capital case
without meeting the educational or experience requirements of
this rule. “Second chair” attorneys may not have primary
responsibility for the presentation of significant evidence or
argument, but may present minor or perfunctory evidence or
argument, if deemed appropriate in the discretion of the court.
Service as a “second chair” in a homicide case will count as a
trial for purposes of evaluating that attorney’s experience under
paragraph (1)(c) of this rule.
Pa.R.Crim.P. 801, Comment.
Appellant’s bald allegation that Attorneys Bufalino and Buttner were
non-compliant with Rule 801 is not supported by the record. Neither
attorney about whom Appellant complained was called to testify at the PCRA
hearing. However, Appellant’s lead defense attorney, Allyson Kacmarski,
testified that she was certified properly under Rule 801 during her
representation of Appellant, that she was counsel of record, and that she
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handled all record matters in the case. N.T., 7/17/2015, at 40. Moreover,
Attorney Kacmarski testified that she reached out to Attorney Bufalino for
advice about mitigation experts soon after being appointed to represent
Appellant because she was aware Attorney Bufalino had recently tried a
death penalty case. Id. The PCRA court found this testimony credible. PCRA
Court Opinion, 5/18/2015, at 4 (unpaginated). “A claim has arguable merit
where the factual averments, if accurate, could establish cause for relief.”
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013).
Because the record establishes that Appellant’s lead counsel was Rule 801
compliant,2 and because the Comment to the Rule permits non-complaint
attorneys to serve as second chair, we agree with counsel that Appellant’s
claim of ineffectiveness in this regard is without merit. See Freeland, 106
A.3d at 775.
Appellant next contends that his attorneys were ineffective because
they permitted him to plead guilty despite his alleged “mental health issues.”
Turner/Finley Brief at 20-21; Appellant’s Response at 3-4.3
A defendant is presumed to be competent to stand trial.
Thus, the burden is on Appellant to prove, by a preponderance
2
Indeed, Attorney Kacmarski’s testimony, and Attorney Bufalino’s
appointment to Appellant’s defense team specifically to handle the penalty
portion of trial, suggests that Attorney Bufalino was properly certified.
3
As counsel points out, the issue of Appellant’s mental health and its effect
on the voluntariness of his plea was not addressed during Appellant’s PCRA
hearing, although this claim was included in his PCRA petition.
Turner/Finley Brief at 20-21.
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of the evidence, that he was incompetent to stand trial. In order
to prove that he was incompetent, Appellant must establish that
he was either unable to understand the nature of the
proceedings against him or to participate in his own defense.
Commonwealth v. Rainey, 928 A.2d 215, 236 (Pa. 2007).
The record is devoid of any evidence that Appellant had a mental
health issue that would prevent him from entering a knowing, intelligent or
voluntary guilty plea. Accordingly, we hold that Appellant has failed to meet
his burden and is entitled to no relief.
Next, Appellant contends that counsel was ineffective for failing to
investigate his case, provide him with discovery, or prepare him adequately
for trial. Turner/Finley Brief at 11; Appellant’s Response at 7. As stated
above, with regard to an attorney’s duty to investigate, “the reasonableness
of a particular investigation depends upon evidence known to counsel, as
well as evidence that would cause a reasonable attorney to conduct a further
investigation.” Willis, 68 A.3d at 1002.
At the PCRA hearing, Appellant admitted that Attorney Kacmarski met
with him at the jail to discuss his case approximately 30 times before his
trial date. N.T., 7/17/2015, at 5. Each of those meetings lasted
approximately one hour; however, Appellant claimed he could not recall
what they discussed. Id. at 5-6. Appellant contended that he never received
his discovery from Attorney Kacmarski and that no one discussed trial
strategy with him prior to his plea. Id. at 7, 10.
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Attorney Kacmarski agreed that she met with Appellant at the county
jail approximately 30 times and stated that she had an investigator
appointed prior to the preliminary hearing. Id. at 31-32. She testified that,
once the Commonwealth gave notice of its intent to seek the death penalty,
she accepted Attorney Bufalino’s offer to handle the death penalty phase of
trial and petitioned the court to appoint him. Id. at 14. Additionally, she
received and reviewed the discovery for each of Appellant’s cases and
physically visited both crime scenes. Id. at 36. However, due to the volume
and sensitive nature of information contained in Appellant’s discovery
packets, she did not provide him with a copy, although she did bring
portions of the discovery to the jail to discuss with him. Id. at 35-36, 42.
Attorney Kacmarski testified that she discussed the possibility of a
guilty plea with Appellant after receiving a letter from him in which he
expressed a desire to plead guilty in an effort to help his co-defendant
brother avoid a life sentence. Id. at 32-34. Accordingly, she and the
attorney appointed to represent Appellant’s brother negotiated a deal with
the Commonwealth in which the Commonwealth agreed to recommend a 20-
to-40 year sentence for Appellant’s brother in exchange for Appellant’s guilty
plea. Id. at 33-34.
Once again, the trial court credited Attorney Kacmarski’s testimony.
Having determined that counsel’s action was reasonable, the court and
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counsel concluded that Appellant’s claim of ineffective assistance of counsel
on this basis did not entitle him to relief. We agree.
Appellant’s next issue deals with the alleged non-payment of the
mitigation specialist retained for the penalty phase portion of his case.
Turner/Finley Brief at 23. At his PCRA hearing, Appellant testified that the
specialist, Louise Luck, relayed a message to him through his mother that
“she won’t be working anymore because the county isn’t paying her.” N.T.,
7/17/2015, at 26. Appellant did not discuss this issue with his attorneys, id.
at 19-20, nor did they discuss this potential issue with him. Id. at 26. Ms.
Luck was not called to testify at the PCRA hearing.
When asked about this allegation at the PCRA hearing, Attorney
Kacmarski testified that Ms. Luck had completed a large amount of work for
the penalty phase of Appellant’s trial prior to his decision to plead guilty. Id.
at 37-38. Attorney Kacmarski was unaware of any issues with Ms. Luck’s
payment as Ms. Luck was working primarily with Attorney Bufalino on the
penalty phase of trial, but she knew there was “no objection” from the court
to keep paying Ms. Luck due to her important role in the case. Id. at 37-38.
Once more, Appellant is unable to prove that counsel was ineffective
for failing to investigate an issue of which she had no knowledge. Willis, 68
A.3d at 1002. Additionally, the testimony credited by the PCRA court belies
Appellant’s contention. Accordingly, we agree with counsel that this issue
merits him no relief.
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Based on the foregoing, we agree with counsel that the issues
Appellant raises in this appeal are meritless.4 Accordingly, the PCRA court
did not abuse its discretion in denying Appellant’s petition. Therefore, we
grant counsel’s petition to withdraw, and affirm the PCRA court’s May 18,
2015 order.
Order affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
4
In his pro se response to counsel’s Turner/Finley brief, Appellant raises
the issues addressed above, as well as new claims of PCRA counsel
ineffectiveness. Appellant’s Response at 3-10. “Claims of PCRA counsel's
ineffectiveness may not be raised for the first time on appeal.”
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc).
Instead, such claims must be raised either immediately before the PCRA
court or in a serial petition. Id. Accordingly, we find Appellant’s new
ineffectiveness claims non-cognizable.
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