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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID ANTONIO RUFFIN
Appellant No. 378 MDA 2016
Appeal from the PCRA Order January 21, 2016
in the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000023-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 30, 2016
David Antonio Ruffin (“Appellant”) appeals from the dismissal of his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§ 9541 et seq. After careful review, we affirm.
On April 6, 2015, Appellant pleaded guilty to institutional vandalism, 1
resisting arrest,2 retail theft,3 and disorderly conduct.4 Appellant’s counsel
field a petition for appeal bail, which the trial court denied. On May 20,
2015, the trial court sentenced Appellant to pay a fine of $50.00 for the
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1
18 Pa.C.S. § 3307.
2
18 Pa.C.S. § 5104.
3
18 Pa.C.S. § 3929.
4
18 Pa.C.S. § 5503.
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retail theft and an aggregate sentence of eight to thirty months’
incarceration on the other convictions.5 Appellant did not file a direct
appeal.
On July 23, 2015, Appellant filed a timely PCRA petition.6 The
Commonwealth filed its answer to the petition on September 1, 2015. On
October 22, 2015, appointed PCRA counsel filed a Turner/Finley7 no-merit
letter in which he indicated there were no meritorious issues, together with a
petition to withdraw. On December 8, 2015, the PCRA court filed a
Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition without a
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5
Specifically, the trial court sentenced Appellant to consecutive sentences of
three to twelve months’ incarceration for the institutional vandalism
conviction, three to twelve months’ incarceration for the resisting arrest
conviction, and two to six months’ incarceration for the disorderly conduct
conviction. Each sentence was a standard range sentence.
6
The allegations contained within Appellant’s PCRA petition included, in their
entirety:
I never spit on nobody. I never caused any damage to
Carbondale Police Station nor threw ceiling panels at officers. I
only attempted to steal one bag of chips, I payed [sic] for the
rest.
I have never escaped from any institution.
I need a different attorney. He failed to file motion of
reconsideration, and the plea bargain, for time served.
PCRA Petition, p. 4.
7
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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hearing (“Notice of Intent to Dismiss”),8 to which Appellant responded on
December 28, 2015. On January 21, 2016, the PCRA court dismissed the
petition.9 On February 11, 2016, Appellant filed a timely notice of appeal.
Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.10
In his pro se brief, filed with this Court on May 19, 2016, Appellant
raises the following issues for review:
1. Whether the representation afforded to appellant was
defective when his attorney erred in putting no effert into
appellant bail reduction petition, when counsel was first afforded
to appellant.
2. Whether appellant’s plea of guilty was unconstitutional when
the court and my (appellant) attorney erred in not informing me
the true nature of the charges against me, not providing me with
the correct statute description(s).
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8
In its Notice of Intent to Dismiss, the PCRA court rephrased Appellant’s
issues as (1) an assertion “that the description of the crimes alleged by the
Commonwealth is incorrect, and [(2)] that [Appellant] was promised a
sentence of time served but did not receive it.” Notice of Intent to Dismiss,
p. 2. The PCRA court further acknowledged that Appellant attempted to
raise an illegal sentence claim in response to appointed counsel’s
Turner/Finley letter. See id.
9
On August 17, 2016, this Court remanded this matter out of an abundance
of caution to determine whether the PCRA court had actually granted
appointed PCRA counsel’s petition to withdraw. See Commonwealth v.
Ruffin, 378 MDA 2016 (unpublished memorandum). On August 23, 2016,
the PCRA court entered an order confirming that, on December 8, 2015, it
had entered an order allowing PCRA counsel to withdraw. See Docket No.
CP-35-CR-0000023-2015, p. 7.
10
The PCRA court’s Pa.R.A.P. 1925(a) opinion, filed April 7, 2016, adopts the
reasoning contained in the court’s December 8, 2015 Notice of Intent to
Dismiss as its 1925(a) opinion.
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3. Whether the representation afforded to appellant was
defective in not investigating and or performing certain pretrial
functions.
4. Whether representation afforded to appellant was defective
when attorney erred in introducing appellant’s mental health
evaluation, misconduct’s received at Lackawanna county prison,
and out-of-state warrants.
5. Whether representation afforded to appellant was defective
when attorney erred in not objecting to the admissibility of
appellant’s misconduct’s received at Lackawanna county prison
(LCP), the colored uniform used to designated RHU (restricted
housing unit) status, out-of-state warrants, mental health
evaluation, and district attorney introducing details of the case
that were not in the affidavit.
6. Whether my plea of guily was unconstitutional when the trial
court erred in allowing me (appellant) to continue entering my
plea of guilty accepting my plea of guilty after representation
afforded to me yell at me, using double entendre that ment to
me a threat after the trial court asked me did I pull down ceiling
tille panels in the Carbondale Police Station bathroom.
7. Whether my conviction was based upon evidence the
prosecution and my attorney knew or should have known was
false.
8. Whether attorney afforded to appellant was defevtive and
ineffective when attorney erred in not filing an appeal although
appellant would have wanted to file one.
9. Whether appellant was denied his Eighth Amendment right to
be free from excessive fines, costs, and cruel and unusual
punishment
10. whether the trial court erred in sentencing appellant outside
the standard and aggravated ranges of appellant’s guidelines
and did not state valid reason for aggravated sentence.
Appellant’s Brief, Statement of Questions Presented11 (verbatim).
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11
Appellant does not begin numbering his brief until the Argument section.
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Our standard of review is well-settled. “In reviewing the denial of
PCRA relief, we examine whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Fears,
86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).
“The PCRA court’s findings will not be disturbed unless there is no support
for the findings in the certified record.” Commonwealth v. Barndt, 74
A.3d 185, 191-192 (Pa.Super.2013) (internal quotations and citations
omitted). “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.” Commonwealth v. Spotz, 84 A.3d 294,
311 (Pa.2014) (citation omitted). “It is well-settled that a PCRA court’s
credibility determinations are binding upon an appellate court so long as
they are supported by the record.” Commonwealth v. Robinson, 82 A.3d
998, 1013 (Pa.2013) (citation omitted). However, this Court reviews the
PCRA court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d
1080, 1084 (Pa.Super.2014) (citation omitted).
Appellant first claims trial counsel was ineffective for failing to put any
effort into his bail petition. See Appellant’s Brief, p. 1. This issue is waived
and lacks merit.
Initially, while Appellant did raise a claim in his PCRA petition that trial
counsel failed to file a motion for reconsideration or obtain an alleged time
served plea deal, Appellant did not raise a claim pertaining to counsel
ineffectiveness resulting from a lack of effort put into a bail petition.
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Accordingly, Appellant waived this issue for review. See Commonwealth
v. Jones, 912 A.2d 268, 278 (Pa.2006) (“an issue is waived where it was
not presented in the original or amended PCRA petition below”).
Further, even had Appellant properly raised the issue, it lacks merit.
Pennsylvania courts apply the Pierce12 test to review claims of ineffective
assistance of counsel:
When a petitioner alleges trial counsel’s ineffectiveness in a
PCRA petition, he must prove by a preponderance of the
evidence that his conviction or sentence resulted from 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. We have interpreted this provision in the PCRA to
mean that the petitioner must show: (1) that his claim of
counsel’s ineffectiveness has merit; (2) that counsel had no
reasonable strategic basis for his action or inaction; and (3) that
the error of counsel prejudiced the petitioner-i.e., that there is a
reasonable probability that, but for the error of counsel, the
outcome of the proceeding would have been different. We
presume that counsel is effective, and it is the burden of
Appellant to show otherwise.
Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal
citations and quotations omitted). The petitioner bears the burden of
proving all three prongs of this test. Commonwealth v. Meadows, 787
A.2d 312, 319-320 (Pa.2001). “If an appellant fails to prove by a
preponderance of the evidence any of the Pierce prongs, the Court need not
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12
Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
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address the remaining prongs of the test.” Commonwealth v. Fitzgerald,
979 A.2d 908, 911 (Pa.2010) (citation omitted).
Here, at the guilty plea hearing, trial counsel argued for Appellant to
remain free on appeal bail following his guilty plea. N.T. 4/6/2015, pp. 8-
12. The trial court’s denial of the request does not transform counsel’s
advocacy into ineffective assistance. See Commonwealth v. Chester, 587
A.2d 1367 (Pa.1991) (a court may not make a finding of ineffectiveness
merely because a trial strategy was unsuccessful).
Next, Appellant claims that his guilty plea was unconstitutional
because trial counsel failed to inform him of the true nature of the charges
against him. See Appellant’s Brief, p. 1. Initially, Appellant did not raise
this claim in his PCRA petition, and it is accordingly waived. Further, trial
counsel and the trial court explained the nature of the charges Appellant
faced at his guilty plea hearing. See 4/6/2016, pp. 2, 4, 5-7. Accordingly,
this claim also lacks merit.
Thirdly, Appellant claims counsel failed to investigate his case and that
the Commonwealth failed to proffer sufficient evidence to convict him of
institutional vandalism. See Appellant’s Brief, pp. 1-2. Appellant did not
raise these claims in his PCRA petition, and they are waived. Further,
Appellant waived these evidence-based claims when he pleaded guilty. See
Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa.2014) (“upon entry
of a guilty plea, a defendant waives all claims and defenses other than those
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sounding in the jurisdiction of the court, the validity of the plea, and what
has been termed the “legality” of the sentence imposed”).
In his fourth claim, Appellant argues trial counsel provided ineffective
assistance of counsel by introducing a mental health evaluation. See
Appellant’s Brief, p. 2. This claim is also waived because Appellant did not
raise it in his PCRA petition. Further, the guilty plea transcript reveals
counsel mentioned Appellant’s mental health evaluation in the course of
Appellant’s bail motion, after Appellant’s guilty plea had been entered. See
N.T. 4/6/2016, pp. 9-11. Accordingly, this claim fails.
Fifth, Appellant claims counsel was ineffective for failing to object to
the admissibility of Appellant’s conduct at Lackawanna County Prison in
relation to the trial court’s imposition of his sentence. See Appellant’s Brief,
p. 3. This issue is waived by Appellant’s failure to object at sentencing and
failing to raise it in his PCRA petition. Further, a defendant’s conduct in
prison is admissible for the trial court’s consideration in imposing sentence.
See Commonwealth v. Anderson, 830 A.2d 1013, 1017 n.3
(Pa.Super.2003) (noting that conduct during incarceration appropriate to
consider at sentencing because it is not otherwise accounted for in
Sentencing Guidelines). Accordingly, this claim too fails.
In his sixth claim, Appellant argues that the trial court erred in
allowing him to plead guilty after trial counsel yelled at him. See Appellant’s
Brief, pp. 3-4. This claim is waived for Appellant’s failure to raise it in his
PCRA petition. Additionally, the guilty plea transcript reveals that Appellant
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knowingly, intelligently, and voluntarily entered his plea with the court. See
4/6/2015, pp. 3-8. Accordingly, in addition to being waived, this claim lacks
merit.
Seventh, Appellant claims the prosecution withheld exculpatory
evidence from the defense. See Appellant’s Brief, p. 4. Appellant waived
this claim by failing to raise it in his PCRA petition and by pleading guilty.
Appellant’s eighth claim contends trial counsel was ineffective for
failing to file a direct appeal. See Appellant’s Brief, p. 5. While a petitioner
is ordinarily entitled to automatic reinstatement of his direct appeal rights
when counsel fails to file a requested direct appeal,13 Appellant waived this
claim by failing to raise it in his PCRA petition.
In his ninth claim, Appellant claims the imposition of court costs and a
$50.00 fine for retail theft violated his Eighth Amendment right to be free
from cruel and usual punishment. See Appellant’s Brief, pp. 5-6. Appellant
waived this claim by failing to raise it in his PCRA petition. Further, in light
of the fact Appellant faced a maximum fine of $300.00 for his retail theft
conviction, his $50.00 fine did not constitute cruel or unusual punishment.
Finally, court costs are not a “punishment” governed by the Eighth
Amendment. See Commonwealth v. Ciptak, 657 A.2d 1296, 1297
(Pa.Super.1995), appeal granted, order rev’d on other grounds, 665 A.2d
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13
See Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa.Super.2011).
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1161 (Pa.1995) (citations omitted) (“A defendant who has been convicted of
a crime, [sic] is liable for the costs of prosecution . . . The defendant’s
liability for costs is not part of the punishment for the offense, and it is not a
sentence to pay something additional to any penalty imposed by law.
Instead, the costs of prosecution are incident to judgment.”). This claim
fails.
Finally, Appellant’s tenth claim alleges the trial court erred in
sentencing him outside the standard and aggravated range of the
Sentencing Guidelines. See Appellant’s Brief, p. 6. Again, Appellant waived
this claim by failing to include it in his PCRA petition. Further, contrary to
Appellant’s claims, the trial court sentenced Appellant within the standard
range, despite Appellant’s terrible conduct at the Lackawanna County Prison.
See N.T. 5/20/2015, p. 6. Accordingly, Appellant’s tenth claim lacks merit.
Appellant’s claims fail for the reasons stated above. Accordingly, we
affirm the order of the PCRA court dismissing Appellant’s PCRA petition.
Order affirmed. Appellant’s applications for bail, release, and
correction of the original record denied.14 Appellant’s application to expedite
denied as moot.15
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14
Appellant filed applications for bail on April 19, May 11, 2016, and August
25, 2016, an application for correction of the record on May 5, 2016, and
applications for release on June 22 and July 11, 2016.
15
Appellant filed a “Motion for Expediant [sic] Rule” on October 5, 2016.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2016
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