J-S86040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TOM HAL CORNELISON, III
Appellant No. 891 WDA 2016
Appeal from the PCRA Order April 5, 2016
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000769-2011
BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 5, 2016
Appellant, Tom Hal Cornelison, III, appeals from the order entered in
Cambria County Court of Common Pleas, which denied his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
In March 2011, Appellant was dating Dora Vetter. On March 26, 2011,
Appellant broke open the front door of Ms. Vetter’s apartment while she was
away. Appellant caused additional property damage inside the apartment
and left the residence in disarray. A jury convicted Appellant of burglary,
criminal trespass, and criminal mischief. The trial court sentenced Appellant
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
_____________________________
*Former Justice specially assigned to the Superior Court.
J-S86040-16
on July 19, 2012, to an aggregate term of twenty (20) to forty (40) months’
incarceration. On June 7, 2013, Appellant filed a PCRA petition seeking
reinstatement of his post-sentence and direct appeal rights nunc pro tunc,
which the PCRA court granted. This Court affirmed the judgment of
sentence on November 17, 2014. See Commonwealth v. Cornelison, No.
1913 WDA 2013, unpublished memorandum (Pa.Super. filed November 17,
2014).
On May 18, 2015, Appellant timely filed a pro se PCRA petition raising
a multitude of claims challenging his sentence and the effectiveness of prior
counsel. The PCRA court appointed counsel. Following an evidentiary
hearing, the court granted in part and denied in part Appellant’s PCRA
petition on April 5, 2016. The court denied relief with respect to all issues
except Appellant’s claim that the trial court sentenced him based on an
inadequate presentence investigation (“PSI”) report and without stating
reasons on the record for the sentence imposed.2 The PCRA court’s order
directed the court administrator to schedule a resentencing hearing. The
trial court resentenced Appellant on May 19, 2016, and re-imposed the same
aggregate sentence of twenty (20) to forty (40) months’ incarceration.
Appellant filed a post-sentence motion on May 24, 2016, which the court
denied on May 27, 2016. On June 1, 2016, Appellant filed a notice of appeal
____________________________________________
2
The PCRA court’s partial sentencing relief is not at issue in this appeal.
-2-
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from the PCRA court’s April 5, 2016 order denying other aspects of his
petition. The court ordered Appellant to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b), and Appellant timely
complied.
As a preliminary matter, the timeliness of an appeal is a jurisdictional
question and this Court may raise the issue sua sponte. Commonwealth v.
Trinidad, 96 A.3d 1031 (Pa.Super. 2014), appeal denied, 627 Pa. 758, 99
A.3d 925 (2014). “[T]he notice of appeal required by Rule 902 (manner of
taking appeal) shall be filed within 30 days after the entry of the order from
which the appeal is taken.” Pa.R.A.P. 903(a). Absent extraordinary
circumstances such as fraud or some breakdown in the processes of the
court, this Court has no jurisdiction to entertain an untimely appeal.
Commonwealth v. Patterson, 940 A.2d 493 (Pa.Super. 2007), appeal
denied, 599 Pa. 691, 960 A.2d 838 (2008).
In general, appeals are properly taken from final orders.
See Pa.R.A.P. 341(b)(2) (stating…appeal lies from…order
that “is expressly defined as a final order by statute[]”). …
Pennsylvania Rule of Criminal Procedure 910 governs PCRA
appeals and provides as follows.
An order granting, denying, dismissing, or otherwise
finally disposing of a petition for post-conviction
collateral relief shall constitute a final order for
purposes of appeal.
Pa.R.Crim.P. 910. By its plain text, Rule 910 has no
exceptions. It is absolute.
Commonwealth v. Gaines, 127 A.3d 15, 17 (Pa.Super. 2015) (en banc)
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(holding PCRA court’s order, which granted defendant’s sentencing claim and
denied all other claims, was final appealable order; time to file appeal began
to run on date of that order, rather than on date of resentencing).
Pennsylvania Rule of Criminal Procedure 908 governs the disposition of
a PCRA petition following a hearing and provides in pertinent part:
Rule 908. Hearing
* * *
(E) If the judge disposes of the case in open court in the
presence of the defendant at the conclusion of the hearing,
the judge shall advise the defendant on the record of the
right to appeal from the final order disposing of the
petition and of the time within which the appeal must be
taken. If the case is taken under advisement, or when the
defendant is not present in open court, the judge, by
certified mail, return receipt requested, shall advise the
defendant of the right to appeal from the final order
disposing of the petition and of the time limits within which
the appeal must be filed.
Pa.R.Crim.P. 908(E). See also Commonwealth v. Meehan, 628 A.2d
1151 (Pa.Super. 1993), appeal denied, 538 Pa. 667, 649 A.2d 670 (1994)
(excusing untimeliness of appeal from denial of PCRA petition, where PCRA
court failed to advise petitioner of his right to appeal pursuant to Rule
908(E)).
Instantly, the PCRA court entered an order granting in part and
denying in part Appellant’s PCRA petition on April 5, 2016. A copy of the
order was mailed to Appellant and Appellant’s counsel on that same date.
The PCRA court’s order disposed of all claims in Appellant’s PCRA petition,
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ending the PCRA proceedings. The fact that the order provided for
resentencing did not toll the appeal period, as resentencing is a trial court
function. Therefore, the April 5, 2016 order was final and immediately
appealable. See Gaines, supra. The time to file an appeal from the order
expired on May 5, 2016. See Pa.R.A.P. 903(a). Appellant filed his notice of
appeal on June 1, 2016, shortly after the trial court denied his post-sentence
motion following resentencing. Thus, Appellant’s notice of appeal was
facially untimely. Nevertheless, the certified record contains no indication
that the PCRA court advised Appellant of his right to appeal from the April 5,
2016 order or the deadline for filing an appeal, as required by Pa.R.Crim.P.
908(E). The PCRA court’s failure to comply with Rule 908 constituted a
breakdown in the operations of the court, which excuses Appellant’s late
filing of his notice of appeal. See Patterson, supra; Meehan, supra.
Under these circumstances, we decline to dismiss the appeal as untimely
and proceed to address the issues raised in Appellant’s brief.
Appellant raises the following issues for our review:
WHETHER TRIAL COUNSEL…PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO INFORM
[APPELLANT] OF THE COMMONWEALTH’S PLEA OFFER TO
CRIMINAL TRESPASS PRIOR TO PROCEEDING TO JURY
TRIAL.
WHETHER TRIAL COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE AT TRIAL BY:
A) FAILING TO CROSS-EXAMINE JUDITH LITKO
REGARDING AN INCONSISTENT STATEMENT;
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B) FAILING TO CROSS-EXAMINE [DORA] VETTER
REGARDING WITNESS INTIMIDATION AND BRIBERY;
C) FAILING TO ADEQUATELY EXPLAIN THE
UNAVAILABILITY OF AN “INTOXICATION DEFENSE” TO
[APPELLANT] PRIOR TO TRIAL.
(Appellant’s Brief at 3).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal
denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference
to the findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We owe no deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190, 1194 (Pa.Super. 2012).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),
appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). When asserting a claim
of ineffective assistance of counsel, the petitioner is required to make the
following showing: (1) the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his action or inaction; and, (3) but for
the errors and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
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Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).
The failure to satisfy any prong of the test for ineffectiveness will cause the
claim to fail. Gonzalez, supra.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Arthur T.
McQuillan, we conclude Appellant’s issues 1, 2(a), and 2(b) merit no relief.
(See PCRA Court Opinion, filed April 5, 2016, at 1-6) (finding: (1) Appellant
produced two copies of unsigned and unfiled plea agreement form stating,
“[Appellant] will plead guilty to…Criminal Trespass”; counsel testified
regarding his policy to notify clients of plea offers and his specific
recollection that Appellant repeatedly proclaimed his innocence and strong
interest in going to trial; Commonwealth corroborated counsel’s testimony
with letter from Appellant proclaiming his innocence and firm intent to
proceed to trial, unless charges of burglary and criminal trespass were
dropped; existence of unsigned, unfiled plea form does not prove counsel
failed to inform Appellant of plea offer; further, Appellant was not prejudiced
because counsel reasonably believed Appellant would refuse any plea offer
based on his adamant proclamations of innocence and intent to proceed to
trial; (2a-b) trial counsel questioned eyewitness Ms. Litko regarding how
she knew Appellant as “the boy across the street,” if she allegedly saw him
for first time on night of incident; counsel also extensively cross-examined
Ms. Vetter regarding alleged police intimidation and her continued profession
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of love for Appellant after incident; Appellant incurred no prejudice where
counsel thoroughly cross-examined witnesses on exact issues Appellant now
claims went unaddressed at trial). Accordingly, we affirm those issues on
the basis of the PCRA court opinion.
In issue 2(c), Appellant argues he believed the jury would acquit him
of the burglary charge based on an intoxication defense. Appellant asserts
trial counsel failed to advise Appellant that voluntary intoxication was not a
viable defense. Appellant claims he was unaware of his mistaken belief until
counsel’s closing argument. Appellant concludes counsel’s neglect
constituted ineffective assistance. We cannot agree.
Instantly, at the PCRA evidentiary hearing, Appellant expressly
narrowed his collateral challenges to sentencing issues and claims that trial
counsel was ineffective for failing to (1) inform Appellant of a plea offer from
the Commonwealth before trial; (2) confront Ms. Litko with a prior
inconsistent statement; and (3) cross-examine Ms. Vetter regarding letters
she wrote to Appellant after the incident. The court’s April 5, 2016 order
confirmed that Appellant had consented to dismissal of other claims initially
raised in his PCRA petition. Therefore, Appellant abandoned any claim
concerning trial counsel’s failure to explain to Appellant before trial that an
intoxication defense was unavailable to him.
Moreover, having abandoned this claim, Appellant offered no direct
PCRA testimony that trial counsel had failed to discuss with Appellant the
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unavailability of the defense.3 Likewise, Appellant elicited no testimony from
trial counsel on the issue. Thus, the record provides no grounds to conclude
counsel was ineffective in this respect. See Commonwealth v. Weiss, 622
Pa. 663, 81 A.3d 767 (2013) (rejecting claim that trial counsel was
ineffective for failing to request cautionary instruction, where PCRA
petitioner did not question counsel on his reasons for forgoing request).
Consequently, Appellant is not entitled to relief with respect to issue 2(c).
Based on the foregoing, the court properly denied Appellant’s PCRA petition.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2016
____________________________________________
3
During cross-examination, Appellant stated the following in response to the
question of whether he was asserting his innocence: “I was believed to be
innocent because I was under the impression I had an intoxication defense
and I had the affirmative defense to criminal trespass and I also indicated
there that any sentence I would get would have to be concurrent.” (N.T.
PCRA Hearing, 10/22/15, at 28). That statement constituted Appellant’s
sole reference to an intoxication defense and was unrelated to whether
counsel advised him of the unavailability of the defense.
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Circulated 11/14/2016 11:01 AM
IN THE COURT OF COMMON PLEAS OF CAMBRJA COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA No. 769 - 2011
('") ~ .... '
vs.
TOM HAL CORNELISON, III,
Defendant.
**************
APPEARANCES:
For the Plaintiff: SCOTT M. LILLY, ESQUIRE
Chief Deputy, Appellate Division
Office of the District Attorney
For the Defendant: ARTHUR T. MCQUILLAN, ESQUIRE
**************
OPINION
FLEMING, J., April 4, 2016. This matter comes before the Court on a Petition under
•
the Post Conviction Relief Act ["PCRA"] filed by Defendant, Tom Hal Cornelison, III, on May
18, 2015. For the following reasons, Defendant's Petition will be GRANTED IN PART,
DENIED IN PART, and DISMISSED IN PART.
BACKGROUND
On February 29, 2012, a jury found Defendant guilty of Burglary, 1 Criminal Trespass.'
and Criminal Mischief.3 VERDICTS DATED FEB. 29, 2012. Defendant filed a Motion for New
Trial on July 12, 2012, arguing the jury's verdict went against the weight of the evidence.
MOTION FOR NEW TRIAL FILED FOR RECORD ON JUL. 12, 2012, 111-5. On July 17, 2012, this
Court denied Defendant's Motion. ORDER DATED JUL.17, 2012.
1
18 PA. C.S.A. § 3502(a).
2
18 PA. C.S.A. § 3503(a)(l)(ii).
3
18 PA. C.S.A. § 3304(a)(4).
On July 19, 2012, this Court sentenced Defendant to a term of incarceration for 20 to 40
months. VIDEO SENTENCE ORDERS DATED JUN. 19, 2012.4 Defendant filed a Post-Sentence
Motion for Relief on July 30, 2012, seeking an acquittal and new trial based on insufficiency o
evidence to support the jury's verdict. POST-SENTENCE MOTION FOR RELIEF FILED FOR RECORD
ON JUL. 30, 2012, ml 3, 10-12. On November 1, 2012, this Court denied Defendant's Motions.
ORDER DATED Nov. 1, 2012.
Defendant filed his first PCRA Petition on June 7, 2013, claiming ineffective assistance
of counsel and improper obstruction by government officials. PETITION FILED FOR RECORD ON
JUN. 7, 2013, pg. 2. This Court appointed attorney Paul J. Eckenrode, granted Defendant's
Petition, and reinstated Defendant's direct appeal rights. ORDERS DATED JUL. 5, 2013; AUG. 15,
2013;SEP.5,2013.
Defendant filed Post Sentence Motions seeking acquittal, a new trial, and modification
of'sentence based on excessiveness and credit for time served. POST SENTENCE MOTIONS FILED
FOR RECORD ON SEP. 13, 2013. On November 7, 2013, this Court denied Defendant's Post
Sentence Motion for Acquittal, New Trial, and Modification of Sentence based on
excessiveness. ORDER DATED Nov. 7, 2013, 11 1-3. This Court deferred Defendant's Post
Sentence Motion for Modification of Sentence based on credit for time served until Defendant
submitted additional evidence and requested a hearing. Id. at 1 4.
Defendant filed a Notice of Appeal to the Superior Court of Pennsylvania on November
21, 2013. NOTICE OF APPEAL FILED FOR RECORD ON Nov. 21, 2013. On appeal, Defendant
claimed his convictions went against the weight of the evidence. CONCISE STATEMENT OF
MATTERS COJvll>LAINED OF ON APPEAL FILED FOR RECORD ON DEC. 13, 2013, 11 1-3. On
November 17, 2014, the Superior Court affirmed this Court's judgment of sentence. Comm. v.
Cornelison, No. 1913 WDA 2013, 2014 WL 10788841 (Pa. Super. 2014).
Defendant filed his second PCRA Petition on May 18, 2015. PETITION FILED FOR
RECORD ON MAY 18, 2015. This Court appointed Attorney Arthur T. McQuillan as counsel on
June 2, 2015; held a Pre-Trial Conference on September 17, 2015; and conducted a hearing on
4
This Court notes that the Video Sentence Orders are incorrectly dated June 19, 2012, the original sentencing date.
However, Defendant's sentencing was continued until July 19, 2012. Compare N. T. VIDEO CONFERENCE (JUN. 19,
2012)withN.T. SENTENCING (BY VIDEO CONFERENCE) (JUL. 19,2012).
2
October 22, 2015. ORDERS DATED JUN. 2, 2015; AUG. 20, 2015; SEP. 17, 2015. The PCRA
Hearing transcript was filed on November 23, 2015.
DISCUSSION
In his Petition, Defendant claims multiple errors stemming from ineffective assistance
of counsel and this Court's imposition of an excessive sentence. PETITION, pg. 2.5 Defendant
seeks a new trial, correction of sentence, and a "second chance to accept the Commonwealth's
lapsed plea offer [of criminal trespass.]" Id. at 11.
In Pennsylvania, a petitioner is eligible for PCRA relief if he proves by a preponderance
of the evidence, in pertinent part:
(1) That the petitioner has been convicted of a crime under the laws of this
Commonwealth and is at the time relief is granted . . . currently serving a
sentence of imprisonment, probation or parole for the crime[.]
(2) That the conviction or sentence resulted from one or more of the following:
* * *
(ii) 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.
* * *
(vii) The imposition of a sentence greater than the lawful
maximum.
* * *
(3) That the allegation of error has not been previously litigated or waived.
(4) That the failure to litigate the .issue prior to or during trial, during unitary
review or on direct appeal could not have been the result of any rational,
strategic or tactical decision by counsel.
42 PA. C.S.A. § 9543(a).
In his Petition, Defendant makes 50 allegations and presents seven pages of argument to
support his claim of error of the imposition of a sentence greater than the lawful maximum.
PETITION, pgs. 5-9, 14-21. At oral argument, Defendant narrowed his claims to three issues.6
5
Page numbers refer to Defendant's Petition as submitted to and scanned by the Cambria County Clerk of Courts.
6
See attached Order dated March 31, 2016, ,r 4, dismissing Defendant's meritless or conceded claims.
3
1. Ineffective Assistance of Counsel
. .
As a threshold matter, Defendant makes a layered claim of ineffective assistance o
counsel. "Where claims of trial counsel ineffectiveness have already been, or could previously
have been, litigated . . . the only way a petitioner can successfully mount a challenge to the
effectiveness of counsel is to assert a 'layered' claim of ineffectiveness, establishing first that
appellate counsel was ineffective in failing to challenge the effectiveness of trial counsel, which
requires as a threshold matter that trial counsel was ineffective in the first instance." Comm. v.
Mason, --- A.3d ---, 2015 WL 9485173, at *7-8 (Pa. Dec. 29, 2015) (quoting Comm. v.
Dennis, 950 A.2d 945, 954 (Pa. 2008) (citation omitted)). In his Petition, Defendant alleges
that his trial attorney, Ryan D. Gleason, failed to inform him and/or act on his behalf before,
during, and after trial; and his first PCRA-appointed counsel, Paul J. Eckenrode, failed to raise
Defendant's issues against Attorney Gleason on his direct appeal. PETITION, pgs. 5-9, 11.
Thus, Defendant may be entitled to PCRA relief if he can prove ineffectiveness of both
counsel, which would effectively circumvent any question of waiver. See 42 PA. C.S.A. §§
9543(a)(3), 9544.
The Supreme Court of Pennsylvania outlined the test for ineffective assistance of
counsel as follows:
A defendant must plead and prove that: (1) the claim underlying the
ineffectiveness claim has arguable merit; (2) counsel's actions lacked any
reasonable basis; and (3) counsel's actions resulted in prejudice to defendant.
Comm. v. Fletcher, 986 A.2d 759, 772 (Pa. 2009) (citations omitted).7 Failure to establish any
prong of the test defeats an ineffectiveness claim. Comm. v. Walker, 36 A.3d 1, 7 (Pa. 2011)
(citations omitted). Therefore, if a petitioner fails to meet the prejudice prong of the
ineffectiveness standard, then the claim may be dismissed on that basis alone. Comm. v.
Harris, 852 A.2d 1168, 1173 (Pa. 2004) (citations omitted). Prejudice is defined as follows:
[P]rejudice exists where there is a reasonable probability that, but for counsel's
errors, the result of the proceeding would have been different. This probability is
sufficient when it undermines confidence in the outcome of the proceeding.
Counsel is presumed to have rendered constitutionallyeffective representation.
7
The United States Supreme Court first enunciated this test in Strickland v. Washington,466 U.S. 668, 687
(1984), which the Pennsylvania Supreme Court recognized as the proper test under the Pennsylvania Constitution
in Comm. v. Pierce, 527 A.2d 973 (Pa. 1987). Thus, it is also known as the Strickland/Pierce test.
4
Comm. v. Barnett, 121 A.3d 534, 540 (Pa. Super. 2015) (quotation marks and citations
omitted). In this case, Defendant fails to prove that any of his ineffective assistance of counsel
claims resulted in actual prejudice.
For example, Defendant avers that Attorney Gleason was ineffective prior to trial by
failing to inform him of the Commonwealth's plea offer for Criminal Trespass. PETITION, pgs.
4, 14. To prove Attorney Gleason's ineffectiveness based on his alleged failure to inform
Defendant of a plea offer, Defendant has to demonstrate that "(1) an offer for a plea was made;
(2) trial counsel failed to inform him of such offer; (3) trial counsel had no reasonable basis for
failing to inform him of the plea offer; and (4) he was prejudiced thereby." Comm. v. Chazin,
873 A.2d 732, 735 (Pa. Super. 2005) (quoting Comm. v. Copeland, 554 A.2d 54, 61 (Pa. Super.
1988)).
In his Petition, Defendant provides two copies of a "Disposition under Rule 590 (B) o
the Rules of Criminal Procedure" form providing that "Defendant will plead guilty to . . .
Criminal Trespass" as proof that the Commonwealth offered a plea. PETITION, pgs. 23, 89.
Defendant cites the absence of signatures from Defendant, Attorney Gleason, and the
Commonwealth, as well as a claim that the form was not filed for record, as proof that Attorney
Gleason failed to inform him of the plea offer. N.T. PCRA HEARING (OCT. 22, 2015), pgs. 5-7,
9-10. Attorney Gleason testified, however, about his policy to notify clients of plea offers and
about his specific recollection of Defendant repeatedly proclaiming his innocence and interest
in going to trial. N.T. PCRA HEARING (OCT. 22, 2015), pgs. 32-34. The Commonwealth
corroborated Attorney Gleason's testimony by submitting a letter from Defendant proclaiming
his innocence and firm intent to proceed to trial if both charges of Burglary and Criminal
Trespass were not dropped. N.T. PCRA HEARING (OCT. 22, 2015), pgs. 26-27,
COMMONWEALTH'S Ex. No. 1.
Thus, this Court finds that the existence of the unsigned, unfiled form does not prove
that Attorney Gleason failed to inform Defendant of the plea offer. Specifically, this Court
concludes that Defendant was not prejudiced because Attorney Gleason reasonably believed
Defendant would refuse any plea offer based on Defendant's adamant proclamations o
innocence and his intentions to proceed to trial. Therefore, this claim must fail.
5
Additionally, Defendant suggests that Attorney Gleason was ineffective at trial by
failing to effectively prepare and present a defense, cross-examine Judith Litko regarding an
inconsistent statement, and cross-examine Dora Vetter regarding witness intimidation and
bribery. PETITION, pg. 4; N.T. PCRA HEARING (OCT. 22, 2015), pgs. 12-14, 21-22. Under the
PCRA, a petitioner must prove that the "failure to litigate [an] issue prior to or during trial ...
could not have been the result of any rational, strategic or tactical decision by counsel." 42 PA.
C.S.A. § 9543(a)(4).
In this case, Defendant failed to prove that Attorney Gleason acted without any rational,
strategic, or tactical decision or that any prejudice resulted from his alleged ineffectiveness at
trial. Id.; Barnett, 121 A.3d at 540. To the contrary, Attorney Gleason testified credibly and
extensively about his correspondence with Defendant; his case preparation; and his belief that
they "got along pretty well for the most part" and that Defendant was "pretty courteous and
intelligent." N.T. PCRA HEARING (OCT. 22, 2015), pgs. 33-38. Moreover, the record reflects
that Attorney Gleason cross-examined both Judith Litko and Dora Vetter on the issues
Defendant now raises. See N.T. PCRA HEARING (OCT. 22, 2015), pgs. 33-38.
Specifically, Attorney Gleason questioned Ms. Litko regarding how she knew
Defendant as ''the boy across the street" if, as she testified, she had never seen him before the
night of the alleged incident. N.T. JURY TRIAL (FEB. 29, 2012), pgs. 29-34. Attorney Gleason
also extensively cross-examined Ms. Vetter regarding alleged police intimidation to prosecute
and regarding her continued profession of love for Defendant after the incident. N.T. JURY
TRIAL (FEB. 29, 2012), pgs. 61-75, 77-78.
Overall, this Court cannot find any prejudice where trial counsel thoroughly cross-
examined the witnesses on identical issues Defendant now claims were not addressed at trial.
See e.g. Comm. v. Harris, 852 A.2d 1168, 1174-1175 (Pa. Super. 2004) (finding no prejudice or
basis for ineffectiveness from a failure to effectively cross-examine a witness where trial
counsel cross-examined the witness on similar, although not identical, issues raised on appeal).
Therefore, this Court will deny Defendant's Petition regardingthese claims.
6
2. Credit for Time Served
Defendant claims that both his trial counsel (Attorney Gleason) and his first PCRA
attorney (Paul Eckenrode) provided ineffective assistance of counsel by failing to obtain his
Somerset State Correctional Institution records to apply credit for time served to his Cambria
.
County sentence and/or raise the issue on direct appeal. PETITION, pgs. 4, 7-9, 14-16. This
Court declines to reach the merits of this issue because it lacks the authority to do so.
Specifically, the Honorable John M. Cascio, then-President Judge of the Somerset County
Court of Common Pleas, sentenced Defendant in pertinent part as follows:
You are entitled to credit for time served from March 27, 2011, through May 14,
2012, a total of 415 days.
Your having completed the entire amount of the sentence, I order that you are
discharged from supervision having completed the full maximum 30-day
sentence, and I recommend to the State Board of Probation and Parole or the
Department of Corrections. as appropriate to apply the balance of the credit in this
matter, if appropriate, to the other sentences the defendant is currently serving for
the County of Somerset.
SOMERSET COlJNTY SENTENCE ORDER DATED Nov. 8, 2012 ATNO. 357 CRIMINAL 2010, pg. 2
(COURT'S Ex. No. 1. DATED OCT. 29, 2015). The above-referenced credit applied to
Defendant's other Somerset County sentence of incarceration for 42 to 84 months, which Judge
Cascio also imposed. SENTENCE ORDER DATED Nov. 22, 2011 AT No. 358 CRIMINAL 2010,
pg. 1 (COURT'SEx, No. 1 DATED OCT. 29, 2015). The State Board of Probation and Parole or
the .Department of Corrections, not this Court, has authority to calculate and apply this credit to
Defendant's Somerset County sentence. SENTENCE ORDER DATED Nov. 8, 2012 AT No. 357
CRIMINAL 2010, pg. 2. This Court cannot order an agency of the Commonwealth to comply
with another trial court's sentence.
Moreover, the PCRA does not provide a cognizable claim for Defendant's requested
relief. See e.g. Comm. v. Heredia, 97 A.3d 392, 394-395 (Pa. Super. 2014) (explaining that a
PCRA petition is not the proper method for contesting the Department of Corrections'
calculation of sentence) ( citation omitted). For these reasons, this issue will be dismissed.
7
3. Excessive Sentence
Defendant claims this Court abused its discretion by imposing a sentence of 20 to 40
months incarceration because Cambria County Adult Probation failed to contact Defendant to
complete or review his Presentence Investigation ["PSI"] Report and because the trial court
failed to state its reasons for Defendant's sentence on the record. PETITION, pgs. 5-7.
The Pennsylvania Sentencing Code outlines sentencing protocol, in pertinent part, as
follows:
[T]he court shall follow the general principle that the sentence imposed should
call for confinement that is consistent with the protection of the public, the gravity
of the offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant. The court shall also
consider any guidelines for sentencing [under section 2155 relating to publication
of guidelines for sentencing]. In every case in which the court imposes a sentence
for a felony.. . . the court shall make as a part of the record, and disclose in open
court at the time of sentencing, a statement of the reason or reasons for the
sentence imposed.
42 PA C.S.A. § 9721(b) (emphasis added).
On February 29, 2012, at the conclusion of trial, this Court entertained Defendant's
requests to waive his physical presence at sentencing, to appear by video conference, and to
waive his right to be sentenced within 90 days to accommodate the video conference schedule.
N.T. JURY TRIAL (FEB. 29, 2012), pgs. 201-202. Defendant specifically stated, "I actually
requested that, Your Honor. I would like to get back to the state prison as soon as possible."
N.T. JURY TRIAL (FEB. 29, 2012), pg. 202. On March 2, 2012, this Court scheduled
Defendant's sentencing via video conferencing and ordered a full PSI Report by June 5, 2012.
ORDER DATED MAR. 3, 2012. At the June 19, 2012 sentencing, this Court acknowledged
reviewing a PSI Report prepared by Cambria County Adult Probation. N.T. VIDEO
CONFERENCE (JUN. 19, 2012), pg. 2. Defendant alleges that Cambria County Adult Probation
completed the Report using information gathered by Somerset County Adult Probation for
Defendant's PSI Report dated September 29, 2011 for Case No. 358-2010 in Somerset County.
PETITION, pg. 6. Ultimately, this Court continued Defendant's sentencing until July 19, 2012,
pending correction of Defendant's prior record score and resolution of issues regarding credit
for time served and merger. N.T. VIDEO CONFERENCE (JUN. 19, 2012), pg. 15.
8
At Defendant's Video Sentencing on July 19, 2012, this Court acknowledged that it
reviewed an updated PSI Report with the correct prior record score and guideline sentences.
N.T. SENTENCING (BY VIDEO CONFERENCE) (JUL. 19, 2012), pg. 3; PRE-SENTENCE
INVESTIGATION REPORT FILED FOR RECORD ON AUG. 17, 2012. This Court stated on the record
that it "had the opportunity to review a [PSI Report] that was prepared by the, Office of Adult
Probation, sentencing guideline forms, and a defendant's presentence memorandum that was
prepared by [Defendant's] attorney." N.T. SENTENCING (BY VIDEO CONFERENCE) (JUL. 19,
2012), pg. 3.
Following a thorough review of the record, this Court finds that the PSI Report was
incomplete and inadequate to apprise this Court of the circumstances surrounding Defendant's
conviction. For example, the Probation Office did not attach the referenced documents, i.e. the
victim's statement, or incorporate updated information from Defendant in the updated PSI
Report. See PRE-SENTENCE INVESTIGATION REPORT FILED FOR RECORD ON AUG. 17, 2012, pgs.
1-5. Thus, this Court could not properly sentence Defendant based on this insufficient
information.
Additionally, this Court finds that it insufficiently stated its reasons for imposition o
Defendant's sentence on the record. For example, this Court did not explain why the sentence
was consistent with the protection of the public, took into account the impact the crime had on
the victims, or considered the rehabilitative needs of defendant as required by the Sentencing
Code. See N.T. SENTENCING (BY VIDEO CONFERENCE) (JUL. 19, 2012). This Court must correct
Defendant's sentence by stating the reasons for the sentence on the record. Therefore,
Defendant is · entitled to post-conviction relief; and this matter will be scheduled for
resentencing to correct the above-referenced errors. 8
ACCORDINGLY, THE FOLLOWING ORDER IS ENTERED:
8
This Court makes no determination whether Defendant's sentence will be modified, since he was sentenced
within the standard minimum range of sentence on Count l (Burglary); received a concurrent sentence on Count 2
(Criminal Trespass); and was not sentenced on Count 3 (Criminal Mischief) pursuant to 18 Pa.C.S.A. §3502(d).
N.T. SENTENCING(BY VIDEO CONFERENCE)(JUL. 19, 2012), pgs. 3-4, 14-16.
9
IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF ;E>ENNSYLV ANIA No. 769-2011
vs.
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APPEARANCES: ;-g(/) ~
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For the Commonwealth: SCOTT M. LILLY, ESQUIRE
Chief Deputy, Appellate Division
Office of the District Attorney
For the Defendant: ARTHUR T. MCQUILLAN, ESQUIRE
**************
ORDER
AND NOW, this 4th day of April, 2016, it is hereby ORDERED and DECREED as
follows:
1. Defendant's second or subsequent Petition for Post Conviction Relief filed for record on
May 18, 2015 ["Petition"] is GRANTED IN PART, DENIED IN PART, and
DISMISSED IN PART.
2. Defendant's claims of ineffective assistance of counsel are DENIED.
3. Defendant's claims regarding credit for time served and the related issues are
DISMISSED in light of the Somerset County Sentence Order dated November 8, 2012
at No. 357 CRIMINAL 2010 and this Court's lack of authority to enforce said Order
upon an agency of the Commonwealth.
4. Defendant's claims regarding the Court's sentencing protocol are GRANTED. The
Court Administrator is DIRECTED to schedule a Resentencing Hearing within 45
days.
IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF ;PENNSYLVANIA No. 769 ~ 2011
vs.
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TOM HAL CORNELISON, III,
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APPEARANCES: i(./) .,:-
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For the Commonwealth: . -.SCOTT M. LILLY, ESQUIRE
Chief Deputy, Appellate Division
Office of the District Attorney
For the Defendant: ARTHUR T. MCQUILLAN, ESQUIRE
**************
ORDER
AND NOW, this 4th day of April, 201~, it is hereby ORDERED and DECREED as
follows:
1. Defendant's second or subsequent Petition for Post Conviction Relief filed for record on
May 18, 2015 ["Petition"] is GRANTED IN PART, DENIED IN PART, and
DISMISSED IN PART.
2. Defendant's claims of ineffective assistance of counsel are DENIED.
3. Defendant's claims regarding credit for time served and the related issues are
DISMISSED in light of the Somerset County Sentence Order dated November 8, 2012
at No. 357 CRIMINAL_ 2010 and this Court's lack of authority to enforce said Order
upon an agency of the Commonwealth.
4. Defendant's claims regarding the Court's sentencing protocol are GRANTED. The
Court Administrator is DIRECTED to schedule a Resentencing Hearing within 45
days.
5. The Cambria County Office of Adult Probation is DIRECTED to prepare an updated
and corrected Pre-Sentence Investigation Report consistent with the Court's Opinion, to
be filed no later than seven days prior to Defendant's resentencing.
6. The Cambria County Clerk of Courts is DIRECTED to forward a copy of this Opinion
and Order to the Office of Adult Probation.
7. All remaining claims presented in Defendant's Petition and/or oral argument, including
issues regarding Defendant's intoxication defense, the Commonwealth's disclosure of
crime scene photos, the Commonwealth's amendment of the Criminal Information, and
restitution are DISMISSED pursuant to Pennsylvania Rule of Criminal Procedure
908(0) (finding no material issues raised by Defendant); the Post Conviction Relief
Act, 42 PA. C.S.A. §§ 9543(a)(3), 9544 (finding waiver of these issues as previously
litigated); and/or as conceded by Defendant at oral argument or through counsel.
BY THE COURT:
~~~~x
Linda Rovder Fleming, J.
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