J-S18041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAGGAI U. CHARLEMAGNE
Appellant No. 2450 EDA 2016
Appeal from the PCRA Order dated July 6, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001931-2013
BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED JUNE 29, 2017
Appellant, Haggai U. Charlemagne, appeals from the order dismissing
his first petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546, relating to his guilty plea for unlawful contact with a minor
and statutory sexual assault.1 We affirm the PCRA order and deny
Appellant’s motion to answer as moot.
On January 24, 2014, Appellant entered a guilty plea. During his
guilty plea colloquy, Appellant acknowledged that nobody was trying “to
force, coerce, or talk [him] into entering” a guilty plea “against [his] own
free will” and that nobody “promised [him] or told [him] or guaranteed what
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 6318(a)(1) and 3122.1(b), respectively.
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[his] sentence will be.” N.T., 1/24/14, at 6. Appellant also admitted that he
understood “that there is absolutely, positively no deal on sentencing.” Id.
Appellant’s sentencing hearing was on Tuesday, May 27, 2014. Plea
counsel did not appear, but another attorney from plea counsel’s firm
represented Appellant. PCRA Ct. Op., 7/6/16, at 6. At the beginning of the
hearing, sentencing counsel explained:
[Plea counsel] had a scheduling conflict that he could not get out
of in Pike County. He requested a continuance of that matter
and found out late on Friday that it was denied, being that this
matter had been continued before he did not want to ask the
Court for another continuance.
N.T., 5/27/14, at 2-3. The trial court asserted that, since it “didn’t get the
motion until late Friday, [it] wasn’t inclined to grant it at the eleventh hour.”
Id. at 3.
We reviewed the next events in this matter in a memorandum
addressing Appellant’s direct appeal from his sentence:
[T]he trial court sentenced Appellant to a 36 to 72 month term
of imprisonment for unlawful contact with a minor and a
consecutive 36 to 72 month term of imprisonment for statutory
sexual assault. The aggregate sentence was 72 to 144 months’
imprisonment. Appellant’s convictions subjected him to the
lifetime registration requirement of the Sex Offenders
Registration and Notification Act (“SORNA”), 42 Pa.C.S. §
9799.10, et seq., and to possible deportation.
On June 4, 2014, Appellant filed a motion for reconsideration of
sentence, which the trial court denied on June 5, 2014. On
June 24, 2014, Appellant filed a timely notice of appeal.
Commonwealth v. Charlemagne, No. 1840 EDA 2014, at 2-3 (Pa. Super.
Apr. 7, 2015). Appellant raised two issues in his direct appeal, both alleging
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that his sentence was excessive. This Court affirmed the judgment of
sentence on April 7, 2015. On May 11, 2015, Appellant petitioned the
Supreme Court of Pennsylvania for allowance of an appeal, which was
denied on January 14, 2016.2
Appellant’s timely pro se PCRA petition was filed on January 19, 2016.
Three days later, the PCRA court appointed the Monroe County Public
Defender’s Office to represent Appellant in this matter and granted it the
opportunity to file an amended PCRA petition. On February 19, 2016, PCRA
counsel filed a Turner/Finley3 letter, requesting to withdraw from the case.
The PCRA court held a hearing on March 16, 2016. At the hearing,
Appellant stated that he never received PCRA counsel’s Turner/Finley
letter, and PCRA counsel acknowledged that Appellant’s copy was still in the
file and that there was no record of that letter having been mailed to
Appellant. N.T., 3/16/16, at 4-5. The PCRA court ordered PCRA counsel
immediately to send a copy of the Turner/Finley letter to Appellant. The
PCRA court made no further rulings at that time. Id. at 7.
On March 20, 2016, Appellant filed a letter with the Clerk of Courts
acknowledging his receipt of the Turner/Finley letter. On March 24, 2016,
Appellant filed a “Petition for the Appeal of Turner-Finley,” asserting:
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2
Docket No. 346 MAL 2015.
3
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Appropriate amendments to [Appellant]’s post-conviction
[petition were] not made by [PCRA] Counsel. As he, i.e. Counsel
did not review the entire record of [Appellant], or Brady[4]
material. Nothing of the record reflects that counsel intelligently
and adequately made preparations for [Appellant]. Such as to
file and obtain [Deoxyribonucleic] Acid as requested by
[Appellant], if any. Or, review of Prosecution Misconduct, Abuse
of discretion, Judicial misconduct.
Pet. for the Appeal of Turner-Finley, 3/24/16, at 4 ¶ 12. Appellant
requested both that the PCRA court “set aside such Turner-Finley” and
“[a]ppoint new counsel.” Id. at ad damnum clause.
On July 6, 2016, the PCRA court dismissed the PCRA petition and
granted PCRA counsel’s request to withdraw. Appellant filed a timely pro se
appeal.
In his brief, Appellant alleges that plea counsel was ineffective because
he coerced Appellant into a guilty plea. Appellant’s Brief at 8-9.
Additionally, he claims plea counsel was ineffective by not investigating and
arguing his case. Appellant also lists numerous ineffectiveness claims in
summary fashion. He further contends the trial court failed to consider the
sentencing guidelines and that his sentence was excessive. 5 Moreover,
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4
Brady v. Maryland, 373 U.S. 83, 86-89 (1963), held that a prosecution’s
withholding of information or evidence that is favorable to a criminal
defendant’s case violates the defendant’s due-process rights and that the
prosecution has a duty to disclose such information or evidence.
5
Although Appellant failed to include a statement of questions presented in
his brief pursuant to Pa.R.A.P. 2116, we decline to find waiver. We discern
his issues from the argument section of his brief, as well as from his Rule
1925(b) Statement.
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Appellant maintains that the PCRA court should not have permitted PCRA
counsel to withdraw.6
Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the record evidence and free of legal error. Commonwealth v. Wilson,
824 A.2d 331, 333 (Pa. Super.) (en banc), appeal denied, 839 A.2d 352
(Pa. 2003); see also Commonwealth v. Andrews, 158 A.3d 1260, 1262-
63 (Pa. Super. 2017).
First, Appellant maintains that the PCRA court should not have
permitted PCRA counsel to withdraw. The only arguments in Appellant’s
brief to this Court about PCRA counsel are as follows:
By his Counsel, in Counsel Finley no merit letter Counsel state,
It is not Counsel’s duty to find an issue. However, it is Counsel
duty to find issues for her Client during the Course of the[ir]
professional relationship and under D.R.6-01(A)(3) requires that
a lawyer not “Neglect a legal matter entrusted to him.”
* * *
The Pennsylvania Supreme Court held that because The Rules of
Criminal [P]rocedure provide for the Right of Counsel on a first
P.C.R.A. petition that Right carries with it Right To Effective
Assistance of Counsel. (1) E.g., Commonwealth v. Albrecht,
554 Pa. 31[,] 720 A.2d 693 (1998) Commonwealth v. Pursell,
[5]55 Pa. 233, 724 A.2d 293 (1999); Commonwealth v.
Priovolos, 552 Pa. 364, 715 A.2d 420 (1998).
Appellant’s Brief at 6, 9 (emphasis in original).
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6
Appellant listed other issues in his Rule 1925(b) Statement, but his brief
does not include them and they therefore are waived. The Commonwealth
did not file a brief.
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In Appellant’s “Petition for the Appeal of Turner-Finley,” 3/24/16, at
4 ¶ 12, he argued that PCRA counsel failed to investigate his case by not
properly reviewing the record or requesting alleged Brady material.
However, in his brief to this Court, Appellant makes no mention of PCRA
counsel’s failure to investigate. See Appellant’s Brief at 6, 9. As Appellant
has not provided appellate advocacy on the question of PCRA counsel’s
failure to investigate, he has effectively precluded meaningful review of that
inquiry by this Court. See Commonwealth v. Rykard, 55 A.3d 1177, 1190
(Pa. Super. 2012) (defendant’s ineffective assistance of PCRA counsel claim,
alleging counsel had failed to investigate and address all of the issues
defendant presented in his pro se PCRA petition after counsel petitioned to
withdraw and filed a Turner/Finley no-merit letter, was waived due to the
defendant’s failure to present appropriate argument and citation in his
appellate brief), appeal denied, 64 A.3d 631 (Pa. 2013).
Appellant also has not clearly articulated or developed any layered
claim of ineffective assistance of counsel that would support his claim
regarding PCRA counsel’s withdrawal. See Commonwealth v. Mason, 130
A.3d 601, 619 (Pa. 2015) (holding, to prevail upon a layered ineffectiveness
claim, a PCRA petitioner must present argument on the three prongs of the
ineffective-assistance test as to each relevant layer of representation);
Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013) (stating, to prevail
on a claim of most recent counsel’s ineffectiveness for failure to raise an
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allegation of earlier counsel’s ineffectiveness, a PCRA petitioner must present
a layered claim that shows ineffectiveness at each layer of allegedly
ineffective representation), cert. denied, 135 S. Ct. 50 (2014). Thus,
Appellant failed to present a cogent argument based upon proper legal
authority as to why PCRA counsel should not have been permitted to
withdraw pursuant to his Turner/Finley letter. Hence, Appellant’s first
issue merits no relief.
For his second issue, Appellant contends that the trial court imposed
an excessive sentence. The PCRA affords relief only if a petitioner pleads
and proves —
That the conviction or sentence resulted from one or more of the
following:
(i) A violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States 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.
(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.
(iii) A plea of guilty unlawfully induced where the circumstances
make it likely that the inducement caused the petitioner to plead
guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the
petitioner's right of appeal where a meritorious appealable issue
existed and was properly preserved in the trial court.
(v) (Deleted by amendment).
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(vi) The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would
have changed the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful
maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 Pa. C.S. § 9543(a)(2). Appellant asserts that the trial court abused its
discretion “in sentencing [him] to a manifestly excessive aggregate sentence
of 6 to 12 years imprisonment, where the court based [its] sentence solely
on the seriousness of the offense and impact, but failed to consider all
relevant sentencing factors.” Appellant’s Brief at 4A.7 Because this claim
goes to the discretionary aspects of Appellant’s sentence, and not to its
illegality, it does not raise an issue as to which relief could be granted under
Section 9543(a)(2). See Commonwealth v. Wrecks, 934 A.2d 1287,
1289 (Pa. Super. 2007) (“Requests for relief with respect to the
discretionary aspects of sentence are not cognizable in PCRA proceedings.”).
Appellant also is not entitled to relief for this claim because he
previously litigated this same sentencing issue on his direct appeal, and this
Court rejected his argument and affirmed the judgment of sentence.
Charlemagne, No. 1840 EDA 2014, at 3-7. A PCRA petitioner is not eligible
for relief unless his “allegation of error has not been previously litigated or
waived.” 42 Pa.C.S. § 9543(a)(3); see id. § 9544(a)(2) (“For purposes of
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7
Appellant’s brief includes two consecutive pages numbered 4; we refer to
the first of those pages as “4A.”
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[the PCRA], an issue has been previously litigated if . . . the highest
appellate court in which the petitioner could have had review as a matter of
right has ruled on the merits of the issue”).
Appellant’s third, fifth, and sixth issues allege ineffective assistance of
plea counsel. Appellant contends that, due to such ineffective assistance,
his plea was not knowing, intelligent, and voluntary. Appellant argues that
plea counsel “was ineffective for the following reason[s:]
(1) for engaging in conduct of dishonesty
(2) for deceiving h[is] client into taking a plea
(3) for willfully and intentionally not investigating his . . .
client[’s] case
(4) for failing to appear at the [Appellant’s] sentencing hearing
to represent [his] client
(5) for allowing the prosecutor to make false statement of
events
(6) for allowing the prosecutor to withhold evidence
(7) withholding evidence from his own client
(8) for failing to argue [Appellant’s] merit[s] in this case
before deceitfully telling [Appellant] to take a plea
(9) for failing to argue why [Appellant] state[s] he did not
commit this crime
(10) for using that deportation argument to intimidat[e
Appellant] into taking a plea.
Appellant’s Brief at 8. He adds: “[Appellant] claims that counsel was
ineffective and . . . (1) that the underlying claim is of arguable merit; (2)
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that counsel’s course of conduct was without a reasonable basis designed to
effectuate his client’s interest; and (3) that [Appellant] was prejudiced by
counsel[’s] ineffectiveness.” Id. at 9.
Generally, to obtain relief on a claim of ineffective assistance of
counsel, a petitioner must plead and prove that (1) the underlying claim is of
arguable merit; (2) counsel’s performance lacked a reasonable basis; and
(3) the ineffectiveness of counsel caused him prejudice. Commonwealth v.
Pierce, 527 A.2d 973, 975 (Pa. 1987). “To demonstrate prejudice, the
petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012)
(quotation marks and citation omitted). If a petitioner fails to prove by a
preponderance of the evidence any of the Pierce prongs, 527 A.2d at 975,
the court need not address the remaining prongs. Commonwealth v.
Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009), appeal denied, 990
A.2d 727 (Pa. 2010). The right to effective assistance of counsel extends to
the plea process. Commonwealth v. Wah, 42 A.3d 335, 338-39 (Pa.
Super. 2012).
In the context of a plea, a claim of ineffectiveness may
provide relief only if the alleged ineffectiveness caused an
involuntary or unknowing plea. See Commonwealth v.
Mendoza, 730 A.2d 503, 505 (Pa. Super. 1999). “[A]
defendant is bound by the statements which he makes during his
plea colloquy.” Commonwealth v. Barnes, 455 Pa. Super.
267, 687 A.2d 1163, 1167 (1996) (citations omitted). As such,
a defendant may not assert grounds for withdrawing the plea
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that contradict statements made when he entered the plea. Id.
(citation omitted).
Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. Super. 2017).
During Appellant’s guilty plea colloquy, Appellant acknowledged that
he voluntarily entered into the plea and was not “forced” or “coerced.” N.T.,
1/29/14, at 6. As Appellant is bound by the statements that he made during
his plea colloquy, he cannot now claim that plea counsel deceived him or
induced him into entering a guilty plea. See Orlando, 156 A.3d at 1281.
Moreover, even if Appellant could “assert grounds for withdrawing the plea
that contradict statements made when he entered the plea,” id., he has
failed to plead and prove any evidence of this alleged coercion by plea
counsel. Appellant further insists that plea counsel did not effectively
investigate and argue his case. However, as the PCRA court observed, once
Appellant agreed to enter a guilty plea, plea counsel would have no reason
to investigate further or to make any argument. See PCRA Ct. Op., 7/6/16,
at 6. We agree with the court’s observation.
As for Appellant’s statement that plea counsel was ineffective for
failing to appear at Appellant’s sentencing hearing, the record reveals that
plea counsel’s absence was beyond his control and that Appellant was
represented at the sentencing hearing by another attorney from plea
counsel’s firm. N.T., 5/27/14, at 2-3; PCRA Ct. Op., 7/6/16, at 6. The trial
court was unwilling to grant a continuance. N.T., 5/27/14, at 3. More
critically, Appellant does not articulate any prejudice that supposedly
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resulted from the substitution of another lawyer at his sentencing.
Accordingly, Appellant has not pleaded and proved a claim of ineffectiveness
with respect to the identity of counsel at his sentencing hearing.
Appellant’s remaining bases for his ineffective assistance of counsel
claim – that plea counsel “engag[ed] in conduct of dishonesty,” “allow[ed]
the prosecutor to make false statements” and “to withhold evidence,” and
“with[eld] evidence from” Appellant – are undeveloped. Appellant’s Brief at
8. Appellant does not plead a single specific perfidious act or statement by
plea counsel, nor identify any particular “false statement” by the
Commonwealth. See id. He also fails to identify any evidence that the
Commonwealth or plea counsel allegedly withheld. See id.8 Since these
claims are not explained, developed, or supported by the record, Appellant
has not established entitlement to relief. See Commonwealth v. Koehler,
36 A.3d 121, 158 (Pa. 2012) (denying relief based on the lack of arguable
merit due to appellant’s failure to identify portions of the record).
Consequently, we concur with the PCRA court that none of these claims are
of arguable merit. PCRA Ct. Op., 7/6/16, at 6. As these claims fail on the
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8
“To establish a Brady violation, [the defendant] must demonstrate [that]:
(1) the prosecution concealed evidence; (2) the evidence was either
exculpatory or impeachment evidence favorable to him; and (3) he was
prejudiced.” Commonwealth v. Treiber, 121 A.3d 435, 460–61 (Pa.
2015). As Appellant has failed to establish that any exculpatory evidence
even existed, let alone that the prosecution concealed it, he has failed to
establish a Brady violation. See Treiber, 121 A.3d at 460; see also
Appellant’s 1925(b) Statement at ¶ 4.
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first Pierce prong, we need not address the remaining Pierce prongs, 527
A.2d at 975. See also Fitzgerald, 979 A.2d at 911.
Having discerned no abuse of discretion or error of law, we
affirm the order below. See Wilson, 824 A.2d at 333; Andrews, 158 A.3d
at 1262-63. We thereby also deny Appellant’s motion to answer as moot.
Order affirmed. Appellant’s motion to answer denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2017
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