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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CORBIN JACOB STONE :
:
Appellant : No. 1663 WDA 2018
Appeal from the PCRA Order Entered October 16, 2018
In the Court of Common Pleas of Somerset County Criminal Division at
No(s): CP-56-CR-0000891-2015
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 4, 2019
Corbin Jacob Stone appeals pro se from the order dismissing his petition
filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Stone asserts his PCRA counsel was ineffective. We affirm.
The PCRA court summarized the underlying facts as follows:
On October 22, 2015, [Stone] and a companion were
traveling back to Somerset County on State Route 31 after
attending a concert in Morgantown, West Virginia. As operator of
the vehicle, [Stone] was driving without a license and with a blood
alcohol concentration (“BAC”) of .173% According to witness
accounts, prior to striking the victims’ vehicle, [Stone] was driving
recklessly and passing other vehicles at speeds in excess of 90
miles per hour. [Stone] struck the victims’ vehicle head-on while
driving in the opposite lane of traffic, resulting in both victims
suffering devastating, life-altering injuries. Prior to this incident,
[Stone] had an extensive prior record of D.U.I. and drug-related
offenses.
On July 14, 2016, [Stone] pled guilty to aggravated assault
by vehicle while D.U.I., 75 Pa.C.S.A. § 3735.1(a); accidents
involving personal injury while not properly licensed, 75 Pa.C.S.A.
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* Retired Senior Judge assigned to the Superior Court.
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§ 3742.1; and D.U.I., 75 Pa.C.S.A. § 3802[(c)]. [Stone] and his
[trial] counsel . . . requested that a full pre-sentence investigation
be prepared for the [c]ourt’s use in fashioning a sentence. On
October 3, 2016, [Stone] was sentenced to an aggregate 8 to 16
years in a State Correctional Facility. In sentencing [Stone]
outside of the recommended ranges of the Sentencing Guidelines,
this Court provided the following reasons for the aggravated
sentence: (1) the extremely reckless manner in which [Stone]
operated his vehicle at the time of the accident; (2) the
devastating physical and emotional injuries the victims suffered
as a result of [Stone]’s recklessness; and (3) [Stone]’s lengthy
past record of D.U.I. and drug-related offenses beginning in 2002.
PCRA Ct. Mem., 10/16/18, at 1-2 (citations to the record omitted). Stone did
not file a direct appeal.
Stone filed a timely pro se PCRA petition on November 2, 2017,1
claiming he was deprived of his right to effective assistance of counsel. Stone
asserted his trial counsel had failed to raise at sentencing that the victims’ car
had dangerous, deficient airbags that were the subject of pending federal
litigation; generally failed to investigate and present mitigation evidence at
sentencing; and failed to challenge the court’s calculation of Stone’s prior
record score on the basis that it erroneously included two non-judgment
dispositions.
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1Stone’s judgment of sentence became final 30 days after he was sentenced
and failed to file a direct appeal, i.e., on November 2, 2016. Stone thereafter
had one year, until November 2, 2017, to file a PCRA petition. See Pa.R.A.P.
903(a); 42 Pa.C.S.A. §§ 9545(b)(1), (3). Although the PCRA court entered
Stone’s petition on the docket on November 6, 2017, Stone certified in the
petition that he gave the petition to prison authorities for mailing on November
2, 2017. Under the prisoner mailbox rule, we treat this as the date of filing.
His petition was thus timely. See Commonwealth v. Wojtaszek, 951 A.2d
1169, 1170 n.3 (Pa.Super. 2008).
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Stone retained PCRA counsel, who entered his appearance. The court
held a hearing on the petition in February 2018, at which Stone’s PCRA counsel
was present, but Stone was not. At the commencement of the hearing, the
court stated, “I am trying to figure out whether this is a preliminary PCRA
hearing or a full PCRA hearing, and I’m guessing it’s preliminary by the fact
that the defendant isn’t here.” N.T., 2/24/18, at 2. Stone’s counsel responded,
“I suspect you’re correct and I’ll take that as your word.” Id. The court then
discussed with the parties the issues Stone was pursuing and his list of
intended witnesses for the evidentiary hearing. At the conclusion of the
preliminary hearing, the PCRA court ordered Stone to file an amended PCRA
petition. Stone’s PCRA counsel complied and filed an amended petition, which
again raised the issue of Stone’s trial counsel’s ineffectiveness.
The court held an evidentiary hearing in April 2018. Stone was present
at the hearing and testified. On October 16, 2018, the court dismissed the
petition, finding that Stone had not proven trial counsel’s ineffectiveness. The
court explained that it had not included the two non-judgment dispositions in
its calculation of Stone’s prior record score, and that Stone failed to prove that
the allegedly defective airbags were in the victims’ vehicle, or the effect their
presence would have had on his sentence.
Stone filed a pro se motion for reconsideration on November 13, 2018.
Stone claimed that he had been unable to contact his PCRA counsel and
assumed he was no longer represented by counsel. Stone also asserted he
had evidence to substantiate his PCRA claims, which PCRA counsel had failed
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to present at the evidentiary hearing. Stone stated he had evidence that the
victim’s vehicle had faulty airbags and had not replaced them after they were
recalled by the manufacturer. Stone also asserted, for the first time, that the
calculation of his prior record score was incorrect because it included two
convictions in Virginia that the court had improperly scored for purposes of his
prior record score. Stone argued that his PCRA counsel had been aware of
Stone’s evidence and arguments but failed to present them at the evidentiary
hearing. The PCRA court took no action on the motion.
The next day, Stone filed a timely pro se2 notice of appeal.3 The PCRA
court ordered Stone to file a Rule 1925(b) statement of errors complained of
on appeal. However, the court did not send a copy of the order to Stone’s
PCRA counsel. After receiving a docketing statement indicating that Stone was
acting pro se on appeal, this Court ordered the PCRA court to determine the
status of Stone’s representation. The PCRA court held a hearing, at which it
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2 A criminal defendant may file a pro se notice of appeal despite being
represented by counsel. See Commonwealth v. Williams, 151 A.3d 621,
624 (Pa.Super. 2016).
3 Stone had thirty days from the October 16, 2018 dismissal order in which to
file a notice of appeal. See Pa.R.A.P. 903(a). Although Stone’s notice of appeal
was docketed as received by the PCRA court on November 19, 2018, Stone
dated it November 14, 2018. We therefore deem the date of filing as
November 14, 2018, and find Stone’s notice of appeal timely under the
prisoner mailbox rule. See Commonwealth v. Patterson, 931 A.2d 710,
714 (Pa.Super. 2007). Stone’s statement in his notice of appeal that he gave
the notice of appeal to prison authorities on October 14, 2018 is an obvious
error. The court did not enter the dismissal order until October 16, and Stone
dated the notice of appeal November 14.
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colloquied Stone and determined that he waived his right to counsel
voluntarily, knowingly, and intelligently. The PCRA court then allowed Stone’s
PCRA counsel to withdraw and again ordered Stone to file a Rule 1925(b)
statement.
Stone filed a pro se Rule 1925(b) statement, in which he asserted that
PCRA counsel had been ineffective for failing to properly present Stone’s
claims and evidence of his trial counsel’s ineffectiveness at both the
preliminary hearing and the evidentiary hearing. In his appellate brief, he
raises the following issues:
I. Whether the PCRA court erred when it conducted what was
described as a preliminary PCRA hearing without [Stone] being
present?
II. Whether PCRA counsel was ineffective when he (a) failed to
make arrangements to have [Stone] present at the preliminary
PCRA hearing; and failed to make [Stone] aware of what
transpired at the hearing?
III. Whether PCRA counsel was ineffective because he (a) did not
have [Stone] verify that the attorney filing the petition is
authorized by [Stone] to file the petition; and (b) when counsel
failed to provide [Stone] with a copy of the court ordered amended
PCRA petition and the Commonwealth’s answer, which [Stone]
had to obtain from the clerk of court and [Stone] was prejudiced
because [PCRA counsel] did not argue that the PRS was incorrect?
IV. Whether PCRA counsel was ineffective for (a) not filing a brief
after the April hearing explaining that [Stone’s] possession of
heroin charge in Virginia is only an “m” in Pennsylvania; and (b)
not submitting a copy of the NHSTA recall notice recalling the
victims’ car?
Stone’s Br. at 2-3 (answers below omitted).
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“When reviewing the denial of a PCRA petition, this Court’s standard of
review is limited ‘to whether the PCRA court’s determination is supported by
evidence of record and whether it is free of legal error.’” Commonwealth v.
Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (quoting Commonwealth v. Pew,
189 A.3d 486, 488 (Pa.Super. 2018)).
Stone’s first issue, that the court erred in conducting the initial PCRA
hearing without Stone’s presence, is waived. Stone did not raise this issue in
the trial court or include it in his Rule 1925(b) statement. See Pa.R.A.P.
302(a); 1925(b)(4)(vii).
Stone’s remaining issues go to the ineffectiveness of his PCRA counsel.
The PCRA court states in its Pa.R.A.P. 1925(a) opinion that Stone never
presented the claims of PCRA counsel’s ineffectiveness prior to the appeal.
Stone argues he presented these claims to the PCRA court in his pro se motion
for reconsideration and that we therefore may review them. Stone cites in
support Commonwealth v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011).
To the extent Stone asserted PCRA counsel’s ineffectiveness in the
motion for reconsideration, that motion was inadequate to preserve any claims
because Stone was still represented by counsel and he could not engage in
hybrid representation. See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa.
2010); Commonwealth v. Ford, 44 A.3d 1190, 1199-1200 (Pa.Super. 2012)
(acknowledging that “because petitioners are not permitted to pursue hybrid
representation and counsel cannot allege his own ineffectiveness, claims of
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PCRA counsel ineffectiveness cannot ordinarily be raised in the state post-
conviction proceeding below”).
He therefore in effect raises PCRA counsel’s ineffectiveness for the first
time on appeal, which he may not do. See Commonwealth v. Smith, 121
A.3d 1049, 1054 (Pa.Super. 2015). In the context of a petitioner’s first PCRA
petition, for which a petitioner has a rule-based right to effective assistance
of counsel, a petitioner may raise claims of PCRA counsel’s ineffectiveness in
the PCRA court in response to the court’s Rule 907 notice of its intent to
dismiss the petition. Id. at 1053. If the PCRA court holds an evidentiary
hearing, and therefore does not issue a Rule 907 notice, a petitioner may raise
ineffective assistance of PCRA counsel in a subsequent PCRA petition. See
Jette, 23 A.3d at 1044 n.14; see also Commonwealth v. Henkel, 90 A.3d
16, 29 (Pa.Super. 2014) (en banc) (“issues of PCRA counsel effectiveness
must be raised in a serial PCRA petition or in response to a notice of dismissal
before the PCRA court”) (quoting Commonwealth v. Ford, 44 A.3d 1190,
1200 (Pa.Super. 2012)).
We decline, under the facts of this case and the argument before us, to
sanction a new procedure by which a petitioner can raise claims of PCRA
counsel’s ineffectiveness. Jette does not require a different result. There, the
PCRA court held an evidentiary hearing on Jette’s petition, and then dismissed
it. Jette’s PCRA counsel presented several issues on appeal, but Jette
simultaneously filed a pro se document raising PCRA counsel’s ineffectiveness.
The Pennsylvania Supreme Court held that Jette could not raise the claims of
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PCRA counsel ineffectiveness on appeal while still represented by PCRA
counsel, and could not request self-representation after his counsel had filed
an appellate on his behalf. 23 A.3d at 1044.
The Court then stated, in a footnote, “[I]f an appellant remains adamant
that the claims foregone by counsel provide the better chance for success, he
can avoid the potential loss of those claims by timely exercising his desire to
self-represent or retain private counsel prior to the appeal.” Id. at 1044 n.14.
This language indicates that a PCRA petitioner may preserve claims foregone
by his PCRA counsel, once the petitioner learned PCRA counsel did not
intend to advance them, by timely requesting the release of his appointed
counsel and presenting the additional claims himself or by private counsel.
The Court acknowledged “[w]hile difficult, the filing of a subsequent timely
PCRA petition is possible, and in situations where an exception pursuant to §
9545(b)(1)(i-iii) can be established a second petition filed beyond the one-
year time bar may be pursued.” Id. The Court in Jette nowhere suggested
that a PCRA petitioner could preserve claims of PCRA counsel’s ineffectiveness
in a pro se motion for reconsideration while still represented by counsel.
We therefore decline review of Stone’s claims of ineffectiveness of PCRA
counsel at this time. Stone may raise them in a subsequent, timely, PCRA
petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2019
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