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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EDWARD NELSON PETERS :
:
Appellant : No. 674 MDA 2020
Appeal from the PCRA Order Entered April 16, 2020,
in the Court of Common Pleas of Dauphin County,
Criminal Division at No(s): CP-22-CR-0003893-2008.
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED: OCTOBER 7, 2020
Edward Nelson Peters appeals from the order dismissing his petition filed
pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-46. We
affirm.
The pertinent facts and procedural history are as follows: On October
13, 2009, Peters pled guilty to multiple sex offenses. Thereafter, the trial
court sentenced him to an aggregate term of 3½ - 10 years imprisonment,
followed by a seven-year probationary term. Peters did not file a direct
appeal. Peters unsuccessfully litigated a PCRA petition in which he claimed
that the ineffective assistance of counsel caused him to enter an invalid plea.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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See Commonwealth v. Peters, 64 A.3d 9 (Pa. Super. 2012) (unpublished
memorandum).
While still serving his probation sentence, the Dauphin County Adult
Probation Department filed a notice of violation, and Peters waived his
Gagnon I hearing.1 On October 29, 2019, the trial court held a Gagnon II
hearing. At the conclusion of the hearing, the trial court revoked Peters’ state
probation and sentenced him to 4 to 10 years in prison and a consecutive
seven-year probationary term. Peters did not file a direct appeal.
On January 16, 2020, Peters filed a “Petition for Writ of Habeas Corpus
to Show Cause” which the PCRA court correctly treated as a PCRA petition.
See Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super. 2013) (explaining
that the PCRA is intended to the sole means of obtaining post-conviction relief
and the statute has subsumed the writ of habeas corpus). The PCRA court
appointed counsel, and, on February 24, 2020, PCRA counsel filed a “no-merit”
letter and motion to withdraw pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc).
On February 27, 2020, the PCRA court issued a Pa.R.Crim.P. 907 notice
of its intent to dismiss Peters’ PCRA petition without a hearing. The court also
granted PCRA counsel’s motion to withdraw. Peters filed a timely pro se
____________________________________________
1 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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response in which he raised claims of trial counsel’s ineffectiveness for the
first time. By order of court entered March 18, 2020, the PCRA court denied
Peters’ PCRA petition. On April 8, 2020, Peters filed an amended PCRA petition
in which he again raised his ineffectiveness claims. After the Clerk of Courts
notified the PCRA court that mail addressed to Peters had been returned, out
of caution, the PCRA court entered another final order dismissing Peters’ PCRA
petition on April 16, 2020. See PCRA Court Opinion, 5/22/20, at 2 n.2. This
timely appeal followed. Both Peters and the PCRA court complied with
Pa.R.A.P. 1925.
Peters now raises the following issues:
[1.] Did [trial] counsel present at [Peters’] revocation
hearing, fail to address the issue of the Dauphin
County Probation and Parole, entering Perry
County, causing [a] jurisdiction violation [?]
[2.] Did [trial] counsel present at [Peters’] revocation
hearing, fail to address the issue of no probable
cause existed to arrest [Peters?]
[3.] Did [trial] counsel at [Peters’] revocation hearing
fail to address the unlawful entry into a home, that
was not listed as a home of [Peters?]
(4.] Was previous counsel ineffective, creating a
layered claim of ineffectiveness[?]
Peters’ Brief at 2.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
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in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
To be eligible for post-conviction relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from one or more of the enumerated errors or defects in 42 Pa.C.S.A.
section 9543(a)(2), and that the issues he raises have not been previously
litigated or waived. Commonwealth v. Crispell, 193 A.3d 919, 927-28 (Pa.
2018). 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,” or if the issue “has been raised and decided in a
proceeding collaterally attacking the conviction or sentence.” 42 Pa.C.S.A. §
9544(a)(2), (3). An issue will be deemed waived under the PCRA “if the
petitioner could have raised it but failed to do so before trial, at trial, during
unitary review, on appeal, or in a prior state post[-]conviction proceeding.”
42 Pa.C.S.A. § 9544(b).
Here, the PCRA court found the first three issues raised by Peters to be
waived because he did not raise any objection at the Gagnon II hearing, and
he did not challenge trial counsel’s effectiveness in his pro se PCRA petition.
See PCRA Court Opinion, 5/22/20 at 3. Our review of the record supports
these conclusions.
Moreover, while Peters raised claims of trial counsel’s ineffectiveness in
his Rule 907 response, in order to preserve these claims he needed to request
leave to file an amended petition. See Commonwealth v. Rigg, 84 A.3d
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1080, 1084-85 (citation omitted) (reiterating that a PCRA petitioner “must
request leave to amend his petition in his Rule 907 response to raise new trial
counsel ineffectiveness claims;” when he fails to do so “after [PCRA] counsel
has filed a Turner/Finley no-merit letter, the PCRA court is under no
obligation to address new issues”). Although Peters filed an amended petition
in which he reiterated his claims of trial counsel’s ineffectiveness, this
amendment was a nullity. See Rigg, supra; Commonwealth v. Porter, 35
A.3d 4, 12 (Pa. 2012) (explaining Pa.R.Crim.P. 905 governing amending PCRA
petitions is not self-authorizing; “the Rule explicitly states that amendment is
permitted only by direction or leave of the PCRA court”).
In his fourth issue, Peters raises a claim of layered ineffectiveness.
However, Peters inappropriately raises this claim for the first time on appeal.
See generally, Pa.R.A.P. 302(a). Thus, it is waived, and entitles him to no
relief.
In sum, because our review of the record supports the PCRA court’s
conclusion that Peters failed to preserve his claims regarding errors from the
revocation hearing, we affirm its order denying him post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/07/2020
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