J-S07014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
STEPHEN EUGENE JILES
Appellant No. 1063 MDA 2016
Appeal from the PCRA Order December 10, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s):
CP-67-CR-0002718-2009
CP-67-CR-0002719-2009
CP-67-CR-0002745-2010
CP-67-CR-0003039-2009
BEFORE: BOWES, LAZARUS, AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2017
Stephen Eugene Jiles appeals from the order denying his PCRA
petition. Appellant’s case returns to us after we remanded this matter with
directions to counsel to file a Turner/Finley1 brief addressing the issues
raised by Appellant in his original pro se PCRA petition. Counsel has
complied with our order. Following review, we grant counsel’s application to
withdraw and affirm.
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1
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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We reiterate the relevant factual and procedural history as previously
set forth by this Court:
Following his convictions for numerous counts of robbery
and other related offenses at the above docket numbers,
Appellant was sentenced to an aggregate term of nine to twenty-
one years’ imprisonment. In a consolidated appeal, this Court
affirmed Appellant’s judgment of sentence on April 4, 2012.
Commonwealth v. Jiles, 48 A.3d 469 (Pa.Super. 2012)
(unpublished memorandum).
On January 4, 2013, Appellant pro se timely filed a petition
pursuant to the [PCRA], raising, inter alia, a claim that counsel
was ineffective for failing to file a petition for allowance of appeal
to the Supreme Court of Pennsylvania from this Court’s
affirmance of his judgment of sentence. The PCRA court
appointed John Hamme, Esquire, as counsel. On April 24, 2013,
following a hearing, the PCRA court granted Appellant’s petition
with respect to that claim and reinstated Appellant’s right to file
a petition for allowance of appeal nunc pro tunc. The PCRA court
denied the petition in all other respects.
On May 16, 2013, Appellant filed a counseled notice of
appeal to this Court from the PCRA court’s April 24, 2013 order.
On May 23, 2013, Appellant filed a counseled petition for
allowance of appeal to our Supreme Court, which was denied on
October 2, 2013. Commonwealth v. Jiles, 76 A.3d 539 (Pa.
2013). On March 5, 2014, Appellant pro se filed another PCRA
petition. Appellant also requested the appointment of counsel.
On April 15, 2014, this Court affirmed the PCRA court’s April 24,
2013 order. Commonwealth v. Jiles, 102 A.3d 533 (Pa.Super.
2014). On May 1, 2014, the PCRA court appointed William Graff,
Esquire, to represent Appellant for purposes of his March 5, 2014
PCRA petition.
On June 26, 2014, the PCRA court held a hearing on
Appellant’s petition. At the hearing, Attorney Graff presented
two issues to the PCRA court, but rather than advocate for his
client, Attorney Graff essentially informed the PCRA court that
the issues did not warrant relief. Following the hearing, the
PCRA court dismissed Appellant’s PCRA petition.
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Notwithstanding the procedural irregularities already
outlined above, at this point, the procedural posture of this case
begins to fall into complete disarray. A review of the record
clearly reveals that Appellant sought to appeal the dismissal of
his March 5, 2014 petition, but the clerk of courts and the PCRA
court failed to handle appropriately his pro se filings evidencing
that fact, and his appointed counsel failed to act altogether. As
a result, Appellant was denied his right to appeal the PCRA
court’s June 26, 2014 order dismissing his petition.
Appellant then filed his “Motion to Re-Instate Appeal Rights
or, in the Alternative, to Have Docketed Notice of Appeal
Processed by the Clerk of Courts” on August 20, 2014. On
August 28, 2014, the PCRA court denied Appellant’s motion.
Commonwealth v. Jiles, 131 A.3d 94 (Pa.Super. 2015) (unpublished
memorandum at 1-2).
In the following appeal, Appellant argued that the PCRA court erred in
failing to re-instate his appellate rights where Appellant evinced a clear
intent to appeal the PCRA court’s decision, and appointed counsel failed to
take the appropriate steps to do so. In addition, Appellant reiterated the
four issues he presented in his March 5, 2014 PCRA petition. We found that
Attorney Graff’s numerous errors effectively denied Appellant his right to
representation by counsel. Thus, we remanded for the appointment of new
counsel, and the filing of an amended PCRA petition or Turner/Finley no-
merit letter. As such, we did not reach the merits of the four issues
Appellant raised in his PCRA petition.
On remand, the PCRA court appointed George Margetas, Esquire, to
represent Appellant during his PCRA proceedings. Attorney Margetas did not
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file an amended PCRA petition. The PCRA court held a hearing on December
10, 2015, wherein counsel argued the issues raised in Appellant’s pro se
PCRA petition. The PCRA court denied relief, and Appellant indicated, on the
record, that he desired appellate review. Attorney Margetas did not file a
notice of appeal, nor did he seek to withdraw as counsel. Subsequently,
Appellant again petitioned the court for reinstatement of his appellate rights.
The PCRA court appointed Heather A. Reiner, Esquire, and, after a hearing
on May 31, 2016, the court re-instated Appellant’s appeal rights.
Appellant filed the present timely, counseled notice of appeal and
complied with the court’s order to file a Rule 1925(b) statement of errors
complained of on appeal. On November 14, 2016, counsel filed with this
Court a Turner/Finley letter and an application to withdraw as counsel.
Thereafter, Appellant filed an application for relief requesting that the Court
permit him to file an amended Rule 1925(b) statement in order to include
the four issues he raised in his March 5, 2014 PCRA petition. We denied this
relief, but permitted Appellant an extension of time to file a response to
counsel’s no-merit letter. Appellant did so, contending that appellate
counsel had filed a Rule 1925(b) statement without his input, and that
statement failed to include the issues for which he seeks redress on appeal.
Subsequently, we reviewed counsel’s Turner/Finley letter and brief,
and found that she had not meet the technical requirements enunciated in
Turner/Finley in order to be permitted to withdraw. Specifically, we found
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that counsel had failed to address the issues presented by Appellant in his
original pro se PCRA petition, and discerned no justification for failing to do
so. Thus, we remanded the matter with instructions to counsel to refile her
Turner/Finley brief addressing those concerns, or in the alternative, to file
an advocate’s brief. Counsel has presented an amended Turner/Finley
brief. This matter is now ready for our review.
PCRA counsel’s Turner/Finley brief directs this Court’s attention to
four issues of possible merit:
1. Whether trial counsel, Kevin Hoffman, rendered ineffective
assistance by failing to move for dismissal of case No. CP-67-CR-
00[2]745-2010 based on a denial of due process and
prosecutorial misconduct?
2. Whether trial counsel, Kevin Hoffman, rendered ineffective
assistance for offering erroneous advice with regard to accepting
or rejecting a plea offered by the Commonwealth that was
significantly less onerous than the prison time imposed following
trial?
3. Whether Appellant was subjected to structural error when a
Judge who decided pre-trial motions was involved in an intimate
relationship with the assistant district attorney, who prepared
and submitted said motions, resulting in a denial of due process?
4. Whether trial and direct appeal counsel, Kevin Hoffman, was
ineffective for failing to file an application for relief in appellate
court when he discovered that the pre-trial motions Judge was
intimately involved with the assistance district attorney who
prepared and submitted several pre-trial motions decided by that
Judge?
Turner/Finley brief, 1/23/17, at 6.
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As a preliminary matter, we must address whether counsel has met
the requirements of Turner/Finley. The Turner/Finley decisions provide
the manner for post-conviction counsel to withdraw from representation.
The holdings of those cases mandate an independent review of the record by
competent counsel before a PCRA court or appellate court can authorize an
attorney’s withdrawal. Counsel must then file a “no-merit” letter detailing
the nature and extent of her review and list each issue the petitioner wishes
to have examined, explaining why those issues are meritless.
Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa.Super. 2014).
Counsel is required to contemporaneously serve upon her client her no-merit
letter and application to withdraw along with a statement that, if the court
granted counsel’s withdrawal, the client may proceed pro se or with a
privately retained attorney. Id. at 774. This Court must then conduct its
own independent evaluation of the record and agree with counsel that the
petition is meritless. Id.
Here, we find that counsel has complied with the requirements of
Turner/Finley. Counsel detailed her review of the record and concluded
that Appellant’s claims are meritless. She notified Appellant, and furnished
him with a copy of her no-merit letter, advising him of his right to proceed
pro se or to retain private counsel. Thus, we turn to the merits of the
instant appeal.
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We review an order denying a PCRA petition to determine whether the
PCRA court’s ruling is supported by the evidence of record and is free from
legal error. Commonwealth v. Watley, 153 A.3d 1034, 1039 (Pa.Super.
2016). We will not disturb the PCRA court’s findings unless there is no
support for the findings in the certified record. Id. at 1039-1040.
Three of Appellant’s issues involve allegations that trial counsel,
Attorney Hoffman, rendered ineffective assistance of counsel. To establish
ineffective assistance of counsel, a PCRA petitioner must show that the
underlying claim has arguable merit, counsel’s actions lacked any reasonable
basis, and counsel’s actions prejudiced the petitioner. Id. at 1040. We
commence our analysis under the presumption that counsel was effective.
Id. The failure to satisfy any prong of the test will cause the claim to fail.
Id.
Appellant contends first that trial counsel was ineffective for failing to
move for the dismissal of the offenses charged at action number 2745-2010,
which he insists were improperly brought by the Commonwealth. The
following procedural history is relevant to Appellant’s argument. The
Commonwealth brought charges against Appellant for crimes he committed
on March 26, 2009. Those charges included one count of robbery graded as
a second-degree felony pursuant to 18 Pa.C.S. § 3701(a)(1)(iv), and one
count of robbery graded as a third-degree felony pursuant to 18 Pa.C.S. §
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3701(a)(1)(v).2 After a preliminary hearing, the magisterial district court
dismissed the second-degree felony robbery charge.
Subsequently, the Commonwealth filed bills of information erroneously
charging Appellant with both original offenses. Appellant filed an omnibus
pre-trial motion which, in part, challenged the inclusion of the second-degree
robbery offense in his charging documents. The court granted Appellant’s
motion in part, and dismissed the case in its entirety. The Commonwealth
refiled the charges, and Appellant was arraigned on April 4, 2010. A
preliminary hearing was held on April 28, 2010, after which all charges,
including both counts of robbery, were held over for trial. The court of
common pleas docketed the new matter at action number 2745-2010.
Following trial, Appellant was found not guilty of second-degree robbery, and
guilty on all other counts.
Essentially, Appellant contends that his due process rights were
violated since he was not re-arrested for the revived charges at 2745-2010,
cannot remember a preliminary hearing being conducted following the
refiling of these charges, and the Commonwealth otherwise ignored the rules
of criminal procedure in bringing this case before the court. Hence, he
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2
The Crimes Code defines these offenses as robbery where, “in the course
of committing a theft, he: . . . (iv) inflicts bodily injury upon another or
threatens another with or intentionally puts him in fear of immediate bodily
injury; . . . (v) physically takes or removes property from the person of
another by force however slight[.]” 18 Pa.C.S. § 3701(a)(1)(iv) and (v).
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concludes that trial counsel was ineffective for failing to move to have the
case docketed at action number 2745-2010 dismissed as a result of the
Commonwealth’s procedural missteps.
Instantly, the record reflects that the magisterial court held a
preliminary hearing on April 28, 2010, wherein Appellant’s charges were
held for court, including one count of robbery graded as a second-degree
felony. Appellant’s failure to recall this hearing is no defense, nor does it
raise the specter of prosecutorial misconduct. The refiling of these charges
was authorized by the district attorney’s office, accompanied by the required
documentation, and occurred while Appellant was confined awaiting trial in
other cases. The record reveals no prosecutorial misconduct in this regard.
See Commonwealth v. Pettersen, 49 A.3d 903, 910 (Pa.Super. 2012)
(finding Commonwealth may refile charges prior to expiration of statute of
limitations if the refiling is not intended to harass defendant or would not
prejudice defendant).
Nevertheless, assuming, arguendo, that the Commonwealth erred in
refiling the charges at action number 2745-2010, we find that Appellant is
not entitled to relief. Appellant concedes that he was acquitted of second-
degree robbery following his trial. We have long held that in order to
establish prejudice, the petitioner “must show that there is a reasonable
probability that the outcome of the proceedings would have been different
but for counsel’s action or inaction.” Watley, supra at 1040 (citation
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omitted). Ultimately, the jury vindicated the first magisterial court’s
dismissal of the second-degree robbery charge by acquitting him of that
offense. On appeal, we affirmed Appellant’s judgment of sentence in all
respects. See Commonwealth v. Jiles, 48 A.3d 469 (Pa.Super. 2012)
(unpublished memorandum). Thus, despite trial counsel’s alleged error,
Appellant has not established that the outcome of the proceedings would
have been different, and therefore, Appellant is not entitled to relief.
Appellant next asserts that trial counsel was ineffective for offering
him flawed advice regarding a global plea offer of seven to fourteen years
incarceration presented by the prosecution prior to trial. Appellant
maintains that counsel exaggerated his chances of acquittal and failed to
inform him of the maximum sentence he faced for each case. In reliance on
counsel’s advice, Appellant proceeded to trial wherein he was sentenced to a
harsher punishment than offered in the plea deal. Appellant insists that, if
counsel had presented an accurate account of the likelihood of success, then
he would have accepted the plea offer. We find this issue lacks merit.
During a hearing held on September 13, 2011, the trial court reviewed
the contents of Appellant’s plea offer, and confirmed his desire to go to trial.
The court questioned Appellant’s motive for rejecting the plea deal as
follows:
The Court: What do you need to think about, [Appellant]? You
either get 7 to 14 concurrent or you go to trial and if you lose
one of them, you’re going to get more.
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Appellant: I understand.
....
The Court: They’ve offered you concurrent time, which means
that the sentences you’ve received on the pending cases would
all run with sentences you’ve received. By going to trial, if found
guilty, any sentence you would receive, they’re going to request
that be run consecutive to the sentences you’ve already
received.
Appellant: Yes.
The Court: Okay. [Appellant], you can lead a horse to water,
but you can’t make him drink. I can’t imagine anyone under the
circumstances that was acting rationally that would make the
same decision that you’ve just made.
Appellant: Well, I --
The Court: I don’t need to know why, I’m just - - I’m a little bit
confounded. It’s entirely up to you, but I want you to think
about what you’re going to be dreaming about seven years from
now when you think, you know, I may have looked tough in
court when I rejected the offer, but, geez, I really wish I had
taken that offer.
Appellant: I don’t have nothing to be tough about, Your Honor,
you know what I mean? They didn’t go through the proper
procedures, I brought it to you -- . . . Every hearing you shot me
down. I got the law on my side, but you – you – I come to you,
then they have a sheriff’s warrant, you don’t suppress that. The
warrant’s not time stamped, that didn’t happen until after they
went into my house, but you want transcripts stating that I want
these to be time stamped, they need a search warrant, but you
do nothing about it[.]
....
The Court: . . . So the reason why I said what I said is I don’t
want you laying in bed, you know, seven years from now and
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saying, you know what, I don’t know what I was trying to prove,
but I really wish I was out right now.
Appellant: Or in a few months or whatever I do get turned over
and I am out by now. There’s still that chance that I took into
consideration, you know what I mean?
N.T. Hearing, 8/13/20, at 2, 4-7, 9.
During the PCRA hearing relevant to this appeal, Appellant’s trial
counsel, Attorney Hoffman, testifying as a witness, further explained
Appellant’s rationale for rejecting the plea offer:
Prosecutor: And did you discuss [the plea] offer with
[Appellant]?
Attorney Hoffman: We did.
Prosecutor: And what was your position to him regarding
whether he should take the offer or not?
Attorney Hoffman: I just told him what the offer was. I didn’t
tell him whether or not he should take it. I did explain to him
that this was the offer, that we had a lot of other trials to go
because I believe at that point we had only had one trial and
there were a lot of outstanding suppression issues that had been
decided against us that he didn’t want to lose on appeal if we
pled guilty.
Prosecutor: And did you advise him that if he didn’t take the
offer, he could be facing additional time?
Attorney Hoffman: Yeah. We’ve had that conversation a lot
about the fact of the matter is a lot of charges we don’t know
what the judge was going to do at sentencing.
Prosecutor: Did you recommend going to trial over taking the
offer?
Attorney Hoffman: No. I always left that decision in his hands.
I did explain to him, though, that if we did enter a plea, he
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wouldn’t be able to fight the suppression issues which he had –
which he felt strongly about fighting in the future.
N.T. PCRA Hearing, 12/10/15, at 17-18. On cross-examination, trial counsel
reiterated that Appellant “felt very strongly” about his desire to appeal the
suppression motions, and that, as a result, Appellant “wanted to go to trial.”
Id. at 19-20. Nonetheless, he conceded that he did not discuss the
maximum and minimum sentences Appellant faced for each charge. Id. at
20.
Herein, the PCRA court credited Attorney Hoffman’s testimony that
Appellant’s motivation for rejecting the plea deal was fueled by his desire to
overturn certain adverse rulings. The record supports this finding. The
record does not support Appellant’s contention that trial counsel led
Appellant to believe he would likely receive an acquittal if he went to trial.
Indeed, Attorney Hoffman asserted, and the record reflects, that Appellant
made the decision to reject the plea offer based on his belief that his
suppression contention would be validated on appeal, and that he would be
released from prison shortly thereafter. Appellant’s comments during the
hearing also suggest a strong desire to seek absolution upon appeal
regardless of the sentences he faced. Appellant has not shown, and the
record does not reflect, that, but for trial counsel’s advice, Appellant would
have accepted the plea offer. Hence, this issue is without merit.
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As Appellant’s third and fourth issues are related, we consider them
together. Appellant insists that he was subject to “structural error” because
a prosecutor who litigated some of the motions during his trial was engaged
in a romantic relationship with the presiding judge. Turner/Finley brief,
1/23/17, at 12. In addition, he claims that trial counsel rendered ineffective
assistance for failing to file an application for relief after he learned of the
supposed affiliation. Further, Appellant counters the Commonwealth’s claim
that this matter was previously litigated by contending that our decision
related to similar claims in a prior proceeding pertained only to his case at
action number 5684-2009, which is not implicated here. See
Commonwealth v. Jiles, 102 A.3d 533 (Pa.Super. 2014) (unpublished
memorandum).
We observe that Appellant filed a pro se PCRA petition on January 4,
2013, at action numbers 2718-2009, 2719-2009, 2745-2010, 3039-2009,
and 5684-2009. In that petition, under a heading related to action number
5684-2009, Appellant raised the precise issues implicated here, that is,
structural error caused by the presiding judge’s alleged relationship with a
prosecuting attorney, and Attorney Hoffman’s ineffective assistance of
counsel arising therefrom. Id. at *2.
As to the first issue, we found that Appellant failed to present any
evidence of a relationship between the attorney and the presiding judge or
that the alleged relationship occurred during Appellant’s criminal trial. Id. at
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*3. In regards to Appellant’s ineffectiveness claim, we found that, due to
Appellant’s lack of evidence pertaining to the improper relationship, this
claim also lacked arguable merit. Id. Thus, we found that the PCRA court
did not err in denying Appellant’s petition. We did not, as Appellant
apparently suggests, render this opinion solely for his action arising at
number 5684-2009. Hence, Appellant’s claims were previously litigated and
cannot form the basis of PCRA relief.3 42 Pa.C.S. § 9543(a)(3) (“To be
eligible for relief under this subchapter, the petitioner must plead and prove
by a preponderance of the evidence all of the following . . . [t]hat the
allegation of error has not been previously litigated[.]”); 42 Pa.C.S. §
9544(a)(2) (“For purposes of this subchapter, 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[.]”).
Thus, Appellant’s claims fail.
Our independent review of the record confirms that Appellant’s
averments in his PCRA petition cannot afford him relief. We concur with
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3
We note that, even if Appellant were correct in his assertion that this
matter was not previously litigated as to action numbers 2718-2009, 2719-
2009, 2745-2010, and 3039-2009, then these issues would be waived since
he could have raised them concomitantly with his challenge at action
number 5684-2009 in his first PCRA petition. Commonwealth v. Oliver,
128 A.3d 1275 (Pa.Super. 2015) (stating, “An issue is waived if [a
petitioner] could have raised it but failed to do so before trial, at trial, . . . on
appeal or in a prior state [PCRA] proceeding.”); 42 Pa.C.S. § 9543(a)(3).
Thus, he would still not be entitled to relief.
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counsel’s assessment that there is no merit to his request for PCRA relief.
Hence, we discern no error in the PCRA court’s decision to deny Appellant’s
PCRA petition.
Petition of Heather A. Reiner, Esquire, to withdraw granted. Order
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2017
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