J-S50037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEROY CALBERT,
Appellant No. 395 EDA 2017
Appeal from the PCRA Order entered January 9, 2017,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0002065-2013.
BEFORE: PANELLA, MOULTON, and RANSOM, JJ.
MEMORANDUM BY RANSOM, J.: FILED OCTOBER 02, 2017
Appellant, Leroy Calbert, appeals pro se from the January 9, 2017
order denying his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate and remand with instructions.
The pertinent facts and procedural history, as gleaned from our review
of the certified record, are as follows. On November 23, 2013, Appellant
entered a counseled, negotiated guilty plea to various drug charges at two
separate criminal dockets, and he was sentenced that same day to an
aggregate term of ten to twenty years of imprisonment. On December 5,
2013, Appellant pro se filed a notice of appeal, along with a pro se request
for leave to withdraw his guilty plea, as well as a motion to withdraw his
guilty plea. The trial court appointed counsel to represent Appellant but did
not address the withdrawal motion given Appellant’s filing of an appeal.
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On appeal, Appellant claimed that his plea was unknowing because he
did not know the sentences at each docket were to be imposed
consecutively. In an unpublished memorandum filed on November 25,
2014, we found this claim waived for failure to preserve the challenge to the
guilty plea “prior to sentencing, at sentencing, or in a timely post-sentence
motion.” Commonwealth v. Calbert, 113 A.3d 358, *8 (Pa. Super. 2014),
appeal denied, 117 A.3d 295 (Pa. 2015). Thus, this Court affirmed
Appellant’s judgment of sentence.1
On February 3, 2016, Appellant timely and pro se filed a PCRA
petition. The PCRA court appointed counsel, who was later permitted to
withdraw, and the court appointed new counsel. Thereafter, Appellant filed
a motion to proceed pro se. Following a Grazier2 hearing, that PCRA court
granted Appellant’s request. The Commonwealth filed an answer to
Appellant’s pro se petition. On October 19, 2016, the PCRA court issued
Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s PCRA petition
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1
Before doing so we noted that, although Appellant was represented by new
counsel on appeal, the record did not contain any order granting Appellant’s
original trial counsel leave to withdraw. See Calbert, at *6-7 n.1. In fact,
we stated that “Appellant does not explain what occurred to his original trial
counsel following the plea, or why [he] acted in a pro se capacity when he
filed” his notice of appeal and other motions. Id. In addition, we noted that
nothing in the record indicated that Appellant’s pro se filings were forwarded
to trial counsel, who remained counsel of record, pursuant to Pa.R.Crim.P.
5769(A)(4).
2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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without a hearing. Appellant filed a response. By order entered January 9,
2017, the PCRA court dismissed Appellant’s petition. This pro se appeal
followed. Both Appellant and the PCRA court have complied with Pa.R.A.P.
1925.
Appellant raises the following issues:
1. Did Guilty Plea Counsel Fincourt Shelton[,] and Direct
Appeal Counsel, James Peters and William Wismer render
ineffective assistance?
2. Was Guilty Plea Counsel, Fincourt Shelton, ineffective for
failing to perfect [Appellant’s] appellate rights and Direct Appeal
Counsel James Peters and William Wismer ineffective for failing
to raise Guilty Plea Counsel’s ineffectiveness?
3. Was Direct Appeal Counsel, James Peters and William
Wismer, ineffective and [Appellant] prejudiced by their failure to
object to and request correction or modification of a doctored
transcript introduced by the Commonwealth?
4. Was Guilty Plea Counsel ineffective for failing to acquire
discovery prior to advising [Appellant] to plead guilty?
5. Was [Guilty Plea Counsel] ineffective for advising
[Appellant] to plead guilty despite the existence of a meritorious
suppression claim?
6. Does an invalid warrant render the evidence seized
constitutionally infirm?
7. Was [Appellant’s] arrest made in violation of the Municipal
Police Jurisdiction Act (MPJA) and did the violation prejudiced
[sic] [Appellant]?
8. Was [Appellant’s] arrest unlawful?
9. Did Guilty Plea Counsel render ineffective assistance for
inadequately explaining [Appellant’s] rights, for lack of
communication, and by advising [Appellant] to waive his pre-
sentence investigation?
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10. Was [Guilty Plea Counsel] ineffective for failing to seek
post-sentence withdraw of guilty plea colloquy [sic] and violation
of Pennsylvania’s Forfeiture Act?
11. Is [Appellant’s] guilty plea, induced by [Guilty Plea
Counsel] threatening to withdraw, legally void?
12. Was [the] plea colloquy defective for failing to delve into
the six questions stated in Rule 590 of Pennsylvania’s Rules of
Appellate [sic] Procedure?
13. Does the Commonwealth’s violation of Pennsylvania’s
Forfeiture Act render [Appellant’s] sentence illegal?
14. Did the cumulative impact of all of the errors deprive
[Appellant] of adequate representation and due process?
Appellant’s Brief at 4-7.
When examining a post-conviction court's grant or denial of relief, we
are limited to determining whether the court's findings were supported by
the record and whether the court's order is otherwise free of legal error.
Commonwealth v. Quaranibal, 763 A.2d 941, 942 (Pa. Super. 2000). We
will not disturb findings that are supported in the record. Id. The PCRA
provides no absolute right to a hearing, and the post-conviction court may
elect to dismiss a petition after thoroughly reviewing the claims presented
and determining that they are utterly without support in the record. Id.
Moreover, 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. Commonwealth v. Carpenter, 725 A.2d 154, 160
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(Pa. 1999). 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.
Carpenter, 725 A.2d at 160; 42 Pa.C.S.A. § 9544(a)(2), (3). If a claim has
not been previously litigated, the petitioner must then prove that the issue
was not waived. Carpenter, 725 A.2d at 160. 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).
Because Appellant “could have raised” his issues 6, 7, 8, 11, and 12
“but failed to do so before trial, at trial, during unitary review, on appeal, or
in a prior state post-conviction proceeding,” they are deemed waived. 42
Pa.C.S.A. § 9544(b). See also Commonwealth v. Pfaff, 437 A.2d 1188,
1191 (Pa. 1981) (explaining that absent any claim of ineffective assistance
of counsel justifying petitioner’s failure to raise on direct appeal an error in
the court’s instructions to the jury, the issue was waived).3
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3
These claims are also waived because Appellant failed to raise them in his
Pa.R.A.P. 1925(b) statement. Commonwealth v. Smith, 146 A.2d 257,
262 (Pa. Super. 2016).
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In his thirteenth issue, Appellant challenges the legality of his
sentence. Such a claim is not subject to waiver, provided it is properly
developed. See Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa. Super.
2011) (explaining that a challenge to the legality of a sentence may be
raised as a matter of right and is not subject to waiver). Here, however,
Appellant asserts in only the most cursory fashion that his consent to forfeit
his car as part of his plea agreement violated Pennsylvania’s forfeiture
statute. See Appellant’s Brief at 43-44. This claim is undeveloped and,
therefore, waived. See generally, Commonwealth v. Tielsch, 934 A.2d
81, 93 (Pa. Super. 2007) (holding that undeveloped claims will not be
considered on appeal).
Because Appellant’s remaining claims challenge the stewardship of
prior counsel, we apply the following principles. Counsel is presumed to be
effective, and Appellant has the burden of proving otherwise.
Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super. 2004).
In order for Appellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the
evidence, 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. Commonwealth v.
Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999). Appellant
must demonstrate: (1) the underlying claim is of arguable merit;
(2) that counsel had no reasonable strategic basis for his or her
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. Id. The petitioner
bears the burden of proving all three prongs of the test.
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Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312,
319-20 (2001).
Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005). In
assessing a claim of ineffectiveness, when it is clear that an appellant has
failed to meet the prejudice prong, the court may dispose of the claim on
that basis alone, without a determination of whether the first two prongs
have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.
1995). Further, Counsel cannot be deemed ineffective for failing to pursue a
meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.
2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).
Before an evidentiary hearing will be granted, a PCRA petitioner “must
set forth an offer to prove at an appropriate hearing sufficient facts upon
which a reviewing court can conclude that trial counsel may have, in fact,
been ineffective.” Commonwealth v. Begley, 780 A.2d 605, 635 (Pa.
2001) (quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa.
1981).
We first address Appellant’s third issue in which he asserts that direct
appeal counsel were ineffective for failing to object to, and request
correction or modification of, a “doctored” transcript introduced into the
certified record by the Commonwealth. According to Appellant, the
transcript that appeared in the certified record when his appeal was decided
did not include fourteen pages in which he initially rejected the plea
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agreement offered by the Commonwealth, his desire to go to trial, and the
trial court’s offering of a continuance so that he could more fully consider the
plea offer. See Appellant’s Brief at 20. Appellant also contends that these
pages would demonstrate guilty plea counsel’s “off the record—coercing
[him] into forgoing the continuance.” Id. (footnote omitted). Appellant
avers that “[c]omparison of both of the [] transcripts not only support these
allegations but the editing out of the first 14 pages by the state will also
shock the conscience of any fair-minded jurist.” Appellant’s Brief at 20.
Appellant’s claim lacks arguable merit. Initially, we note that
transcripts generally are prepared at the defendant’s request following the
filing of an appeal. The Commonwealth is not involved in the process, and,
although the certified record now includes another copy of the guilty plea
colloquy that includes his initial rejection of the plea offer, Appellant proffers
no evidence that the Commonwealth interfered in any way with the
preparation of any transcript. Moreover, on appeal this Court affirmed his
judgment of sentence based upon a finding of waiver for failing to file a
timely motion to withdraw his plea. See Calbert, at 8-10. Thus, the
absence of the initially omitted pages is of no consequence, and therefore,
Appellant cannot establish prejudice.
Appellant’s remaining ineffectiveness claims involve Guilty Plea
Counsel’s effectiveness both before and after the entry of the plea. We first
address Appellant’s claims involving guilty plea counsel’s failure to file a
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motion to withdraw his guilty plea and/or to perfect an appeal even though
Appellant asserts that he asked him to do so. According to Appellant,
[i]mmediately following the [p]lea, Appellant requested counsel
to file a [m]otion to [w]ithdraw the plea. However, [c]ounsel
not only failed to do so but also failed to consult with Appellant
without formally seeking or being granted leave to withdraw[.]
Appellant, in a desperate attempt to preserve his appeal rights,
was left to [pro se] file a[n untimely] [p]ost [s]entence [m]otion
to [w]ithdraw his [g]uilty [p]leas[.]
Appellant’s Brief at 8. Moreover, as noted above, on direct appeal we
questioned plea counsel’s status and further questioned why Appellant’s pro
se filings were not forwarded to him. See, supra, n.1.
Neither the PCRA court nor the Commonwealth directly addresses this
claim.4 Rather, both assert that the guilty plea proceedings establish that
Guilty Plea Counsel’s representation was effective. As correctly recognized
by Appellant, however, if counsel is found to have ignored a petitioner’s
request to file an appeal, or did not consult with him regarding same, the
petitioner is entitled to the reinstatement of his appeal rights nunc pro tunc
and no merit analysis of any other issues occurs. See Appellant’s Brief at
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4
The Commonwealth did reference a letter to Guilty Plea Counsel that
Appellant had attached to his pro se PCRA petition. This letter was dated
ten days after entry of the pleas. The Commonwealth therefore argues
“[t]here is no suggestion that counsel was aware of [Appellant’s] claim
before the ten-day period to file for a motion to withdraw [the plea]
expired.” Commonwealth’s Brief at 22. As noted infra, Appellant’s
assertions have raised a factual issue to be resolved at an evidentiary
hearing.
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14; see also Commonwealth v. Donaghy, 33 A.3d 12, 15-17 (Pa. Super.
2011) (reiterating that when a defendant clearly asks for an appeal and
counsel fails to file one or consult with his client, a presumption of prejudice
arises regardless of the merits of the underlying claims).
Given these circumstances, we agree with Appellant that he has raised
a genuine issue of material fact which warrants remanding this case for an
evidentiary hearing. Although Appellant litigated a counseled appeal in this
case, the raising of a non-preserved issue resulting in a finding of waiver has
been determined by our Supreme Court to be the functional equivalent of no
appeal. See, generally, Commonwealth v. Rosado, 150 A.3d 425 (Pa.
2016). We therefore vacate the order denying Appellant’s PCRA petition and
remand for an evidentiary hearing so that plea counsel can answer
Appellant’s assertions regarding the quality of his representation.5
Order vacated. Case remanded for further proceedings consistent
with this memorandum. Jurisdiction relinquished.
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5
Although within this same issue, Appellant raises a layered claim of
appellate counsel ineffectiveness, the claim is waived for failure to raise it in
his Pa.R.A.P. 1925(b) statement. See n.3, supra. In addition, given our
remand, we need not address Appellant’s fourteenth claim in which he
alleges cumulative prejudice.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2017
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