Opinion
J-S35042-14 No. 1823 MDA 2013
07-16-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DARRIN GOINS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the PCRA Order entered September 12, 2013,
in the Court of Common Pleas of Lackawanna County,
Criminal Division at No(s): CP-35-CR-0001384-2010
BEFORE: DONOHUE, WECHT, and STRASSBURGER, JJ. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
Darrin Goins (Appellant) appeals from the September 12, 2013 order which dismissed without a hearing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate the order and remand for further proceedings consistent with this memorandum.
The PCRA court summarized the history of the case as follows.
On November 1, 2010, [Appellant] pled guilty to one count of aggravated assault and in exchange the other five charges pending against [Appellant] were nolle prossed. These charges arose on April 5, 2010, when [Appellant] struck the victim and caused him to permanently lose vision in his right eye. On December 23, 2010, [Appellant] filed a motion to withdraw his plea. The court held a hearing on the motion and denied the motion. On February 11, 2011, [Appellant] was sentenced to 96 months to 20 years [of incarceration]. On February 17, 2011, [Appellant] filed a Motion for Reconsideration of Sentence. On February 18, 2011, the Commonwealth filed a Motion for Reconsideration of Sentence, requesting that the court order [Appellant] to pay $346,652 in restitution, or schedule a hearing at a later date when the exact restitution amount could bePCRA Court Opinion, 11/19/2013, at 1-2.
determined. On August 29, 2011, the court amended [Appellant's] sentence and ordered him to pay $71,908 in restitution. [Appellant] was represented by John Lawler, Esq.
On May 31, 2012, [Appellant] filed a Petition for [PCRA] relief. Kurt Lynott , Esq. was appointed to represent [Appellant]. On May 28, 2012, Mr. Lynott filed a Motion to Withdraw as Counsel pursuant to a Turner-Finley Letter. On July 30, 2013, this motion was granted and [the PCRA] court issued a Notice of Intent to Dismiss the PCRA petition. On September 12, 2013, [the PCRA] court dismissed the petition. On October 3, 2013, [Appellant] filed a Notice of Appeal to the Superior Court. On October 15, 2013, [the PCRA] court ordered [Appellant] to file a Concise Statement of Matters Complained of on Appeal. On October 23, 2013, [Appellant] sent [the PCRA] court his concise statement.
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).
Appellant states four questions for this Court's review, which we have renumbered for ease of disposition.
I. Whether the lower court erred in concluding that the PCRA petition was without merit without holding an evidentiary hearing.Appellant's Brief at vi.
[II] . Whether [the] lower court violated [A]ppellant[']s constitutional rights by not finalizing [Appellant's] sentence and keeping it open to add restitution at a later date, thus in changing the entire sentencing scheme and breaching the guilty plea.
[III] . Whether appointed counsel(s) were ineffective in the representation in the [A]ppellant[']s defense and on appeal:
A. Sentencing counsel for not filing proper appeals on [A]ppellant[']s behalf
[IV]. Whether [the] lower court violated [A]ppellant[']s Constitutional rights by denying his guilty plea withdrawal before sentencing.1. Guilty Plea WithdrawalB. PCRA counsel for not amending, perfecting [A]ppellant[']s petition before filing [a] [F]inley letter.
2. Direct Appeal
"Our standard of review of a trial court order granting or denying relief under the PCRA calls upon us to determine 'whether the determination of the PCRA court is supported by the evidence of record and is free of legal error.'" Commonwealth v. Barndt , 74 A.3d 185, 192 (Pa. Super. 2013) (quoting Commonwealth v. Garcia , 23 A.3d 1059, 1061 (Pa. Super. 2011)).
"In order to be eligible for PCRA relief, Appellant must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found at 42 Pa.C.S. § 9543(a)(2)[.]" Commonwealth v. Hanible , 30 A.3d 426, 438 (Pa. 2011). Those circumstances are as follows.
(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.42 Pa.C.S. § 9543(a)(2). "Further, Appellant must demonstrate that the issues raised in his PCRA petition have not been previously litigated or waived." Hanible , 30 A.3d at 438.
(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.
(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.
Appellant's first claim is that the PCRA court erred in denying his petition without a hearing. "A PCRA petitioner is not entitled to an evidentiary hearing as a matter of right, but only where the petition presents genuine issues of material fact." Commonwealth v. Keaton , 45 A.3d 1050, 1094 (Pa. 2012). "A PCRA court has discretion to dismiss a petition if it is satisfied there are no genuine issues concerning any material fact or any other legitimate purposes for an evidentiary hearing." Commonwealth v. Fears , 86 A.3d 795, 823 (Pa. 2014). Thus, whether Appellant was entitled to a hearing depends upon whether he raised a genuine issue of material fact. Accordingly, we examine the issues raised by Appellant to determine whether the PCRA court was faced with factual issues necessitating a hearing prior to dismissal of the petition.
Appellant's first substantive claim, that his sentence is illegal, is cognizable under the PCRA. Commonwealth v. Turner , 58 A.3d 845, 847 (Pa. Super. 2012) ("Appellant's overall claim is that his sentence is unlawful. Such claims are cognizable under the PCRA."). Appellant argues that the post-sentence addition of an order of restitution was contrary to law and violated his plea agreement. Appellant's Brief at 8-10. Specifically, Appellant states that his "plea agreement was for a sentence of seven and a half (7 ½) to twenty (20) years with no restitution, which was handed down on February 11, 2011." Id. at 8.
This assertion is belied by the record. At the plea colloquy, the Commonwealth indicated that Appellant intended to plead guilty to "Count 1 of the criminal information, which is aggravated assault, it's graded as a felony of the first degree with a maximum sentence of 20 years and $25,000. In exchange for that plea, your Honor, the Commonwealth would nol-pros the remaining charges at the time of sentencing." N.T., 11/1/2010, at 2. Nowhere in the plea colloquy is there any reference to a negotiated sentence of 7½ to 20 years of imprisonment or an agreement that there would be no order of restitution. To the contrary, regarding the sentence, the trial court informed Appellant that
if I accept your plea what I will do is order a presentence investigation. I will look at the facts and circumstances concerning this case. I will consider your background, your prior record score, and anything that you wish to submit for me to consider before imposing sentence. I will consult the sentencing guidelines and then I will take all of those things into consideration in order to formulate what I believe is in accordance with the law.Id. at 6. Appellant indicated that he understood the procedure. Id. He further acknowledged that no other promises had been made to him other than that the Commonwealth would drop all of the other charges against him if he pled guilty to aggravated assault. Id. Accordingly, the PCRA court did not err in holding that there was no merit to Appellant's claim that his plea agreement was breached by the ordering of restitution to the victim of his aggravated assault.
Appellant also argues that the restitution portion of his sentence is illegal because the sentencing court did not order restitution at the time of his original sentencing. The restitution statute at issue provides, in relevant part, as follows.
§ 1106. Restitution for injuries to person or property
(a) General rule.--Upon conviction for any crime wherein ... the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.
* * *
(c) Mandatory restitution.--
(1) The court shall order full restitution:
(i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss. ...
* * *
18 Pa.C.S. § 1106 (emphasis added).(2) At the time of sentencing the court shall specify the amount and method of restitution. In determining the amount and method of restitution, the court:
(i) Shall consider the extent of injury suffered by the victim, the victim's request for restitution as presented to the district attorney in accordance with paragraph (4) and such other matters as it deems appropriate.(3) The court may, at any time or upon the recommendation of the district attorney that is based on information received from the victim and the probation section of the county or other agent designated by the county commissioners of the county with the approval of the president judge to collect restitution, alter or amend any order of restitution made pursuant to paragraph (2), provided, however, that the court states its reasons and conclusions as a matter of record for any change or amendment to any previous order.
(ii) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just.
(iii) Shall not order incarceration of a defendant for failure to pay restitution if the failure results from the offender's inability to pay.
(iv) Shall consider any other preexisting orders imposed on the defendant, including, but not limited to, orders imposed under this title or any other title.
(4) (i) It shall be the responsibility of the district attorneys of the respective counties to make a recommendation to the court at or prior to the time
of sentencing as to the amount of restitution to be ordered. This recommendation shall be based upon information solicited by the district attorney and received from the victim.
(ii) Where the district attorney has solicited information from the victims as provided in subparagraph (i) and has received no response, the district attorney shall, based on other available information, make a recommendation to the court for restitution.
(iii) The district attorney may, as appropriate, recommend to the court that the restitution order be altered or amended as provided in paragraph (3).
At sentencing, the court noted the lack of information in the file regarding restitution. N.T., 2/11/2011, at 28. The Commonwealth indicated that restitution was recommended, but that it did not "have concrete numbers at this point" because the victim's insurer was "fighting with" the medical providers. Id. In response, the sentencing court stated as follows.
You know that the burden is on and the obligation of submitting a claim for restitution is on the Commonwealth and it must be presented at the time of sentencing. If you obtain [the necessary information] within the ten-day reconsideration period then you may, of course, file for reconsideration on that point, but at this point this time being nothing to support a claim I cannot order a payment of restitution.Id. The Commonwealth timely filed a motion for a reconsideration of sentence on February 18, 2011. In that motion, the Commonwealth indicated that the total amount of restitution requested, based upon information supplied by the victim, was $349,152.00. Commonwealth's Motion for Reconsideration of Sentence, 2/18/2011, at ¶ 5. However, the Commonwealth again informed the sentencing court that the victim's insurer was disputing the amount sought by the treating hospitals. Id. at ¶ 8. Accordingly, the Commonwealth requested that the sentencing court grant the motion for reconsideration and either (1) order restitution in the amount of $349,152.00, or (2) schedule a hearing to determine the proper restitution amount.
The sentencing court scheduled a restitution hearing to take place on July 5, 2011. The hearing was rescheduled at Appellant's request to take place on August 22, 2011. Meanwhile, Appellant, although represented by counsel, made numerous pro se filings, including a premature PCRA petition which the trial court dismissed by order of August 11, 2011. On August 29, 2011, the sentencing court entered an order fixing the amount of restitution at $71,908.00.
Assuming arguendo that Appellant is correct that the sentencing court erred in not ordering restitution at the time of sentencing, the sentencing court, acting upon the Commonwealth's timely-filed motion for modification of sentence, corrected any initial error by including an order of restitution in Appellant's sentence. Contrary to Appellant's assertion, the sentencing court did not "leave restitution open to determination at a later date." Appellant's Brief at 9. Rather, it held a hearing, delayed by Appellant's request for a continuance, upon the Commonwealth's challenge to Appellant's initial sentence as permitted by Pa.R.Crim.P. 721 ("Procedures for Commonwealth Challenges to Sentence"). Appellant has not convinced us that the sentence imposed following the grant of the Commonwealth's motion for reconsideration of sentence was illegal.
In support of his argument, Appellant relies upon Commonwealth v. Dinoia , 801 A.2d 1254 (Pa. Super. 2002), and Commonwealth v. DeShong , 850 A.2d 712 (Pa. Super. 2004), both of which are readily distinguishable. In Dinoia , the sentencing court ordered restitution as part of Dinoia's sentence, but specified no amount, and did not hold a hearing to determine the amount of the restitution sentence for 18 months. In Deshong , the restitution sentence was illegal because it delegated calculation of the amount of restitution to the county probation department, in violation of 18 Pa.C.S. § 1106(c)(2) ("At the time of sentencing the court shall specify the amount and method of restitution."). Neither of these cases entitles Appellant to relief.
Appellant's sentence violated neither a plea agreement nor the applicable law regarding sentencing a defendant to pay restitution. Appellant presented no factual issues on these questions that warranted a hearing. Accordingly, the PCRA court did not err or abuse its discretion in dismissing Appellant's legality-of-sentence claim.
Appellant's next claim, that trial counsel was ineffective in failing to file a direct appeal challenging the denial of his plea withdrawal, is also cognizable under the PCRA. See Appellant's Brief at 13; 42 Pa.C.S. § 9543(a)(2)(ii).
"Article V, Section 9 of the Pennsylvania Constitution guarantees a direct appeal as of right." Commonwealth v. Lantzy , 736 A.2d 564, 571 (Pa. 1999).
It is well settled that when a lawyer fails to file a direct appeal requested by the defendant, the defendant is automatically entitled to reinstatement of his direct appeal rights. Where a defendant does not ask his attorney to file a direct appeal, counsel still may be held ineffective if he does not consult with his client about the client's appellate rights. Such ineffectiveness, however, will only be found where a duty to consult arises either because there were issues of merit to raise on direct appeal or the defendant, in some manner, displayed signs of desiring an appeal.Commonwealth v. Markowitz , 32 A.3d 706, 714 (Pa. Super. 2011) (citations omitted), appeal denied, 40 A.3d 1235 (Pa. 2012). "The petitioner has the burden of proving that he requested a direct appeal and that his counsel heard but ignored or rejected the request." Commonwealth v. Maynard , 900 A.2d 395, 398 (Pa. Super. 2006).
Appellant claims in his brief that he asked trial counsel to file a direct appeal. Appellant's Brief at 13. The claim, arguably, is raised in his PCRA petition, in which he challenges trial counsel's effectiveness and the denial of his motion to withdraw the guilty plea. PCRA Petition, 5/31/2012, at 3. Appellant also notes his desire for the reinstatement of his appellate rights in his response to the PCRA court's notice of intent to dismiss. Motion in Opposition to Notice of Intent to Dismiss PCRA Petition, 8/23/2013, at ¶ 6. Clearly, a factual finding that Appellant asked counsel to file a direct appeal would entitle Appellant to relief, even absent a showing of prejudice. Lantzy , 736 A.2d at 571 ("[A] failure to file or perfect such [a direct] appeal results in a denial so fundamental as to constitute prejudice per se."). However, Appellant was not given the opportunity of a hearing to prove that he asked counsel to file an appeal.
To the extent that the claim was not well-pled, we agree with Appellant that PCRA counsel was ineffective in failing to amend the petition to perfect the claim. Appellant's Brief at 13; Motion in Opposition to Notice of Intent to Dismiss PCRA Petition, 8/23/2013, at ¶¶ 2-5. Appellant preserved this issue by raising it in response to the PCRA court's notice of intent to dismiss. Commonwalth v. Rykard , 55 A.3d 1177, 1191 (Pa. Super. 2012) (holding that the appellant did not waive his claim that PCRA counsel was ineffective because he "followed the procedure outlined by [Commonwealth v. Pitts , 981 A.2d 875 (Pa. 2009)] to preserve this issue and the claim is not being raised for the first time on appeal."). PCRA Counsel's Turner / Finley letter fails even to mention, let alone explain a lack of merit in, the claims in Appellant's pro se PCRA petition regarding the allegedly improper denial of his motion to withdraw his guilty plea.
The record evidences that Appellant did not have a good relationship with trial counsel. On November 17, 2010, Appellant filed pro se a motion to withdraw his guilty plea in which he asserted that counsel was exhibiting a lack of cooperation and communication with him. Motion to Withdraw Guilty Plea, 11/17/2010, at ¶ 8. The trial court sent an order to Appellant and his counsel, rejecting the hybrid representation and forwarding Appellant's motion to counsel. Order, 11/17/2010. The next day, Appellant filed a motion for the appointment of new counsel in which he claimed, inter alia, that counsel was not communicating with him. Motion for Appointment of New Counsel, 11/18/2010. More than one month later, counsel filed on Appellant's behalf a petition to withdraw the guilty plea, in which he noted that the assertion of innocence is a basis for granting the withdrawal of the plea. Petition to Withdraw Guilty Plea, 12/23/2010, at ¶ 6. At the hearing on the petition to withdraw the guilty plea, Appellant again reiterated that he wanted to have a different attorney appointed to represent him because trial counsel was not communicating with him. N.T., 1/28/2011, at 7-8.
Further, pre-sentence requests to withdraw a guilty plea should be liberally granted. Commonwealth v. Pardo , 35 A.3d 1222, 1226 (Pa. Super. 2011). "[I]f a defendant asserts his innocence as a basis for withdrawal of a guilty plea before being sentenced, that request must be granted unless the Commonwealth would be prejudiced." Commonwealth v. Unangst , 71 A.3d 1017, 1021 (Pa. Super. 2013). Thus, it appears counsel may have had reason to consult with Appellant about his direct appeal rights following the denial of Appellant's pre-sentence motion to withdraw his plea. Without a hearing, we have no factual determination whether counsel did so consult.
Therefore, we hold that the PCRA court erred in dismissing Appellant's PCRA petition without holding a hearing to determine whether Appellant asked trial counsel to file a direct appeal, or, if not, whether Appellant displayed signs of desiring an appeal, whether counsel had a duty to consult with Appellant about an appeal, and whether counsel did so consult. Accordingly, we remand for a hearing on these issues.
Appellant's final question on appeal is to ask this Court to hold that the trial court erred in denying his motion to withdraw his guilty plea because he asserted his innocence. Appellant's Brief at 6 (citing Unangst , supra ). This issue does not fall within the list of claims cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(2). Rather, Appellant may litigate this issue on his nunc pro tunc direct appeal if the PCRA court determines, as discussed above, that Appellant is entitled to reinstatement of his direct appeal rights.
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Further, Appellant is entitled to the appointment of counsel to represent him at the hearing. Commonwealth v. Hampton , 718 A.2d 1250, 1254 (Pa. Super. 1998) ("[W]here... the record fails to demonstrate meaningful participation by counsel appointed to represent an indigent petitioner filing his first petition, we will remand for appointment of new counsel.").
Order vacated. Case remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary