Opinion
J-S63028-17 No. 354 WDA 2017
11-30-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. ANTHONY RICHARD TERRY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Dated February 1, 2017
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0002314-2011 BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY SOLANO, J.:
Appellant Anthony Richard Terry pleaded guilty in 2012 to sexual assault and simple assault. In 2014, he was resentenced following a violation of his probation. Appellant now appeals from an order dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
18 Pa.C.S. §§ 3124.1 and 2701(a)(1), respectively.
Between August 15 and August 17, 2011, Appellant and Charity Burnworth were residing together as boyfriend and girlfriend. During those three days, Appellant physically assaulted Burnworth, and on August 17, he sexually assaulted her by forcing his penis into her vagina. Burnworth reported what happened to her supervisor at work, who took her to the hospital. N.T., 9/7/12, at 6. Appellant then was criminally charged.
The procedural history of this action was described by the PCRA court in its Order and Notice dated December 22, 2016:
[Appellant] entered into a plea agreement with the Commonwealth on September 7, 2012 regarding the charge of Sexual Assault and one count of Simple Assault; all other charges were nolle prossed. In exchange for pleading guilty, [the trial court] sentenced [Appellant] to 1 year less 1 day to 2 years less 2 days of incarceration on the charge of Simple Assault. On the count of Sexual Assault, [the trial court] sentenced [Appellant] to a consecutive period of 4 years of state probation.1
1 In addition, [Appellant] was ordered to undergo a Megan's Law assessment, domestic violence counseling, and sexual offender counseling. The [trial c]ourt further ordered that [Appellant] pay the costs of prosecution and complete a drug and alcohol evaluation and follow any recommended treatment. Finally, the [trial c]ourt proscribed contact with the victim and permitted work release while incarcerated upon verification of employment.
[Appellant] was released from the Washington County Correctional Facility on August 26, 2013, at which time he came under the parole supervision of the State Parole and Probation Department. On May 8, 2014, with assistance from Agent Renee Coll, State Parole Agent Patrick Hudock took [Appellant] into custody in the area of 150 W Beau Street for alleged parole violations. Due to the proximity to the Washington County Jail, Washington County Adult Probation was contacted and subsequently lodged a detainer against [Appellant]. [Appellant] was transported from the location of his arrest to the jail to await violation proceedings. The case was ultimately re-assigned from [the trial court] to the [violation of parole/probation ("VOP") court under Judge Gary Gilman].
While in the Washington County Jail, [Appellant] retained the legal services of the Public Defender's office. Assistant Public Defender Christopher Sherwood presented a Motion to Lift Detainer on August 28, 2014. Therein, Mr. Sherwood requested that the [VOP c]ourt lift the Adult Probation detainer because [Appellant] had been incarcerated for approximately three months without having a Gagnon I hearing.2 Upon
consideration of the petition, the [VOP c]ourt scheduled a hearing for October 1, 2014.
2 Gagnon v. Scarpelli , 411 U.S. 778 (1973) (discussing revocation hearings).
Order & Notice, 12/22/16, at 1-3.
At the October 1, 2014 hearing, the [VOP c]ourt issued a rule to show cause against the Commonwealth to file a probation revocation petition by October 10, 2014 or else the detainer against [Appellant] would be lifted. The [VOP c]ourt's order further provided that if the Commonwealth filed a petition by October 10, 2014, the [VOP c]ourt would hold a hearing on October 14, 2014. The Commonwealth filed a probation revocation petition on October 7, 2014. Consequently, the [VOP c]ourt conducted a Gagnon II hearing on October 14, 2014. On October 15, 2014, the [VOP c]ourt issued an order revoking, [Appellant]'s probation on the Sexual Assault charge and resentencing him to 1 year to 2 years of incarceration at a state penitentiary.
On October 29, 2014, Appellant filed a pro se handwritten document entitled "Order of Discovery." In it, Appellant asserted that he should have been "put in [a] halfway house" and not incarcerated in a correctional facility.
Appellant also wrote: "time serve[d] in jail for the [case] 1 [year] less a day (11) month to day time server" and "put diwter in haly [house] in Pitt[sburgh,] [P]a o[r] Moon T[o]w[nshi]p" [sic]. We are unable to discern the meaning of this portion of Appellant's statement.
On May 8, 2015, Appellant filed a pro se application for leave to appeal nunc pro tunc. On June 9, 2015, Appellant filed a pro se petition for habeas corpus, a petition to expunge, and an application to the "Court for an Order for a Bill of Particulars." On June 29, 2015, Appellant filed a pro se "omnibus motion" insisting that "Police did not have probable cause to execute the arrest warrants." Omnibus Mot., 6/29/15, at 1. On July 21, 2015, Appellant filed a pro se petition for reconsideration. On July 31, 2015, Appellant filed a second pro se writ of habeas corpus.
On September 28, 2015, the court appointed Stephen Paul, Esquire, "as PCRA counsel." Order, 9/29/15. Despite now being represented by counsel, on October 6, 2015, Appellant filed a pro se "Motion for Copy of Discover Order and DNA for the Case." On November 4, 2015, Appellant filed two separate pro se applications seeking a change of venue and a supersedeas pending appeal. On February 23, 2016, the court "ordered that Timothy Lyon, Esquire, is appointed to represent [Appellant,] replacing Stephen Paul, Esquire." Order, 2/23/16.
On February 25, 2016, Appellant filed a pro se PCRA petition. The court described the subsequent proceedings before it as follows:
PCRA counsel filed three uncontested requests for extensions of time to file an amended PCRA petition, all of which were granted. On October 2[6], 2016, PCRA counsel filed an Amended Petition Pursuant to the Post Conviction Relief Act[, alleging that Appellant "received ineffective assistance of counsel when Attorney Sherwood[, Appellant's counsel at the VOP hearing, did not challenge" the sentencing order of October 14, 2014, "or file an appeal on Appellant's behalf." Am. PCRA Pet., 10/26/16, at ¶ 26.] On that same day, the [PCRA c]ourt issued an order scheduling an evidentiary hearing for December 15, 2016 concerning the amended petition.
At the December 15, 2016 PCRA hearing, [Appellant] testified that the reason for filing his petition was that he did not have any type of violation hearing after his May 8, 2014 arrest for more than three months.3 [Appellant] claimed that after the
October 14, 2014 Gagnon II hearing, but before being escorted back to the Washington County Jail, he asked Mr. Sherwood to file an appeal for this very reason and that Mr. Sherwood did not comply with his instructions. [Appellant] presented Exhibit A to support his claim that he wanted Mr. Sherwood to file an appeal on this basis.4 Exhibit A is entitled Motion for Discovery and it was filed with the Washington County Clerk of Courts on October 29, 2014. Therein, [Appellant] claimed that he had not had a Gagnon I hearing (also known as a preliminary hearing) for three months after being arrested and that he had filed 5 separate petitions and motions without [] any success of having a violation hearing.5
3 There was no testimony concerning when, or if, [Appellant] had a Gagnon I hearing. Certainly, the law requires that there be two independent hearings. Commonwealth v. Homoki , 605 A.2d 829, 831 (Pa. Super. Ct. 1992). In Washington County, the Gagnon I hearing is conducted by the probation officers; the Gagnon II hearing is conducted by the trial court. This issue, however, is not material because [Appellant] never raised the issue in his PCRA petition.
4 During the December 15, 2016 hearing, Mr. Sherwood testified that he and [Appellant] did speak immediately after the Gagnon II hearing. According to Mr. Sherwood, however, [Appellant] never asked him to file an appeal because a Gagnon I hearing did not take place for more than 3 months. Mr. Sherwood testified that [Appellant] was upset about the disposition of the Gagnon II hearing and that they only discussed the merits of filing an appeal regarding the length of the sentence that the [VOP c]ourt had imposed. Mr. Sherwood testified that he informed [Appellant] that he did not think there would be any merit to filing an appeal on the basis of the length of the sentence because he did not believe that the [VOP c]ourt had abused its discretion and there would be no substantial question on the sentence, Mr. Sherwood stated that, in response, [Appellant] agreed that he did not want to follow through with filing an appeal.
5 A close review of the record reveals that [Appellant] filed 3 pleadings regarding this issue. All three were filed with the Clerk of Courts on May 22, 2014. [Appellant] entitled these
Order & Notice, 12/22/16, at 3-4. On February 1, 2017, the PCRA court dismissed Appellant's amended PCRA petition.pleadings as requests for a Gagnon I , a Gagnon II , and a court hearing.
On March 1, 2017, Appellant filed a notice of appeal to this Court. Appellant has raised the following issue for this Court's review, which we repeat verbatim:
Whether the PCRA court erred in denying [Appellant]'s amended PCRA petition seeking the reinstatement of appellate rights where the PCRA court's decision is grounded upon credibility determinations that lack support in the record?Appellant's Brief at 8.
On July 7, 2017, this Court sent the Commonwealth a letter informing it that, pursuant to Pa.R.A.P. 2185(a), its brief was due by August 7, 2017. On September 27, 2017 - over fifty days after its brief was due — the Commonwealth filed a motion for an extension of time to file its brief. We deny the Commonwealth's motion.
Our standard of review of an order dismissing a petition under the PCRA requires that we determinate whether the order is supported by the evidence of record and is free of legal error. Commonwealth v. Halley , 870 A.2d 795, 799 n.2 (Pa. 2005). "The findings of a post-conviction court, which hears evidence and passes on the credibility of witnesses, should be given great deference." Commonwealth v. Johnson , 966 A.2d 523, 532 (Pa. 2009).
After careful review of the parties' briefs, the record, and the well-reasoned decision of the Honorable Gary Gilman, we affirm on the basis of the PCRA court's order dated February 1, 2017. See Order, 2/1/17, at 3-4 (finding that Attorney Sherwood testified credibly that Appellant did not request an appeal, and finding Appellant's testimony to the contrary not to be credible). We defer, as we must, to the PCRA court's credibility determinations. Johnson , 966 A.2d at 532. The parties are instructed to attach a copy of the PCRA court's order dated February 1, 2017, to all future filings that reference this Court's decision.
Commonwealth's untimely motion for extension of time to file brief denied. Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/30/2017
Image materials not available for display.