Opinion
J-S30007-14 No. 1957 MDA 2013
07-01-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. GARY P. EVANS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered October 2, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005087-2006
BEFORE: BENDER, P.J.E. MUNDY, J., and JENKINS, J. MEMORANDUM BY BENDER, P.J.E.:
Appellant, Gary P. Evans, appeals from the trial court's October 2, 2013 order denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
In December of 2006, Appellant was convicted following a jury trial of three counts of indecent assault and one count each of corruption of a minor and unlawful contact with a minor. His convictions stemmed from his sexual abuse of a ten year old female victim. On February 28, 2007, Appellant was sentenced to an aggregate term of 11½ to 23 months' incarceration, followed by five years' probation.
At this point, the procedural history of Appellant's case becomes extremely complex. Rather than filing a direct appeal from Appellant's judgment of sentence, his newly retained counsel, Joseph Kalasnik, Esq., (who was not the attorney who represented Appellant at trial), filed a PCRA petition on Appellant's behalf on April 11, 2007. Therein, he raised numerous claims, including various allegations of trial counsel's ineffectiveness. On May 23, 2007, a PCRA hearing was conducted, at which Appellant, his trial counsel, and several other witnesses testified. On June 21, 2007, the PCRA court issued an order denying Appellant's petition ("June 21, 2007 order"). Attorney Kalasnik did not file a notice of appeal on Appellant's behalf.
On April 30, 2008, Appellant filed a second PCRA petition pro se, asking the court to reinstate his direct appeal rights nunc pro tunc. Appellant also requested that the court restore his right to appeal from the June 21, 2007 order, arguing that Attorney Kalasnik acted ineffectively by not filing such an appeal. After conducting an evidentiary hearing at which Appellant and Attorney Kalasnik testified, the PCRA court issued an order on March 9, 2009, granting the reinstatement of Appellant's direct appeal rights nunc pro tunc, but denying Appellant's request to reinstate his right to appeal from the June 21, 2007 order.
Counsel was subsequently appointed to represent Appellant.
On March 24, 2009, Appellant filed two separate notices of appeal - one nunc pro tunc direct appeal from his judgment of sentence, and one appeal from the PCRA court's December 19, 2008 order denying the reinstatement of Appellant's right to appeal from the June 21, 2007 order. This Court consolidated Appellant's appeals and issued a memorandum decision on May 24, 2011. Therein, we agreed with Appellant's direct appeal challenge to the legality of his sentence, and vacated his judgment of sentence as illegal. Commonwealth v. Evans, No. 526 MDA 2009, unpublished memorandum at 20-21 (Pa. Super. filed May 23, 2011). However, we quashed Appellant's appeal from the December 19, 2008 order denying the reinstatement of his right to appeal from the June 21, 2007 order based on the following rationale:
In Commonwealth v. Miller, this Court addressed a case where the PCRA court reinstated appellant's direct appeal rights nunc pro tunc and also denied Appellant's ineffective assistance of counsel claim, finding it merited no relief. Commonwealth v. Miller, 868 A.2d 578, 579 (Pa.Super. 2005), appeal denied, 584 Pa. 685, 881 A.2d 819 (2005). Subsequently, the appellant appealed the portion of the court's order denying his ineffectiveness claim. Id. In evaluating the PCRA appeal, this Court held:Id. at 22-23.
Because the PCRA court granted Appellant reinstatement of his appellate rights nunc pro tunc, its consideration of Appellant's additional issue did not result in a disposition [a]ppellant could appeal.Id. at 580 (emphasis added). Thus, the court concluded "the only appeal Appellant could properly present was the nunc pro tunc direct appeal granted to him by the PCRA court." Id. at 581.
In the instant case, the PCRA court reinstated Appellant's right to a direct appeal nunc pro tunc. The court went on, however, to evaluate Appellant's request to file an appeal nunc pro tunc from the denial of his 2007 PCRA petition, based on counsel's alleged ineffectiveness. The PCRA court decided this
issue merited no relief, and Appellant now asks this Court to review and reverse that decision, even though Appellant is simultaneously pursuing his direct appeal from the judgment of sentence. On these facts, Miller prevents review of Appellant's collateral claims at this time. See id. Appellant presently is limited to a direct appeal of his judgment of sentence. See id.; [ Commonwealth v. Kubis ], [808 A.2d 196, 198 n.4 (Pa. Super. 2002), appeal denied, 813 A.2d 839 (Pa. 2002)]. Further, any subsequent PCRA petition Appellant files will be considered a first PCRA petition for timeliness purposes. See Commonwealth v. Karanicolas, 836 A.2d 940, 944 (Pa.Super. 2003) (holding PCRA petition brought after direct appeal nunc pro tunc is considered defendant's first PCRA petition). Therefore, once his original judgment of sentence becomes final, Appellant will be able to pursue a timely petition for collateral relief under the PCRA.
Appellant thereafter petitioned for permission to appeal to our Supreme Court, which was denied on April 4, 2012. Commonwealth v. Evans, 30 A.3d 546 (Pa. Super. 2011), appeal denied, 42 A.3d 290 (Pa. 2012). On June 1, 2012, Appellant was resentenced to a term of five years' probation. He did not appeal from that judgment of sentence and, as such, it became final on July 1, 2012.
On June 28, 2013, Appellant filed the timely PCRA petition underlying the instant appeal. Therein, he raised many of the same claims presented in his April 11, 2007 petition, which were denied by the court on June 21, 2007. Appellant additionally asserted, however, that the PCRA court's March 9, 2009 order denying his request to reinstate his right to appeal from the June 21, 2007 order was erroneous, as Attorney Kalasnik rendered ineffective representation in failing to file that appeal.
On August 5, 2013, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition without a hearing. Appellant did not respond, and the court issued an order dismissing his petition on October 2, 2013. Appellant filed a timely notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he raises the following four questions for our review:
A. Whether the ... []PCRA[] [c]ourt abused its discretion when it denied [Appellant] a new trial where trial counsel failed to call character witnesses for his defense, failed to present testimony of [Appellant's] habit and custom of properly caring for and supervising children, and gave a deficient proffer to the trial court, ultimately resulting in the exclusion of some of the witnesses at trial?Appellant's Brief at 4.
B. Whether the PCRA [c]ourt abused its discretion when it denied [Appellant] a new trial where trial counsel failed to call critical witnesses for his defense who would have refuted the story of [Appellant's] accuser in many significant respects?
C. Whether the PCRA [c]ourt abused its discretion when it denied [Appellant] reinstatement of his appellate rights from the denial of his initial PCRA [p]etition where [Appellant] told his PCRA attorney to appeal, but his PCRA attorney did not file an appeal because [Appellant's] wife told the attorney not to appeal?
D. Whether the PCRA [c]ourt abused its discretion when it denied [Appellant] reinstatement of his appellate rights from the denial of his initial PCRA [p]etition where the PCRA attorney did not make a reasonable attempt to ascertain whether or not [Appellant] wanted to appeal before the expiration of the appeal period?
As Appellant correctly acknowledges in his brief, before we may address the merits of his issues, we must determine if his "instant PCRA petition is procedurally proper." Id. at 23 (emphasis omitted). Appellant's assertions of trial counsel's ineffectiveness were presented in his April 11, 2007 petition, and were denied by the PCRA court's June 21, 2007 order after a full evidentiary hearing. Again, Appellant did not appeal from the denial of that petition. Therefore, we must determine if Appellant is permitted to reassert these claims in the current PCRA proceeding.
Appellant maintains that it was appropriate for him to raise his claims of trial counsel's ineffectiveness for a second time because his "instant PCRA petition is really a first petition under law[,]" as pointed out by this Court in our May 24, 2011 memorandum decision. Appellant's Brief at 23; see also Evans, No. 526 MDA 2009, at 23 (stating "any subsequent PCRA petition Appellant files will be considered a first PCRA petition for timeliness purposes") (citing Karanicolas, 836 A.2d at 944)). Appellant further maintains that his trial counsel ineffectiveness claims have not been previously litigated or waived under this Court's rationale in Commonwealth v. Barnett, 25 A.3d 371 (Pa. Super. 2011), appeal granted, order vacated on other grounds, 84 A.3d 1060 (Pa. 2014).
Section 9544 of the PCRA precludes review of issues that are previously litigated or waived. See 42 Pa.C.S. § 9543(a)(3) (to be eligible for PCRA relief, petitioner must plead and prove "[t]hat the allegation of error has not been previously litigated or waived[]"); 42 Pa.C.S. § 9544(a) (stating "an issue has been previously litigated if: ... (3) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence[]"); 42 Pa.C.S. § 9544(b) (stating "an issue is waived 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[]").
Appellant's arguments are unconvincing. Initially, in our May 24, 2011 memorandum decision quoted, supra, and in Karanicolas, this Court specified that a PCRA petition filed after a direct appeal nunc pro tunc is a "first" petition "for timeliness purposes." See Evans, No. 526 MDA 2009, at 23 (emphasis added); Karanicolas, 836 A.2d at 944 (same) (emphasis added). Neither of these cases held that such petitions are considered "first" in terms of previous litigation and/or waiver of the claims presented.
We also conclude that Appellant's reliance on Barnett is misplaced, as that case is procedurally distinct. There, Barnett appealed from his judgment of sentence, but because his counsel filed a deficient brief with this Court, we dismissed Barnett's appeal without reaching the merits of his claims. Barnett, 25 A.3d at 372-73. Barnett then filed a PCRA petition presenting several claims of trial counsel's ineffectiveness and, at the same time, seeking the restoration of his direct appeal rights nunc pro tunc. Id. at 373. Ultimately, Barnett's direct appeal rights were reinstated, but the PCRA court denied his trial counsel ineffectiveness claims. Id.
Barnett then filed a nunc pro tunc appeal from his judgment of sentence. Therein, he raised only the trial counsel ineffectiveness claims that were denied by the PCRA court. This Court held that we could not review Barnett's "ineffective assistance of counsel claims on direct appeal absent an 'express, knowing and voluntary waiver of PCRA review.'" Id. at 377. However - pertinent to the instant case - we indicated that Barnett could raise those same claims in a new PCRA petition after his judgment of sentence became final. Id. We also noted that the PCRA court could dispose of those issues "based on the previously-established record." Id.
Our Supreme Court subsequently vacated this holding in Barnett and remanded for further proceedings consistent with its decision in Commonwealth v. Holmes, 79 A.3d 562, 577-78 (Pa. 2013) (holding that a trial court may address claim(s) of ineffectiveness on direct appeal where they are "both meritorious and apparent from the record so that immediate consideration and relief is warranted," or where the appellant's request for review of "prolix" ineffectiveness claims is "accompanied by a knowing, voluntary, and express waiver of PCRA review").
As Barnett makes clear, a PCRA petitioner may file a "dual" petition seeking both the restoration of his direct appeal rights, as well as other relief based on substantive collateral claims, such as ineffective assistance of trial counsel. See also Miller, 868 A.2d 579 (stating that petitioner sought both the reinstatement of his direct appeal rights, as well as a new trial based on counsel's ineffectiveness); Commonwealth v. Pate, 617 A.2d 754, 757 (Pa. Super. 1992) (same); Commonwealth v. Hoyman, 561 A.2d 756, 757 (Pa. Super. 1989) (same). Barnett also indicates that under these circumstances, if the PCRA court ultimately reinstates the petitioner's direct appeal rights, the petitioner may file a new PCRA petition after his judgment of sentence becomes final and raise the same substantive collateral claims he presented in the initial "dual" petition. See Barnett, 25 A.3d at 377. This is so because "[w]hen a PCRA court grants a request for reinstatement of direct appeal rights nunc pro tunc, it may address, but not 'reach' the merits of any remaining claims." Miller, 868 A.2d at 580 (citation omitted). Thus, the substantive claims for relief raised in the initial "dual" PCRA petition would not be barred as "previously litigated" in a petition filed after the nunc pro tunc direct appeal. See 42 Pa.C.S. § 9544(a) (emphasis added) (precluding as previously litigated claims that were "raised and decided" in a prior PCRA proceeding).
Here, however, Appellant's initial PCRA petition filed in 2007 raised only substantive collateral claims; unlike the petitioners in Barnett and the other cases cited, supra, Appellant did not seek the restoration of his direct appeal rights nunc pro tunc. Accordingly, the PCRA court's June 21, 2007 order denying that petition was a final decision on the merits of those claims. Consequently, Appellant is barred from reasserting these previously litigated issues in his current petition and on appeal.
We also note that to the extent Appellant's current claims may encompass novel arguments not specifically raised in his initial petition, those assertions would be waived under section 9544(b) ("[A]n issue is waived if the petitioner could have raised it but failed to do so . in a prior state post[]conviction proceeding.").
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However, Appellant's third and fourth issues are not barred as previously litigated. In these two claims, which we will address together, Appellant contends that the PCRA court erred by denying his request for the reinstatement of his right to appeal from the June 21, 2007 order denying his initial PCRA petition, as Appellant's PCRA counsel, Attorney Kalasnik, was ineffective for failing to file a notice of appeal from that order. This assertion was first raised in Appellant's April 30, 2008 pro se PCRA petition, wherein he also sought the restoration of his direct appeal rights nunc pro tunc. Because the PCRA court ultimately reinstated Appellant's direct appeal rights, its denial of his PCRA counsel ineffectiveness claim (and the concomitant denial of Appellant's right to appeal from the June 21, 2007 order denying his initial PCRA petition) was merely advisory. Thus, Appellant's third and fourth issues were not "previously litigated" as that term is defined in the PCRA. Accordingly, we will address these two claims herein.
Initially, we note that our standard of review regarding an order denying post conviction relief under the PCRA is whether the determination of the court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
Here, Appellant maintains that his right to appeal from the June 21, 2007 order denying his initial PCRA petition should have been reinstated because Attorney Kalasnik improperly ignored Appellant's directive to file an appeal and, instead, followed Appellant's wife's command not to do so. Appellant further contends that Attorney Kalasnik was ineffective because he demanded full payment of his appellate fee before he would file a notice of appeal on Appellant's behalf. Appellant argues Attorney Kalasnik should have filed the notice of appeal despite Appellant's failure to pay up front, and then sought to withdraw if Appellant did not pay his retainer fee after the appeal was initiated. Finally, Appellant claims that Attorney Kalasnik failed to fully consult with him regarding the appeal process, and also erred by not making "a reasonable attempt to ascertain [Appellant's] wishes regarding an appeal from the denial of the PCRA." Appellant's Brief at 53-54 (emphasis omitted).
In rejecting these arguments, the PCRA court properly relied on the record established during the disposition of Appellant's April 30, 2008 petition, wherein these claims of Attorney Kalasnik's ineffective representation were first presented. See Barnett, 25 A.3d at 377. Namely, during the December 19, 2008 PCRA hearing, the following evidence was presented. First, Appellant testified that he was unhappy with the PCRA court's denial of his initial PCRA petition, and claimed that he conveyed his concerns to Attorney Kalasnik. N.T., 12/19/08, at 18. Appellant stated that he directed Attorney Kalasnik to file an appeal on his behalf. Id. However, Attorney Kalasnik did not comply, which Appellant believed was due to the following facts:
[Appellant:] Apparently, he had a conversation with my wife about it and he basically talked her out of it and told her there was less than a 50 percent chance [of success on appeal], which I don't know how he would possibly know that."Id. at 19. Appellant clarified that his wife, Mrs. Evans, did not have power of attorney to make legal decisions on Appellant's behalf. Id. In fact, Appellant testified that he specifically refused to provide Mrs. Evans with a power of attorney, and told Attorney Kalasnik that he "was in control of the case and [counsel] needed to come to [Appellant] for that type of decision." Id. Nevertheless, Appellant claimed that Attorney Kalasnik acted on the directive of Mrs. Evans and did not file an appeal from the June 21, 2007 order.
Mrs. Evans also took the stand at the PCRA hearing. She corroborated Appellant's claim that she told Attorney Kalasnik not to file an appeal after Attorney Kalasnik stated that Appellant "would have less than 50 percent chance of winning." Id. at 23. Mrs. Evans further explained:
[Appellant's Counsel:] And the conversation where you told [Attorney] Kalasnik not to appeal?Id. at 23-24.
[Mrs. Evans:] He talked to us about it, and I remember it was in prison. He came and spoke with us together at prison, and then afterward I spoke with [Attorney] Kalasnik separately and I told him that [Appellant] and I decided not to do the PCRA, more or less making the decision myself because [Appellant] at that time was in prison.
[Appellant's Counsel:] So it was in this subsequent conversation with [Attorney] Kalasnik over the phone that you told him not to appeal?
[Mrs. Evans:] Correct.
[Appellant's Counsel:] Was that [Appellant's] desire not to appeal?
[Mrs. Evans:] No, it was not, and I regret that to this day and will forever regret it.
Finally, Attorney Kalasnik testified at the PCRA hearing. He explained that he "initially sent [Appellant] a letter on June 27, 2007, basically recapping [the PCRA court's] [o]rder denying the PCRA petition[]" and "explain[ing] in detail [Appellant's] rights as to an appeal, ... the fee required, ...[and] the pro's and con's" of filing an appeal. Id. at 33. Attorney Kalasnik also repeatedly stated that he "encouraged [Appellant] to file an appeal[]" not only in this letter, but at a subsequent meeting with Appellant and Mrs. Evans at the prison on July 2, 2007. Id. at 33, 34, 35, 36, 38.
Attorney Kalasnik further testified that he sent Appellant a letter following their meeting at the prison (and approximately two weeks after the PCRA petition was denied). Id. at 38. Attorney Kalasnik had that letter in his possession at the PCRA hearing, and summarized it for the court. Id. at 38-40. Pertinent to the issue herein, Attorney Kalasnik's letter informed Appellant of the deadline for filing an appeal from the PCRA court's June 21, 2007 order; Attorney Kalasnik's fee for representing Appellant on appeal; the repercussions if Appellant decided not to appeal; and that Attorney Kalasnik believed Appellant had "legitimate grounds for filing an appeal[]" and that his case was "worth appealing." Id. at 38-40. Most notably, Attorney Kalasnik's letter concluded by stating:
If you have any other questions or concerns, please contact me. Otherwise, I will simply wait to hear from you further regarding how you would like to proceed.Id. at 40 (emphasis added). Attorney Kalasnik stated that he did not receive a response from Appellant or Mrs. Evans until after the appeal deadline had passed, at which time he received "a note from [Mrs. Evans] reiterating that they had jointly decided not to file an appeal.... Id. at 40-41 (emphasis added). Attorney Kalasnik also spoke to Appellant after the opportunity to appeal had expired, and Appellant told him that he had decided not to file the appeal "as a result of [Mrs. Evans'] influence." Id. at 41 (emphasis added). In regard to Appellant's claim that Attorney Kalasnik improperly allowed Mrs. Evans' to make the decision on whether to file an appeal, Attorney Kalasnik stated that he "would not have allowed that to occur." Id. at 42. He elaborated that he "always went to [Appellant] to make a final decision on any issue." Id.
Attorney Kalasnik also testified that he continued to represent Appellant after he was released from prison, and "assisted [Appellant] on some issues relative to his probation conditions.. " Id. at 42. Appellant never complained about Attorney Kalasnik's representation or failure to file an appeal from the denial of his initial PCRA petition until the spring of 2008 "when [he and Appellant] ran into some road blocks getting relief from some of the probation conditions." Id. at 43. Indeed, Attorney Kalasnik stated that he had received "several letters . from both [Appellant] and [Mrs.] Evans[]" stating "that they were grateful for [his] representation...." Id.
In the PCRA court's March 9, 2009 order and opinion denying Appellant's April 30, 2008 petition (which we again reiterate is merely advisory), the court stated that it found Attorney Kalasnik's aforementioned testimony credible, and that "Attorney Kalasnik's actions sufficiently protected [Appellant's] appeal rights." PCRA Court Opinion, 3/9/09, at 5. When Appellant presented the same claims of Attorney Kalasnik's ineffectiveness in his current petition, the PCRA court again rejected those assertions, emphasizing the communications between Attorney Kalasnik, Appellant, and Mrs. Evans in the weeks between the court's denial of Appellant's petition and the deadline for filing an appeal. PCRA Court Opinion II, 12/11/13, at 3. The court also stressed Attorney Kalasnik's testimony that "[n]either [Appellant] nor his wife contacted [PCRA] counsel as to the decision to file this appeal." Id. The court then stated that it found "counsel's testimony credible, specifically with regard to his claim that he informed his client, as well as [Appellant's] wife[,] that he had a right to file an appeal, and [Appellant] chose not to respond." Id. Clearly, the court believed Attorney Kalasnik's testimony that he did not file an appeal on Appellant's behalf because Appellant never directed him to do so. This testimony contradicts Appellant's claims that counsel did not file the appeal at Mrs. Evans' directive, or that he did not do so because Appellant had failed to pay counsel's fee.
Appellant additionally argues, however, that even if he did not expressly direct Attorney Kalasnik to file an appeal, Attorney Kalasnik was still ineffective for not doing so because Appellant never told him not to appeal. Appellant further avers that "Attorney Kalasnik was obligated to fully consult with [Appellant] and discover his wishes before the expiration of the deadline." Id.
Based on Attorney Kalasnik's testimony, we conclude that he did "fully consult" with Appellant regarding Appellant's desire to file an appeal and the repercussions of that decision. Moreover, we reject Appellant's argument that Attorney Kalasnik was ineffective for not filing an appeal because Appellant never told him not to do so. It is well-established that when a petitioner seeks to demonstrate that his trial counsel ineffectively failed to file an appeal, he must prove that he requested that appeal, and that counsel disregarded his request. See Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999) ("[B]efore a court will find ineffectiveness of trial counsel for failing to file a direct appeal, Appellant must prove that he requested an appeal and that counsel disregarded this request.") (citing Commonwealth v. Lehr, 583 A.2d 1234, 1235 (Pa. Super. 1990)). Here, Attorney Kalasnik testified that he informed Appellant that he was not going to file a notice of appeal until he received word from Appellant to do so, and that Appellant never responded. The PCRA court believed Attorney Kalasnik's testimony. Because that finding is supported by the record, we will not disturb it on appeal. Santiago, 855 A.2d at 694. Consequently, Attorney Kalasnik was not ineffective for failing to file a notice of appeal from the PCRA court's June 21, 2007 order, and the PCRA court did not err in failing to reinstate Appellant's right to appeal therefrom.
Order affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary