Opinion
J. S21033/18 No. 1570 WDA 2017
06-26-2018
COMMONWEALTH OF PENNSYLVANIA v. MITCHELL CRAIG LITZ, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order, September 5, 2017, in the Court of Common Pleas of Erie County
Criminal Division at No. CP-25-CR-0001495-2015 BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Mitchell Craig Litz appeals pro se from the September 5, 2017 order dismissing his petition for relief filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we quash this appeal.
Appellant purports to appeal from the March 1, 2016 judgment of sentence, but the appeal properly lies from the order dismissing his PCRA petition. We have amended the caption accordingly.
The Commonwealth filed a brief indicating that it is relying on the reasoning set forth in the PCRA court's November 9, 2017 opinion, which incorporates its Pa.R.Crim.P. 907 notice. ( See Commonwealth's brief at 1.)
The PCRA court summarized the relevant facts and procedural history of this case as follows:
This case arises out of a near fatal car/motorcycle accident on July 18, 2014. [Appellant] was driving himself and a twelve[-]year-old passenger
southbound on Route 19 when he attempted to perform a U-turn on a steep hill and a blind curve. The victim, ("Mr. Peters") was driving his motorcycle northbound over the hill and struck [appellant's] car. [Appellant's] 12[-]year-old passenger was injured and crying. [Appellant] told her he was going to the bathroom and that he'd be right back. He left the crash scene on foot. The girl began screaming. [Appellant] returned to the car, told her she would be fine, that people were coming to take care of her. He grabbed a twelve pack of beer and five loose cans of beer from the car and absconded into the woods, leaving the girl in the car and the severely injured motorcyclist on the road.
In the intervening hours, [appellant] periodically called the State Police and suggested he was at a certain location to turn himself in, but when the police arrived he was not there. Finally, two and a half hours after the crash, [appellant] walked out of the woods and was arrested. The police brought [appellant] to the hospital where two blood draws were performed. The first draw indicated a .299 blood alcohol content ("BAC") and the second indicated a .27 BAC.
Mr. Peters, the motorcyclist, sustained a broken wrist, broken pelvis, concussion, spinal fracture, broken jaw, and brain injury. Mr. Peters, a 45[-]year-old married father of a five[-]year-old son and two teenage step-sons, testified at the sentencing hearing that his injuries caused him to lose his job and he was still unemployed. He has undergone facial reconstruction surgeries, including plates inserted into his face. His appearance shortly after the accident was so horrific that his (then) three-year[-]old son refused to go near him or touch him for months after the accident. Mr. Peters was in the hospital for a month and a half and has unpaid medical bills. He lost his sense of smell and cannot tie his own shoes.
This was [appellant's] 3rd DUI in 10 years and his sixth lifetime DUI. In October of 1979, [appellant]
was convicted of DUI, involuntary manslaughter, involving the death of one of [appellant's] passengers. [Appellant] also had prior speeding violation convictions, a driving under a suspended license conviction in 1997, and a driving under a suspended license, DUI conviction in 2005.
On January 6, 2016, [appellant] pled guilty to aggravated assault by vehicle while DUI (Count One), accidents involving death or personal injury (Count Three), DUI: Highest Rate of Alcohol (Count Six), and driving while operating privileges are suspended or revoked (Count Nine).[] In exchange the Commonwealth nolle prossed the remaining ten additional counts. [Appellant] was informed during the plea colloquy that he faced a maximum aggregate sentence of up to 22 years' incarceration. [Appellant] did not request to withdraw his plea.[]
Almost two months later, on March 1, 2016, [appellant] was sentenced to 5 to 10 years' incarceration at Count One and a consecutive term of 3½ to 7 years' incarceration at Count Three. Count Six merged for sentencing purposes. [Appellant's] aggregate maximum sentence was 17 years' incarceration. [Appellant] filed a timely Motion for Modification of Sentence, which this Court denied on March 11, 2016.
[Appellant] filed a timely Notice of Appeal on April 7, 2016. In response thereto, this Court entered a Rule 1925(b) Order, directing [appellant] to file a Concise Statement of Matters Complained of on Appeal. [Appellant] timely complied on June 2, 2016, and filed a Concise Statement claiming that his sentence was manifestly excessive, clearly unreasonable and inconsistent with the objectives of the sentencing code. The Pennsylvania Superior Court determined that "the trial court properly
considered the [42 Pa. C.S.A.] § 9721 factors and the mitigating factors in sentencing [appellant] outside the guidelines and, therefore, did not abuse its discretion." [ See Commonwealth v. Litz , 169 A.3d 1180 (Pa.Super. 2017) (unpublished memorandum at *4).]PCRA court opinion, 11/9/17 at 1, incorporating Rule 907 notice, 8/3/17 at 1-4 (citations to notes of testimony omitted).
[Appellant did not file a petition for allowance of appeal with our supreme court.] On June 6, 2017, [appellant] filed a timely [ pro se ] PCRA [petition]. As this is [appellant's] first PCRA claim, counsel[] was appointed. On July 6, 2017, [PCRA] counsel filed a Supplement to Motion for [PCRA].
75 Pa.C.S.A. §§ 3735.1(a), 3742(a), 3802(c), 1543(a), respectively.
Appellant was represented during his guilty plea by Eric Vaughn Hackwelder, Esq. ("plea counsel").
Appellant was represented during his PCRA proceedings by William John Hathaway, Esq. ("PCRA counsel").
On August 3, 2017, the PCRA court provided appellant with notice of its intention to dismiss his petition without a hearing, pursuant to Pa.R.Crim.P. 907(1). Thereafter, on September 5, 2017, the PCRA court dismissed appellant's petition without an evidentiary hearing. While still represented by PCRA counsel, appellant timely filed his pro se notice of appeal on September 22, 2017. Thereafter, on October 5 and 20, 2017, appellant filed motions requesting to proceed pro se and seeking the removal of appointed counsel. Following a Grazier hearing on November 13, 2017, appellant's request to proceed pro se was granted. The PCRA court subsequently entered an order on March 9, 2018, indicating that it conducted a second Grazier hearing on that date "[s]ince [appellant] was not afforded hearing impaired accommodations at this prior pro se colloquy [on November 13, 2017]." (PCRA court order, 3/9/18.) The PCRA court again concluded that appellant "knowingly and intelligently waive[d] his right to legal counsel on appeal" and granted his request to proceed pro se .
Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998).
The record reflects that appellant timely complied with the PCRA court's order directing him to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b). The PCRA court, in turn, filed its Pa.R.A.P. 1925(a) opinion on November 9, 2017, incorporating the rationale set forth in its prior August 3, 2017 Rule 907 notice.
Preliminarily, we recognize that pro se filings while represented by counsel constitute hybrid representation, which are generally not allowed. Indeed, such filings have been described as legal nullities by the courts in this Commonwealth. See Commonwealth v. Ali , 10 A.3d 282, 293 (Pa. 2010). However, our supreme court has held that a pro se notice of appeal filed by an appellant who is still represented by counsel presents special circumstances and is not automatically void. In Commonwealth v. Cooper , 27 A.3d 994 (Pa. 2011), our supreme court reasoned that a pro se notice of appeal, filed while Cooper was still represented by counsel, was not automatically a legal nullity, but was simply "premature." Id. at 1007. The Cooper court concluded that a panel of this court erred in declining to address the merits of a pro se appeal after counsel's subsequent appeal was dismissed as duplicative. Id.; see also Commonwealth v. Wilson , 67 A.3d 736, 738 (Pa. 2013) (explaining that "[Wilson] filed a pro se notice of appeal; it is not clear why his court-appointed counsel did not file the notice," and proceeding to review the merits of Wilson's case without further discussion). Thus, we decline to treat appellant's pro se notice of appeal as a nullity and dismiss it for want of a counselled notice of appeal.
Proper appellate review of a PCRA court's dismissal of a PCRA petition is limited to the examination of "whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Miller , 102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Lawson , 90 A.3d 1, 4 (Pa.Super. 2014) (citations omitted). "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. Hickman , 799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).
Here, appellant's pro se brief does not contain a "Statement of Questions Involved" in violation of Pa.R.A.P. 2116(a), but as best we can discern from his brief and his pro se PCRA petition, appellant avers that his plea counsel rendered ineffective assistance of counsel by inducing him to enter an unknowing and involuntary guilty plea. (Appellant's brief at ¶ 7d.) Appellant further maintains that plea counsel disregarded his request for a hearing-impaired guilty plea hearing and misinformed him that he would be sentenced under a prior record score of 3, rather than a prior record score of 5. ( Id. at ¶¶ 7a, 7e; see also pro se PCRA petition, 6/8/17 at 3, § 5A-B).
Generally, parties to an appeal are required to submit briefs in conformity, in all material respects, with the requirements of the Rules of Appellate Procedure, as nearly as the circumstances of the particular case will admit. Pa.R.A.P. 2101. "This Court may quash or dismiss an appeal if the appellant fails to conform to the requirements set forth in the Pennsylvania Rules of Appellate Procedure." Commonwealth v. Lyons , 833 A.2d 245, 252 (Pa.Super. 2003) (citations omitted), appeal denied , 879 A.2d 782 (Pa. 2005).
Upon review, we find that appellant's brief fails in numerous respects to conform to the Pennsylvania Rules of Appellate Procedure. Specifically, we observe that the brief contains no statement of jurisdiction, no specification of the order or determination sought to be reviewed, no statement of the scope or standard of review, no statement of the case, and no summary of the argument. Pa.R.A.P. 2111(a)(1)-(3), (5)-(6). Although appellant raises multiple points of contention in paragraph 7 of his brief, as noted, the brief does not set forth a specific statement of the questions involved. Id. at 2111(a)(4); Pa.R.A.P. 2116(a). Appellant's failure to include a statement of the questions involved is particularly troubling as this requirement defines the specific issues this court is being asked to review. See Pa.R.A.P. 2116(a) (stating this Rule "is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions . . ."). Moreover, appellant's brief does not properly develop any of his purported ineffectiveness claims by including a meaningful discussion of, or citation to, relevant legal authority, nor makes any mention of the three-pronged ineffectiveness of counsel test. See Pa.R.A.P. 2119(b) (compels a finding of waiver "where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review [.]"). Accordingly, we find appellant's claims are not reviewable.
To prevail on a claim of ineffective assistance of counsel under the PCRA, a petitioner must first establish that "the underlying claim has arguable merit; second, that counsel had no reasonable basis for his action or inaction; and third, that Appellant was prejudiced." Commonwealth v. Charleston , 94 A.3d 1012, 1020 (Pa.Super. 2014) (citation omitted), appeal denied , 104 A.3d 523 (Pa. 2014). "[C]ounsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant." Commonwealth v. Ousley , 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied , 30 A.3d 487 (Pa. 2011). Additionally, we note that "counsel cannot be held ineffective for failing to pursue a meritless claim[.]" Commonwealth v. Hall , 867 A.2d 619, 632 (Pa.Super. 2005), appeal denied , 895 A.2d 549 (Pa. 2006).
In reaching this decision, we note that "[a]lthough this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant[.]" Commonwealth v. Adams , 882 A.2d 496, 498 (Pa.Super. 2005) (citation omitted). "To the contrary, any person choosing to represent himself in a legal proceeding must, to a reasonable extent, assume that his lack of expertise and legal training will be his undoing." Id. Since the defects in appellant's brief are substantial and preclude this court from conducting any meaningful appellate review, we quash his appeal.
Alternatively, even if we were to reach the merits of appellant's ineffectiveness claims, we would agree with the PCRA court that they warrant no relief. The PCRA court comprehensively discussed appellant's allegations of ineffectiveness with regard to plea counsel that he raised in his pro se PCRA petition and concluded that they were meritless. ( See PCRA court Rule 907 notice, 8/3/17 at 5-10.) We find that the PCRA court's conclusions are supported by competent evidence and are clearly free of legal error. Accordingly, had appellant not waived his claims on appeal, we would adopt the reasoning set forth in the PCRA court's Rule 907 opinion as our own.
Appeal quashed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/26/2018
In light of our disposition, appellant's supplemental pro se application to supplement record and application for remand for a hearing are denied.