Opinion
J. S30028/16 No. 2334 EDA 2015
05-19-2016
COMMONWEALTH OF PENNSYLVANIA v. REGINALD MACKEY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order, June 19, 2015, in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0011993-2010 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Reginald Mackey appeals, pro se , from the June 19, 2015 order that dismissed his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 ("PCRA"). We affirm.
We note that appellant is incarcerated and acting pro se. The record reflects that the PCRA court entered its order denying appellant's PCRA petition on June 19, 2015, but that the order was not sent to appellant until June 25, 2015. Therefore, appellant was required to file his notice of appeal by Monday, July 27, 2015. See Pa.R.A.P. 108(a)(1) (day of entry of an order shall be the day the clerk of court mails or delivers copies of the order to the parties); Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days after the entry of the order from which the appeal is taken); 1 Pa.C.S.A. § 1908 (whenever the last day of the appeal period falls on a weekend or on any legal holiday, such day shall be omitted from the computation of time). Appellant dated his notice of appeal and proof of service of same, as well as related correspondence, July 22, 2015. Appellant certified in his proof of service that he sent the notice of appeal to the clerk of the trial court, as well as others, on July 22, 2015. Although the trial-court docket sheet erroneously reflects that appellant filed his notice of appeal on July 17, 2015, that notice is date-stamped as received in the trial court on July 22, 2015. We deem appellant's appeal timely filed. See also Commonwealth v. Jones , 700 A.2d 423 (Pa. 1997) (holding that when an appellant is incarcerated and acting pro se when seeking to file an appeal, justice requires that the appeal be deemed "filed" on the date appellant deposits the appeal with prison authorities and/or places it in the prison mailbox).
The PCRA court set forth the procedural history of this case as follows:
On March 16, 2012, [appellant] pled guilty to one count of first-degree robbery (18 Pa.C.S.[A.] § 3701(a)(1)(ii)) and one count of conspiracy to commit robbery (18 Pa.C.S.[A.] §§ 903 & 3701(a)(1)(ii)[)]. Sentencing was deferred so that a pre-sentence report could be prepared. [Appellant] was initially represented at the guilty plea hearing by Varghese Kurian, Esquire, though [appellant] elected to proceed pro se part way through the hearing. On May 8, 2012, [appellant] filed a pro se Motion to Withdraw Guilty Plea. On May 17, 2012, the date of his scheduled sentencing hearing, [appellant] continued to elect to proceed pro se. After conducting a colloquy, the Court permitted [appellant] to do so, and appointed Mr. Kurian as standby counsel. The Court denied [appellant's] motion to withdraw his guilty plea and imposed the negotiated aggregate sentence of 10 to 20 years['] incarceration.
Thereafter, [appellant] had a change of heart about proceeding pro se , and at his request, Mr. Kurian was re-appointed as [appellant's] counsel. Mr. Kurian filed post-sentence motions on [appellant's] behalf, which the Court denied on September 12, 2012. Mr. Varghese [Kurian] then withdrew from representation and John Belli, Esquire, was appointed to represent [appellant] on appeal.
On February 28, 2013, [appellant] filed a praecipe with the Superior Court to discontinue his appeal. [Appellant] then filed a pro se petition under the [PCRA] on October 28, 2013 (" Pro Se
Petition"). [Appellant] filed a Petition to Remove PCRA Judge on January 31, 2014 ("Recusal Petition"). James R. Lloyd, Esquire was appointed to represent [appellant] on May 16, 2014.PCRA court corrected opinion, 11/5/15 at 1-3.
On March 6, 2015, pursuant to Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988), Mr. Lloyd filed a letter stating there was no merit to [appellant's] claims for collateral relief and requested permission to withdraw. See Finley Letter of James R. Lloyd, filed 3/6/15 (" Finley Letter"). On April 1, 2015, [appellant] filed an Objection to Petition to Withdraw as Counsel in the Above Captioned Matter ("Withdrawal Objection"). On April 2, 2015, [appellant] filed a pro se Amended Petition for Relief Under the [PCRA] (" Pro Se Amended Petition"). On May 21, 2015, Mr. Lloyd filed a Supplemental Finley Letter. See Supplemental Finley Letter of James R. Lloyd, filed 5/21/15 ("Supplemental Finley Letter["]). Also on May 21, 2015, the Court issued notice pursuant to Pa.R.Crim.P. 907 ("907 Notice") of its intent to dismiss [appellant's] PCRA Petition without an evidentiary hearing. [Appellant] filed a Response to Dismissal of PCRA Petition ("907 Response") on May 28, 2015. On June 19, 2015, the Court formally dismissed [appellant's] PCRA Petition and granted Mr. Lloyd's motion to withdraw his appearance.
[Appellant] has now appealed pro se from the Court's dismissal of his PCRA Petition. . . .
The record reflects that the PCRA court filed its opinion on October 23, 2015, but erroneously dated that opinion October 23, 2010. As a result, on November 5, 2015, the PCRA court filed a corrected opinion that merely remedied this typographical error.
Appellant raises the following issues for our review:
[1]. The PCRA Court Erred when it denied Appellant's Claim that the Honorable Court
Erred and Committed an Error of Law when the Court tainted the Plea Agreement Negotiation Process by interjecting in Plea discussions, Actively Persuading the District Attorney and Trial Attorney in what direction to take to negotiate a Plea Agreement the Appellant would Plea [sic] Guilty to during a [sic] Open Court [Conference].
[2]. The PCRA Court Erred when it denied Appellant's Claim that the Honorable Court Erred and Committed an Error of Law when the Court tainted the Plea Agreement Negotiation Process by Actively Persuading, Advising, Threatening, Placing the Appellant under duress to take the Commonwealth's Offered Plea Agreement Proposal.
[3]. The PCRA Court Erred when it denied Appellant's Claim that Attorney Varghese Kurian was Ineffective Assistance [sic] of Counsel when Attorney Kurian participated in Plea Bargaining discussions with the Court during a [sic] Open Court Conference with the District Attorney.
[4]. The PCRA Court Erred when it denied Appellant's Claim that Attorney Varghese Kurian was ineffective when he failed to intervene or object, Preserve the Record when the Court began to Actively Advise, Persuade, Threatening the Appellant, Placing the Appellant under duress to take the Commonwealth's Offered Plea Agreement Proposal.
[5]. The PCRA Court Erred when it denied Appellant's Claim that the Honorable Court Erred and Committed an Error of Law by denying Appellant's Pre-Sentencing Request to Withdraw his Guilty Plea because the law is clear that such a request should be liberally granted where, as here[,] Appellant stated to the Court that he was Innocent and was
coerced into Entering a Plea of guilty which was Unlawfully induced by the Court by way of [threats] if Appellant did not accept Commonwealth's Plea Agreement Proposal.
[6]. The PCRA Court Erred when it denied Appellant's Claim that the Honorable Court Erred and Committed an Error of Law when denying Appellant's Pre-Sentencing Request to Withdraw his Guilty Plea when the Commonwealth failed to give Evidence to show that the Commonwealth would be Substantial [sic] Prejudice if Appellant was allowed to Withdraw his Guilty Plea.
[7]. The PCRA Court Erred when it denied Appellant's Claim that the District Attorney violated the law and Appellant's Constitutional Rights to a Fair Hearing and Fair Trial when the District Attorney gave a False Statement to the Court, [t]he Court relied and acted upon that statement and used the statement from the District Attorney as the bases in their decision to Deny Appellant's Motion to Withdraw his Guilty Plea.
[8]. The PCRA Court Erred when it denied Appellant's Claim that the District Attorney [v]iolated the law and Appellant's Constitutional Rights to a Fair Trial and Fair Hearing when the District Attorney displayed a form of Prosecutorial Misconduct, and Prejudicial Misconduct when [sic] gave (stated) a False Statement to the Court which caused the Court to act, Relied upon that statement as the Courts [sic] Reasoning and Bases to deny Appellant's Motion to Withdraw his Guilty Plea.
[9]. The PCRA Court Erred when it denied Appellant's Claim that the Honorable Court Erred when it denied Appellant's Claim that the Court induced the Appellant into [an] Unlawful Plea when the Court denied Appellant's Request for a Continuance so that he could
prepare to represent himself at trial by reviewing the Commonwealth's Discovery Package that was going to be used at trial by the Commonwealth.
[10]. The PCRA Court Erred when it denied Appellant's Claim that PCRA Counsel was Ineffective when he failed to address all claims in Appellant's PCRA Petition, Supplemental PCRA Petition tagged as Exhibit A, and Amended Petition.
[11]. The PCRA Court Erred and Commit [sic] a [sic] Error of Law when the PCRA Court failed to Recuse (Remove) Judge Bronson from PCRA Proceedings to guarantee Appellant a [sic] Impartial Appeal Process.
[12]. The PCRA Court Erred when it denied Appellant's Claim that PCRA Counsel was ineffective when the PCRA Counsel filed a no-merit letter stating Appellant failed to state any claims of arguable merit when the record of the Guilty Plea Volume 1, Transcripts, March 16, 2012 clearly supports Appellant's claims that the trial Court did interact in Plea Bargaining Negotiations, Trial Attorney was Ineffective. The record also shows from the sentencing Volume 1, Transcript's [sic], dated May 17, 2012 claim the District Attorney gave a False Statement to the Court to establish Substantial Prejudice. The Court denied Appellant's Constitutional Rights to a Fair Hearing and a Fair Trial when it used, Relied on the False statement made by the District Attorney as the bases to Deny Appellant's Motion to Withdraw his Guilty Plea. The Guilty Plea Volume 1, also supports Appellant's Claim the Court Induced him into a [sic] Unlawful Plea when the Court denied Appellant [sic] Continuance to Review discovery to build a defense.
[13]. The PCRA Court Erred when it denied Appellant's Claim that Direct Appeal Counsel John Belli, coerced Appellant to Withdraw his Direct Appeal by threatening Appellant through a letter, stating to Appellant that if Appellant's Direct Appeal was sucessful [sic], Appellant will be tried and Convicted and sentenced to a period of incarceration far greater than what Appellant received from Judge Bronson.Appellant's brief at 4-7.
[14]. The PCRA Court Erred when it denied Appellant's Claim that the Direct Appeal Counsel was ineffective when Direct Appeal Counsel failed to properly appraise [sic] the Appellant by notifying the Appellant that if Appellant withdrew his Direct Appeal, Appellant would waive all claims that were raised in the Submitted Direct Appeal.
For purposes of the PCRA, a petitioner waives an issue if petitioner could have raised it on direct appeal, but failed to do so. 42 Pa.C.S.A. § 9544(b) (issue is waived if petitioner failed to raise it but could have done so before trial, at trial, during unitary review, on appeal, or in a prior state post-conviction proceeding). Here, appellant waived the claimed errors he asserts in his first, second, fifth, sixth, seventh, eighth, and ninth issues, all of which relate to his guilty plea, because he could have raised each one of those issues on direct appeal.
Additionally, the failure to raise an issue in an ordered Rule 1925(b) statement results in waiver of that issue on appeal. Commonwealth v. Dowling , 883 A.2d 570, 578 (Pa. 2005), citing Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998). Here, the twelfth issue presented in appellant's brief on appeal was not included in the court-ordered Pa.R.A.P. 1925(b) statement filed on August 12, 2015, and is not properly before us for review.
Appellant's third, fourth, tenth, thirteen, and fourteenth issues allege various ineffectiveness of counsel claims.
In evaluating claims of ineffective assistance of counsel, we presume that counsel is effective. Commonwealth v. Rollins , 558 Pa. 532, 738 A.2d 435, 441 (Pa. 1999). To overcome this presumption, Appellant must establish three factors. First, that the underlying claim has arguable merit. See Commonwealth v. Travaglia , 541 Pa. 108, 661 A.2d 352, 356 (Pa. 1995). Second, that counsel had no reasonable basis for his action or inaction. Id. In determining whether counsel's action was reasonable, we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis. See Rollins , 738 A.2d at 441; Commonwealth v. (Charles) Pierce , 515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Finally, "Appellant must establish that he has been prejudiced by counsel's ineffectiveness; in order to meet this burden, he must show that 'but for the act or omission in question, the outcome of the proceedings would have been different.'" See Rollins , 738 A.2d at 441 (quoting Travaglia , 661 A.2d at 357). A claim of ineffectiveness may be denied by a showing that the petitioner's evidence fails to meet any of these prongs. Commonwealth v. (Michael) Pierce , 567 Pa. 186, 786 A.2d 203, 221-22 (Pa. 2001); Commonwealth v. Basemore , 560 Pa. 258, 744 A.2d 717, 738 n.23 (Pa. 2000); Commonwealth v. Albrecht , 554 Pa. 31, 720 A.2d 693, 701 (Pa. 1998) ("If it is clear that Appellant has not demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone and
the court need not first determine whether the first and second prongs have been met."). In the context of a PCRA proceeding, Appellant must establish that the ineffective assistance of counsel was of the type "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.[A.] § 9543(a)(2)(ii). See also (Michael) Pierce , 786 A.2d at 221-22; Commonwealth v. Kimball , 555 Pa. 299, 724 A.2d 326, 333 (Pa. 1999).Commonwealth v. Washington , 927 A.2d 586, 594 (Pa. 2007).
Here, appellant alleges plea counsel was ineffective for participating in plea bargain discussions and for failing to object to the court's participation at the plea hearing. Appellant further alleges that direct appeal counsel was ineffective for coercing him to withdraw his direct appeal on the ground that if appellant did not withdraw and he was tried and convicted, he would face a greater sentence than what he received as a result of his plea. Appellant also alleges that direct appeal counsel was ineffective for not informing appellant that he withdrew appellant's direct appeal. Finally, appellant alleges that PCRA counsel was ineffective for failing to address all of claims that appellant wanted counsel to address in appellant's PCRA petition.
For each ineffective assistance of counsel claim raised, appellant fails to establish that the underlying claim has arguable merit, that counsel had no reasonable basis for his action or inaction, and that appellant suffered prejudice. Although appellant states that he suffered prejudice, he fails to advance any argument as to how the outcome of the proceedings would have been different but for the claimed ineffectiveness. Therefore, appellant's ineffective assistance of counsel claims at issues 3, 4, 10, 13, and 14 necessarily fail.
Finally, in his eleventh issue, appellant claims that the PCRA court erred as a matter of law in failing to recuse itself. Appellant waives this claim because he fails to cite to any authority that supports his position and he fails to fully develop any meaningful argument. See Commonwealth v. Rompilla , 983 A.2d 1207, 1210 (Pa. 2009); Commonwealth v. Brougher , 978 A.2d 373 (Pa.Super. 2009) (claim is waived if there is no citation to authority); Commonwealth v. Spotz , 716 A.2d 580, 585 n.5 (Pa. 1998) (petitioner waives undeveloped and/or unclear claims).
While we have found waiver of most of appellant's issues on appeal, this court has carefully reviewed the record and agrees with Judge Glenn B. Bronson's discussion in his Rule 1925(a) opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/19/2016
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