Opinion
J-S77037-18 No. 1733 EDA 2018
03-21-2019
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DAVID M. MANILLA, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the PCRA Order May 18, 2018 in the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000790-2011 BEFORE: OTT, J., DUBOW, J. and STRASSBURGER, J. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
David M. Manilla (Appellant) appeals from the order entered on May 18, 2018, which denied his second amended petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
Appellant was sentenced to 10 to 25 years of incarceration after he pleaded guilty to involuntary manslaughter, two counts of persons not to possess firearm, and various hunting-related misdemeanors and summary offenses.
The within convictions arose from the shooting death of Barry Groh on November 29, 2010, the opening day of hunting season. He was shot with a Remington .30-06 high-powered rifle by Appellant, a convicted felon who was not permitted to possess a firearm. The rifle had a range of almost two miles and was not legally sanctioned for hunting. Appellant admitted that he accidentally shot [Groh]. Instead of procuring help for [] Groh, Appellant and his companions attempted to cover up Appellant's involvement.Commonwealth v. Manilla , 53 A.3d 936 (Pa. Super. 2012) (unpublished memorandum at 1-2).
On May 24, 2011, Appellant pleaded guilty to the aforementioned charges. On July 8, 2011, after a lengthy hearing, the trial court sentenced Appellant to an aggregate term of 10 to 25 years of incarceration. Appellant filed a direct appeal to this Court, and on June 21, 2012, this Court affirmed Appellant's judgment of sentence. Manilla , supra. Appellant filed a petition for allowance of appeal, which was denied by our Supreme Court on April 30, 2013. Commonwealth v. Manilla , 65 A.3d 413 (Pa. 2013).
Specifically, Appellant was sentenced to 2½ to 5 years of incarceration on the involuntary manslaughter conviction, 5 to 10 years on the person not to possess conviction involving the high-powered rifle used to shoot Groh, and 2½ to 10 years on the possession of a shotgun conviction, with all sentences to be served consecutively.
On April 29, 2014, Appellant timely filed a counseled PCRA petition. On March 3, 2017, Appellant, through new counsel, filed a motion to amend his PCRA petition, which the court granted on April 12, 2017. On May 31, 2017, Appellant filed a second motion to amend his petition. The PCRA court held evidentiary hearings on June 8 and 19, 2017, at which Appellant testified and presented the testimony of his mother and the two attorneys who had represented him at his sentencing hearing. Thereafter, the PCRA court directed the parties to file briefs, they complied, and the PCRA court filed a memorandum opinion and order dismissing Appellant's second amended PCRA petition on May 18, 2018. Appellant timely filed a notice of appeal, and both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Other than entries of appearance by Appellant's counsel, there was no docket activity in the nearly three years between the filing of Appellant's first PCRA petition and his motion to amend. Our Supreme Court has made clear that "[t]he PCRA court [has] the ability and responsibility to manage its docket and caseload and thus has an essential role in ensuring the timely resolution of PCRA matters." Commonwealth v. Renchenski , 52 A.3d 251, 260 (Pa. 2012).
At the June 8, 2017 PCRA hearing, counsel for the Commonwealth stated, and the PCRA court agreed, that the second motion to amend was granted on June 5, 2017, but no such order appears in the certified record or docket entries. N.T., 6/8/2017, at 6-7.
On appeal, Appellant presents one claim for our review: "was counsel ineffective for devising a sentencing strategy that deprived [Appellant of] an opportunity to explain certain facts that aggravated the sentence imposed." Appellant's Brief at 3. Specifically, Appellant argues that counsel was ineffective for failing to recommend to Appellant that he explain to the trial court at the sentencing hearing (1) the presence of mud in the rifle; (2) Appellant's transfer of his property to his mother within days of the shooting; and (3) Appellant's failure to contact emergency services immediately after the shooting. Id. at 21. Appellant further argues counsel was ineffective for failing to recommend that he "allow the court and the Commonwealth to ask him questions, rather than recommending that he allocute" at the sentencing hearing. Id. He argues that but for counsel's ineffectiveness, he would have received a more lenient sentence. Id. at 20-28.
We review Appellant's claim according to the following. "Our standard of review of a [] 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)).
Following a review of the certified record and the briefs for the parties, we conclude that the opinion of the Honorable Brian T. McGuffin, which incorporates fully the opinion of the Honorable Albert J. Cepparulo, thoroughly addresses Appellant's issue and argument and applies the correct law to facts that are supported by the record. We discern no error. Therefore, we adopt the PCRA court's opinions of September 12, 2018 and May 18, 2018, as our own, and affirm the dismissal of Appellant's second amended PCRA petition based upon the reasons stated therein. See PCRA Court Opinion, 9/12/2018, at 7-11 (pagination supplied) (concluding that Appellant's ineffective assistance of counsel claim was without merit where it found Appellant's proffered explanations for his conduct not credible, Appellant's attorneys had a reasonable basis for their actions, and Appellant failed to demonstrate that he was prejudiced); PCRA Court Opinion, 5/18/2018, at 10-24 (explaining why it found Appellant's testimony not credible and deceptive and recognizing that Appellant had been a criminal defense attorney for 19 years; concluding that counsel acted reasonably where counsel testified credibly that if Appellant had explained his conduct at the sentencing hearing, counsel believed it would have undermined Appellant's taking responsibility for his actions, and may have impacted negatively Appellant's then-pending federal criminal charges; and concluding that Appellant had not proven he was prejudiced where there was no evidence he would have been sentenced differently but for counsel's alleged failures).
After Judge Cepparulo's retirement from the court, this case was assigned to Judge McGuffin. PCRA Opinion, 9/12/2018, at 6 (pagination supplied).
The parties shall attach a copy of the PCRA court's September 12, 2018 and May 18, 2018 opinions to this memorandum in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/21/19
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