Opinion
J-S17039-17 No. 980 EDA 2016
04-27-2017
COMMONWEALTH OF PENNSYLVANIA v. DANIEL R. WESLING, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order March 18, 2016 in the Court of Common Pleas of Monroe County, Criminal Division, No(s): CP-45-CR-0001697-2012 BEFORE: OLSON, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Daniel R. Wesling ("Wesling") appeals, pro se, from the Order denying his first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"), and granting Brian Gaglione, Esquire's ("Attorney Gaglione") Petition to Withdraw as counsel for Wesling. We affirm.
In its Opinion, the PCRA court set forth the relevant factual and procedural background, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 5/25/16, at 1-2.
Wesling received an aggregate prison sentence of 180 to 360 years.
On appeal, Wesling raises the following issues for our review:
1. Did the [PCRA] court err in allowing the assigned [PCRA] counsel[, Attorney Gaglione,] to withdraw before amending [Wesling's] PCRA [Petition,] both denying [Wesling] a full and
fair opportunity to present his claims[,] and violat[ing] Pa.R.Cr[im].P. 904 and 905 [and] 42 Pa.C.S.A. § 9541?Brief for Appellant at 4.
2. Was not Public Defender[,] Robin Spishock[, Esquire ("Attorney Spishock"),] ineffective at a critical stage?
3. Was [sic] not Attorney's [sic] [George Henry] Newman[, Esquire ("Attorney Newman")] (local [counsel]), [Michael] Salnick[, Esquire ("Attorney Salnick")] (pro hac vice [counsel])[,] and [Jack] Fuchs[, Esquire ("Attorney Fuchs")] (pro hac vice [counsel]) [(collectively "replacement counsel")] ineffective?
4. Was [sic] not both groups of attorney's [sic] ineffective?
5. Was [sic] not [Wesling's] [c]onstitutional rights violated when the statute of limitations had completed running in 2007[,] and [Wesling] was charged in 2009?
In reviewing the denial of a PCRA Petition, we examine whether the PCRA court's determination "is supported by the record and free of legal error." Commonwealth v. Rainey , 928 A.2d 215, 223 (Pa. 2007) (citations omitted).
In his first issue, Wesling contends that the trial court erred by permitting assigned PCRA counsel, Attorney Gaglione, to withdraw from representation. Brief for Appellant at 8. Wesling states that he spoke with Attorney Gaglione upon his appointment as counsel, but claims that Attorney Gaglione failed to discuss the case with Wesling after Attorney Gaglione had reviewed the record. Id. at 8, 9. Wesling asserts that he expected Attorney Gaglione to file an amended PCRA petition, rather than a "no merit" letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc). Brief for Appellant at 8. Wesling claims that he sent a letter to the PCRA court, expressing his intention to proceed pro se and amend his Petition, "but to no avail as [Wesling's] PCRA [Petition] was denied ...." Id. Wesling claims that Attorney Gaglione violated Pa.R.Crim.P. 904 by not responding to the PCRA court's March 18, 2016 Order, or further representing him in these proceedings. Brief for Appellant at 9. Wesling also claims that, pursuant to Pa.R.Crim.P. 905(B), the PCRA court should have permitted an amendment of Wesling's PCRA Petition if the court determined that the petition was deficient. Brief for Appellant at 9.
In its March 18, 2016 Order, the PCRA court denied Wesling's Petition, and granted Attorney Gaglione's Petition to Withdraw.
Pursuant to Turner / Finley , independent review of the record by competent counsel is required before withdrawal on collateral appeal is permitted. See Commonwealth v. Pitts , 981 A.2d 875, 876 n.1 (Pa. 2009). In Pitts , our Supreme Court explained that such independent review requires proof of
1. A "no-merit" letter by PC[R]A counsel detailing the nature and extent of his review;
2. The "no-merit" letter by PC[R]A counsel listing each issue the petitioner wished to have reviewed;
3. The PC[R]A counsel's "explanation," in the "no-merit" letter, of why the petitioner's issues were meritless;
4. The PC[R]A court conducting its own independent review of the record; and
5. The PC[R]A court agreeing with counsel that the petition was meritless.Id. (citation and brackets omitted). Further, our Court has held that the Supreme Court in Pitts did not expressly overrule the additional requirement imposed by this Court in Commonwealth v. Friend , 896 A.2d 607, 615 (Pa. Super. 2006), stating
that PCRA counsel seeking to withdraw contemporaneously forward to the petitioner a copy of the application to withdraw that includes (i) a copy of both the "no-merit" letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel.Commonwealth v. Widgins , 29 A.3d 816, 818 (Pa. Super. 2011).
Here, the PCRA court determined that, in the Turner / Finley "no merit" letter, Attorney Gaglione had described the extent of his review, identified the issues that Wesling sought to raise, and explained why the issues lacked merit. See PCRA Court Order, 3/18/16, at 1-3. The PCRA court also confirmed that Attorney Gaglione had provided a copy of the Turner / Finley "no merit" letter to Wesling. See id. at 3. The PCRA court thereafter reviewed the issues raised in the Turner / Finley "no merit" letter and, after conducting an independent review, determined that the issues Wesling sought to raise lacked merit. See id. at 1-3 (wherein the PCRA court agreed with Attorney Gaglione's assessment that the issues raised by Wesling lacked merit, and noted that Wesling had failed to file a response to the PCRA court's Pa.R.Crim.P. 907 Notice of its intent to dismiss the Petition without a hearing). Based on our independent review of the record, we conclude that the PCRA court's decision to permit Attorney Gaglione to withdraw from representation is supported by the record and free of legal error, and affirm on this basis as to Wesling's first issue. See id.
Pursuant to Friend , Attorney Gaglione was also required to provide Wesling with a statement advising him that, in the event the PCRA court permitted Attorney Gaglione to withdraw, Wesling had the right to proceed pro se, or with the assistance of privately retained counsel. See Widgins , 29 A.3d at 818. Although the PCRA court did not address this additional requirement, our independent review of the record confirms that Attorney Gaglione provided Wesling with a notice of his intention to seek permission to withdraw from representation, and advised Wesling of his rights to proceed pro se, or retain private counsel.
To the extent that Wesling attempts to raise, on appeal, an ineffectiveness claim regarding Attorney Gaglione, he failed to challenge his PCRA counsel's representation after receiving Attorney Gaglione's notice of withdrawal letter, and the Notice of the PCRA court's intent to dismiss his Petition pursuant to Pa.R.Crim.P. 907. Thus, Wesling has waived any claim that his PCRA counsel was ineffective. See Pitts , 981 A.2d at 880 n.4.
In his second issue, Wesling contends that Attorney Spishock was ineffective for (1) counseling Wesling to waive his preliminary hearing; and (2) failing to file pretrial motions. Brief for Appellant at 10. Specifically, Wesling asserts that Attorney Spishock was ineffective "for not putting in any time[-]critical motions" requesting the prosecution to fix the dates when the alleged offenses occurred with reasonable certainty, thereby preventing Wesling from raising statute of limitations or alibi defenses. Id. at 14. Wesling also claims that Attorney Spishock failed to communicate with Wesling's replacement counsel, Attorney Newman, Attorney Salnick, and Attorney Fuchs. Id. at 15. Although Wesling concedes that replacement counsel were permitted to file supplemental pretrial Motions, and to request a hearing, he argues that replacement counsel were "unable to recover from time critical omissions of [Attorney] Spishock[]." Id. at 11, 15, 16.
To succeed on an ineffectiveness claim, Wesling must demonstrate by the preponderance of the evidence that
(1) [the] underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different.Commonwealth v. Ali , 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. Commonwealth v. Martin , 5 A.3d 177, 183 (Pa. 2010). Counsel is presumed to be effective and the burden is on the appellant to prove otherwise. Commonwealth v. Hanible , 30 A.3d 426, 439 (Pa. 2011).
Notably, Wesling has not addressed, or even discussed, the appropriate legal standard for establishing the ineffectiveness of Attorney Spishock. Even if we were to conclude that Wesling's arguments had satisfied the first two prongs of the ineffectiveness test, we are persuaded by the PCRA court's reasoning that Wesling cannot satisfy the third prong of the test. In its Opinion, the PCRA court addressed Wesling's ineffectiveness claim regarding Attorney Spishock's failure to request a bill of particulars, and determined that the issue lacked merit because one of Wesling's replacement counsel, "Attorney Salnick[,] adequately raised and argued a [M]otion for a bill of particulars." See PCRA Court Opinion, 5/25/16, at 3. Additionally, in its prior Orders, the PCRA court addressed Wesling's additional ineffectiveness claims regarding Attorney Spishock, and determined that the claims lack merit. See PCRA Court Order, 3/18/16, at 1-3 (addressing Wesling's claim that Attorney Spishock was ineffective for counseling Wesling to waive his preliminary hearing); see also PCRA Court Order, 2/23/16, at 1-2 (same). We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Wesling's second issue. See PCRA Court Opinion, 5/25/16, at 3; PCRA Court Order, 3/18/16, at 1-3; PCRA Court Order, 2/23/16, at 1-2.
In his third issue, Wesling claims that replacement counsel were ineffective for failing to request a bill of particulars from the Commonwealth. Brief for Appellant at 16-17. Wesling argues that replacement counsel "failed to raise, litigate or preserve the issue of whether the Commonwealth proved the dates of the commission of the offenses beyond a reasonable doubt[,] and did not fix the date of the offenses with reasonable certainty[,]" thereby causing prejudice to Wesling. Id. at 17-18. Wesling contends that, if the Commonwealth had presented "the realistic dates" of his alleged offenses, then he would have been able to produce evidence of his innocence, including receipts and bank statements. Id. at 34.
Wesling also contends that replacement counsel were ineffective, and violated his Sixth Amendment rights, because they failed to follow Pa.R.Crim.P. 578, which requires that "all pretrial requests for relief shall be included in one omnibus motion." Brief for Appellant at 16 (citing Pa.R.Crim.P. 578). Wesling further asserts that replacement counsel "failed to preserve, raise or litigate the issue of [a] statute of limitations defense." Brief for Appellant at 34. However, these issues were not raised in Wesling's court-ordered Pa.R.A.P. Concise Statement of matters complained of on appeal. Accordingly, he failed to preserve them for our review. See Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (providing that, if an appellant is directed to file a concise statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in that statement are waived.).
Once again, Wesling has not addressed, or even discussed, the appropriate legal standard for establishing the ineffectiveness of his replacement counsel. Additionally, as noted above, the PCRA court determined that Wesling's third issue lacked merit because replacement counsel did, in fact, raise and argue a Motion for a bill of particulars. See PCRA Court Opinion, 5/25/16, at 3. We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Wesling's third issue. See id.
In his Statement of Questions Presented, Wesling framed his fourth issue as follows: "Was [sic] not both groups of attorney's [sic] ineffective?" Brief for Appellant at 4. To the extent that Wesling intended to raise additional ineffectiveness claims regarding his counsel, he has failed to provide a discussion in his appellate brief in support of his fourth issue. See Pa.R.A.P. 2119(a) (stating that the argument section of the parties' briefs "shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part - in distinctive type or in type distinctly displayed - the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent."). Moreover, in its Opinion, the PCRA court deemed this issue as too vague to be adequately addressed. See PCRA Court Opinion, 5/25/16, at 4; see also id. (wherein the PCRA court reviewed the transcript pages cited in Wesling's Concise Statement, and determined that it had found no ineffectiveness of counsel therein). Accordingly, we determine that Wesling failed to preserve this issue for our review. See Pa.R.A.P. 2119(a); see also Commonwealth v. Hansley , 24 A.3d 410, 415 (Pa. Super. 2011) (holding that this Court may find waiver where a concise statement is too vague).
To the extent that Wesling had intended to support this issue with those arguments raised in support of his third issue that we have deemed waived, see footnote 4, supra , he failed to raise those arguments before the trial court. See Lord , supra ; Pa.R.A.P. 302(a) (providing that issues not raised in the lower court are waived and cannot be raised for the first time on appeal.). Thus, we cannot consider them on appeal.
In his Statement of Questions Presented, Wesling framed his fifth issue as follows: "Was not [Wesling's c]onstitutional rights violated when the statute of limitations had completed running in 2007[,] and [Wesling] was charged in 2009?" Brief for Appellant at 4. Notably, Wesling has failed to provide a separate discussion in his appellate brief in support of his fourth issue. See Pa.R.A.P. 2119(a). However, Wesling raised this issue in his Concise Statement and addressed this issue elsewhere in his appellate brief, albeit in the discussion supporting his third issue on appeal. While Wesling is in technical violation of our Appellate Rules, we will nevertheless address his fifth issue on appeal.
Wesling indicates that he was convicted under 42 Pa.C.S.A. § 5552, which was amended in 1990 to extend the time period in which to commence prosecution for sexual offenses against minors to five years from the date the victim turned 18 years old. Brief for Appellant at 34. Wesling claims that because P.U. was born in 1981, and K.B. was born in 1984, the Commonwealth would have had until 2004 to commence prosecution for sexual offenses committed against P.U., and until 2007 to commence prosecution for sexual offenses committed against K.B. Id. Wesling argues that the Commonwealth brought charges against him in 2009, which was beyond the statute of limitations. Id. Wesling acknowledges that section 5552 was amended in 2002 to extend the time period in which to commence prosecution for sexual offenses against minors to twelve years from the date the victim turned 18 years old, but claims that the legislature did not intend the amendment to apply to crimes committed prior to its effective date. Brief for Appellant at 35, 40; see also id. at 34 (wherein Wesling asserts that the sexual offenses of which he was convicted occurred from 1990 through 2000).
Under the PCRA, an issue will be deemed waived if the petitioner could have raised it but failed to do so before trial, at trial, or on direct appeal. See 42 Pa.C.S.A. § 9544(b). As Wesling could have raised this issue before trial, at trial or in his direct appeal, we deem the issue as waived.
Even if we had not deemed this issue to be waived, we would have concluded that it lacks merit for the reasons expressed by the PCRA court in its Orders. See PCRA Court Order, 3/18/16, at 2; see also PCRA Court Order, 2/23/16, at 1-2. --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/27/2017
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