Com. v. Wolf, P. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
PAUL BENEDICT WOLF, :
:
Appellant : No. 1383 MDA 2015
Appeal from the PCRA Order August 5, 2015
In the Court of Common Pleas of York County
Criminal Division No(s): CP-67-CR-0008019-2013
CP-67-CR-0008983-2012
CP-67-CR-0008984-2012
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E. *
MEMORANDUM BY DUBOW, J.: FILED AUGUST 12, 2016
Appellant, Paul B. Wolf, appeals from the Order entered in the York
County Court of Common Pleas denying his second Petition filed under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Additionally,
Appellant’s appointed counsel, Scott A. McCabe, Esquire, has filed a Petition
to Withdraw as counsel and an accompanying 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). We
conclude that all but Appellant’s double jeopardy claim were either
previously litigated or are waived. We further conclude that, because
*
Former Justice specially assigned to the Superior Court.
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Appellant’s timely-raised double jeopardy claim pertains to the legality of his
sentence, the PCRA court erred in finding it waived. Accordingly, we affirm
the PCRA court’s Order in part, vacate the PCRA court’s Order in part, and
remand for an evidentiary hearing on Appellant’s double jeopardy claim. We
deny Attorney McCabe’s Petition to Withdraw.
The PCRA court set forth the factual and procedural history of this case
as follows:
In case CP-67-CR-8984-2012, the Appellant was charged with
Theft by Unlawful Taking and Defiant Trespass. On May 10,
2013, a jury found the Appellant not guilty. Attorney George
Margetas represented him at this trial.
Appellant then petitioned the [c]ourt to remove Attorney
Margetas as counsel. The [c]ourt agreed and appointed Attorney
Christopher Moore to represent the Appellant. In case CP-67-
CR-8983-2012, the Appellant was charged with Theft by
Unlawful Taking, Receiving Stolen Property, and Theft by
Deception. On February 21, 2014, he pled nolo contendere to
Receiving Stolen Property.
In case CP-67-CR-8019-2013, the Appellant was charged with
two (2) counts of Intimidation of a Witness under 18 Pa.C.S. §
4952(a)(1) and two (2) counts of Intimidation of a Witness
under 18 Pa.C.S. § 4952(a)(2). On February 21, 2014, he pled
nolo contendere to the first two (2) counts of Intimidation of a
Witness. Attorney Moore also represented him during this
proceeding.
[Appellant was sentenced on CR-8983-2012 and CR-8019-2013
on February 21, 2014.]
On May 21, 2014, Appellant filed a timely PCRA petition
(hereinafter “PCRA I”) on CP-67-CR-8983-2012, CP-67-CR-
8019-2013, and CP-67-CR-8008-2013, a case not at issue in this
appeal. A hearing on PCRA I was held on September 19, 2014.
The [PCRA c]ourt appointed Attorney Seamus Dubbs to
represent him at this hearing. The [PCRA c]ourt denied PCRA I.
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[Appellant did not appeal the denial of PCRA I. Rather, on]
March 16, 2015, Appellant filed a second [timely] PCRA
(hereinafter “PCRA II”). The [PCRA c]ourt appointed Attorney
Heather Reiner to represent him during [the] PCRA II hearing.
On June 12, 2015, a hearing on PCRA II was held. At that
hearing, Appellant indicated that he wished to proceed pro se.
The [PCRA c]ourt discharged Attorney Reiner and continued the
hearing until August 5, 2015. On August 5, 2015, the Appellant
proceeded pro se with the PCRA II hearing. The [PCRA c]ourt
denied PCRA II.
PCRA Court Opinion, filed 10/22/15, at 1-2.
Appellant filed a pro se Notice of Appeal on August 11, 2015. Both
Appellant and the PCRA court timely complied with Pa.R.A.P. 1925.
On January 7, 2016, Appellant, still pro se, filed a Brief with this Court.
On April 13, 2016, Appellant filed an Application for Appointment of Counsel,
which this Court granted in part.1 Order, filed 5/6/16, at 1. The trial court
appointed Attorney McCabe to represent Appellant in this appeal. Attorney
McCabe was directed to file a supplemental Appellant’s brief or a Turner-
Finley letter with this Court. Id.
On June 9, 2016, Attorney McCabe filed a Petition to Withdraw as
counsel, and an accompanying Turner/Finley no-merit letter.2 Attorney
1
In addition to requesting that we appoint counsel, Appellant specifically
requested that this Court appoint counsel from outside of York County. We
denied the request that counsel be from outside of York County.
2
Appellant’s Brief became a legal nullity upon the appointment of counsel.
See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (finding a pro se
Rule 1925(b) Statement a nullity where appellant was represented by
counsel); Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999)
(holding that “[w]e will not require courts considering PCRA petitions to
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McCabe concluded that there were no non-frivolous issues to be raised on
appeal after addressing each of the issues raised by Appellant in his pro se
Rule 1925(b) Statement. Those issues are as follows, verbatim:
1. Whether the court abused its discretion in denying
Appellant's PCRA petition, regarding Appellant's timely filed
Notice to Withdraw Guilty Plea, that the court ignored and sent
or forwarded said notice to court appointed counsel, Christopher
Moore, Esq. who did not address or file the Notice as requested
by Appellant, the result being that Appellant was denied the right
to a trial, counsel was clearly ineffective when he failed to file
Appellant's Notice to Withdraw Guilty Plea?
2. Whether the court abused its discretion by failing to
address Appellant's claim of Double Jeopardy, regarding the
cases that had been consolidated by District Attorney Tom
Kearney, Esq. on January 3, 2013, cases were consolidated[ 3]
when Appellant went to his first trial, and Appellant was found to
be not guilty by a jury of his peers, that being case no. CP-67-
CR-8984-2012, no notices or motions to sever said cases has
ever been filed with the court, months after that trial Appellant is
prosecuted again for the same cases, cases that were
consolidated are as follows: CP-67-CR-8984-2012, CP-67-CR-
8983-2012, and CP-67-CR-7563-2011,[4] a miscarriage of
justice did occur, as well as Attorneys George Margetas, Esq.
and Christopher Moore, Esq. were negligent for not raising or
challenging this issue, as asked to do by Appellant a multiple of
times, showing that ineffectiveness of trial counsel claims have
merit?
struggle through the pro se filings of defendants when qualified counsel
represent those defendants.”).
3
As discussed infra, Appellant attached a Notice of Consolidation in his pro
se brief to this Court, indicating the Commonwealth’s intent to consolidate
CR-8984-2012, CR-8983-2012, and CR-7563-2011. It is unclear from the
record whether this Notice was ever filed with the Court.
4
CP-67-CR-7563-2011 is not subject to this appeal, and as such, this Court
does not have the record before us. However, we note that Appellant was
convicted of various weapon and drug offenses in CR-7563-2011.
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3. Appellant avers that a Constitutional violation did occur in
regards to Double Jeopardy, and that Appellant was prosecuted
for the same crimes twice, under 42 Pa. Cons. Stat. §
9543(a)(2)(i)?
4. An Induced Guilty Plea, did occur when Appellant was told
that sentences were to run concurrent, under 42 Pa. Cons. Stat.
§ 9543(a)(2)(vi)?
5. Under 68 Pa.R.Crim.P. 1504 (now 904) requires an
enforceable right to effective Post-Conviction Counsel, and
Attorney Seamus Dubbs, Esq. failed to supply Appellant with
effective counsel when he neglected to file an appeal of the 1st
PCRA hearing, which he had knowledge of Appellant's wish to
appeal?
6. Obstruction of Appellate Process, applies in that the York
County did not honor the filed Notice to Withdraw Guilty Plea as
was advised by the Court he would be allowed to do, this being
under under 42 Pa. Cons. Stat. § 9543(a)(2)(iv)?
7. Ethical claims are also an issue that Appellant intends to
raise, as in Com. v. Townsend, 850 A.2d 741 (Pa. Super. 2005)?
Pa.R.A.P. 1925(b) Statement, filed 9/1/15, at 1-2. Appellant did not
respond to Attorney McCabe’s Petition to Withdraw as Counsel.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its Order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). “The scope of review is limited to the findings of the PCRA court and
the evidence of record, viewed in the light most favorable to the prevailing
party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.
2014) (citation omitted).
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Issues 1, 4, 5, 6 and 7
To be eligible for relief in a PCRA Petition, Appellant was required to
demonstrate, inter alia, that the claims he is now raising were not
“previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3). This Court will
find a claim was previously litigated or waived if (i) Appellant previously
raised the issue on direct appeal or in a prior PCRA Petition; or (ii) “if
[Appellant] could have raised it but failed to do so before trial, at trial,
during unitary review, on appeal or in a prior state postconviction
proceeding.” 42 Pa.C.S. § 9544.
In addition, even claims that have not been previously litigated may
nonetheless be deemed waived for purposes of appeal if a petitioner does
not raise them before the PCRA court. As our Supreme Court has made
clear, if a petitioner fails to raise an ineffective assistance of counsel claim
before the PCRA court, that claim is waived and cannot be raised for the first
time on appeal to this Court. See Commonwealth v. Wharton, 811 A.2d
978, 987 (Pa. 2002) (finding waiver of a claim regarding right to counsel
where the PCRA petitioner did not raise the issue in front of the PCRA court
but instead raised the issue for the first time in his appeal from the denial of
his PCRA petition); Commonwealth v. Basemore, 744 A.2d 717, 726-27
(Pa. 2000); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”).
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Issues one and six in Appellant’s Rule 1925(b) Statement, reproduced
supra, both address the same issue: Appellant’s desire to withdraw his
guilty plea. Both of these issues were previously litigated and denied in
PCRA I. See Transcript of Order, 9/19/14, at 1-2 (denying Appellant relief
on the grounds that counsel acted pursuant to reasonable strategy and was
not required to pursue a frivolous claim where a motion to withdraw
Appellant’s guilty plea would have been denied). Appellant is not entitled to
relief on these previously litigated claims, and the trial court did not err in
denying PCRA II on these grounds. See 42 Pa.C.S. § 9543(a)(3).
In issue four, Appellant alleges he was improperly induced into
entering a guilty plea with the promise that his sentences would run
concurrent to one another. Appellant failed to raise this claim in PCRA I,
failed to demonstrate why this claim could not have been raised in PCRA I,
and failed to develop it at his PCRA II hearing. Therefore, we find this claim
waived. Id.
In issue five, Appellant alleges that PCRA I counsel was ineffective for
failing to file an appeal after the denial of PCRA I. Importantly, Appellant did
not raise this claim in his PCRA II Petition or at his PCRA II hearing.
Instead, he makes this claim for the first time in his Rule 1925(b)
Statement. Because Appellant failed to raise this claim in the PCRA court,
we find Appellant waived this claim. See Wharton, supra; Pa.R.A.P.
302(a).
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Finally, Appellant waived issue seven, pertaining to “ethical claims,” by
failing to raise it in PCRA I, failing to raise it in his PCRA II Petition, failing to
address it in his PCRA II hearing, and failing to raise it with specificity in his
Rule 1925(b) Statement. See Wharton, supra; Pa.R.A.P. 302(a).
Issues 3 and 4 – Double Jeopardy
Appellant raises a double jeopardy challenge, averring that his
separate prosecutions in cases CR-8984-2012, CR-8983-2012, and CR-
7563-2011 were unconstitutional because the cases were consolidated,
Appellant was then acquitted at trial in CR-8984-2012, and then
subsequently prosecuted separately in cases CR-8983-2012, and CR-7563-
2011. The PCRA court, the Commonwealth, and Attorney McCabe all argue
that Appellant waived any double jeopardy challenge 5 by failing to raise it in
PCRA I. This argument is erroneous as a matter of law.
As this Court has made clear, double jeopardy claims “implicate the
fundamental legal authority of the court to impose the sentence that it did”
and, therefore, challenge the legality of the sentence imposed.
Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa. Super. 2007). As a
challenge to the legality of Appellant’s sentence, Appellant could not waive
5
Issue three clearly alleges a double jeopardy violation. In contrast, it is
unclear from the language of issue two whether Appellant meant to allege a
double jeopardy violation, to allege prior counsel was ineffective for not
raising a double jeopardy violation, or both. To the extent that issue two is
simply an ineffective assistance of counsel claim, that argument is waived.
42 Pa.C.S. § 9544.
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this claim. Commonwealth v. Staple, 471 A.2d 847, 849 (Pa. Super.
1984) (finding that the issue of double jeopardy could not be waived, even
where petitioner failed to raise it at trial, on direct appeal, or in his first or
second post-conviction petition). This is true even when an appellant has
attempted to raise the issue in a prior post-conviction petition, so long as
the claim has not been litigated on the merits. Id.In support of his double jeopardy claim, Appellant attached a Notice of
Consolidation as Exhibit 1 in his pro se brief to this Court. This Notice
announces the Commonwealth’s intent to consolidate CR-8984-2012, CR-
8983-2012, and CR-7563-2011. Of those three cases, CR-8983-2012 is the
only record currently before this Court. It is unclear from that record
whether a motion to consolidate was ever filed with the trial court, and if so,
how the trial court ruled on the motion.
Importantly, no court has considered the merits, if any, of Appellant’s
double jeopardy claim. In the absence of any developed record on this
issue, this Court is not equipped to address this claim for the first time on
appeal. Moreover, Appellant’s double jeopardy challenge is predicated on
the factual and procedural history of two additional prosecutions that are not
before this Court. In light of these deficiencies, we are constrained to
remand so that the PCRA court may hold an evidentiary hearing to address
Appellant’s double jeopardy claim on the merits. C.f. Staple, supra at 850-
51 (addressing the double jeopardy claim on its merits for the first time on
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appeal where the parties had briefed the issues on the merits and where the
facts needed to rule on the claim had been developed below).
Based on the foregoing analysis, we affirm the PCRA court’s denial of
Appellant’s petition in part, but vacate as to Appellant’s double jeopardy
claim and remand to the PCRA court to develop the record and address this
claim on the merits.
We further deny Appellant McCabe’s Petition to Withdraw, so that he
may aid Appellant in the development of this claim on remand.
Order affirmed in part and vacated in part. Petition to Withdraw
denied. Case is remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2016
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