Com. v. Stahl, S. ( 2016 )

J-A18033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEPHEN STAHL,
Appellant No. 1589 MDA 2015
Appeal from the Order Entered August 12, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001067-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 31, 2016
Appellant, Stephen Stahl, appeals from the order entered on August
12, 2015, denying his counseled “Petition for Permission to File Nunc Pro
Tunc Appeal,” which constitutes Appellant’s first petition under the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The relevant facts and procedural history are as follows: Appellant,
who was a high school teacher, was arrested and charged with one count of
corruption of minors, 18 Pa.C.S.A. § 6301(a)(1). The charge stemmed from
a sexual relationship involving Appellant and a fifteen-year-old female
student. Represented by privately-retained counsel, Appellant proceeded to
a jury trial, and on January 16, 2015, the jury convicted Appellant of the
offense.
*Former Justice specially assigned to the Superior Court.
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On March 23, 2015, Appellant proceeded to a sentencing hearing, at
the conclusion of which the trial court imposed a sentence of six months to
twenty-three months in prison. Moreover, the trial court advised Appellant,
in detail, of his post-sentence and appellate rights. N.T. sentencing,
3/23/15, at 5-6. Specifically, the trial court indicated the following:
[Appellant], I have issued your sentence. You have two
choices if you’d like to appeal my sentence. Since you were
convicted after a trial, you may appeal to a higher court, or you
may file a post-sentence motion in front of me. If you appeal to
a higher court you must file an appeal directly to the Superior
Court within 30 days of today’s date and it must be in writing. If
you cannot afford counsel, counsel will be appointed to represent
you. If you cannot afford counsel, you should notify me within
ten days of the date of today and I will appoint counsel to
represent you. If you don’t file an appeal, any errors occurring
during the trial, or any complaints you have about my sentence,
will be lost forever.
You have the right to file a post-sentence motion. This
must be done within ten days of today’s date and must be in
writing. As a direct appeal, if you cannot afford counsel, counsel
will be appointed to represent you. If you need court appointed
counsel, please notify me within ten days of today and I will
appoint counsel to represent you.
It is important that you understand that if you wish to
argue on appeal that the guilty verdict in your case is against the
weight of the evidence or that your sentence is excessive, you
must file a post-sentence motion. With the exception of these
two issues, it is not necessary to first file a post-sentence motion
with this Court. However, you have the right to file such a
motion if you choose to do so. Your post-sentence motion must
state specifically the reasons you believe you are entitled to
relief.
If you file a post-sentence motion this Court will have 120
days from the date of the filing to make a decision. In certain
situations I can extend this deadline for an additional 30 days at
the request of your attorney based upon good cause. If I fail to
decide your post-sentence motion within this time period, the
motion will be denied automatically. Once your post-sentence
motion has been denied, you will have 30 days from the date to
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file an appeal to the Superior Court. This appeal must be in
writing and counsel will be appointed to represent you if you
cannot afford to hire one or have your own attorney.
Id.
Furthermore, the following relevant exchange occurred regarding
privately-retained counsel’s continued representation of Appellant:
[Trial Counsel]: Your Honor, I would ask that you grant my
withdrawal from the case.
THE COURT: [Appellant], [trial counsel] is requesting that he
withdraw from your case. Do you have any objection?
[Appellant]: No, sir.
THE COURT: I will grant that motion.
Id. at 7-8.
Thereafter, Appellant filed neither a timely post-sentence motion nor a
timely direct appeal from his judgment of sentence. However, on July 2,
2015, Appellant filed a counseled petition entitled “Petition for Permission to
File Nunc Pro Tunc Appeal.” Therein, new counsel, who was a member of
the Luzerne County Public Defender’s Office, averred that, Appellant, who
was incarcerated, had been attempting to contact the Public Defender’s
Office in order to obtain new counsel; however, the Public Defender’s Office
did not receive his application for representation until June 23, 2015.
Counsel suggested Appellant did not voluntarily waive his right to a direct
appeal and that it would be in the “interests of justice” for the trial court to
reinstate Appellant’s direct appeal rights.
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The matter proceeded to a hearing on August 12, 2015, at which
Appellant testified. Specifically, the following relevant exchange occurred
between Appellant and his court-appointed attorney on direct examination:
Q: Sir, can you tell the Court what happened after you were
remanded to the Luzerne County Correctional Facility on March
23rd?
***
A: Okay. You don’t get to call anybody until the counselor would
call you down and you had one shot. I tried calling an attorney,
that was my one shot. You get to add numbers to your calling
list. The numbers I did add were my mother, my sister, my
wife, et cetera. That’s the only numbers you could call from
there. During that time, I think six days had passed and I got
acclimated to the system there and I put in a request to seek
counsel. I believe it was around April 3rd. I didn’t receive any
response. Later again that month I tried again. No response. I
believe this is the fourth attempt when I finally did get a hold of
the public defender. Also during that time I missed- -there’s five
other requests that weren’t answered. I requested to see the
counselor again to try to call a lawyer. No response from the
counselor. I tried to get a hold of the counselor for early parole.
He did not respond. I also tried work-release. Doctor, I had a
medical problem while I was there. No response.
Q: Sir, what was your level of- -how often were you allowed to
be out of your cell during that timeframe?
A: Two hours a day.
Q: So that would be 22 hours- -
A: Of lockdown.
Q: On lockdown. Do you recognize this?
A: Yes.
Q: Can you identify what that is for the record?
A: That’s my application for the public defender.
***
Q: Does it accurately depict what you filled out for the Public
Defender’s Office?
A: Yes.
Q: When was that date?
A: The 16th of June.
***
Q: That is the request that you know was received by the Public
Defender’s Office?
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A: Yes.
Q: And how did you know that it was received by the Public
Defender’s Office?
A: I received a copy back.
Q: Prior to that, did any of your requests- -did you receive a
copy back?
A: No.
Q: After that time, did someone from the Public Defender’s
Office reach out for you?
A: Yes.
N.T. petition hearing, 8/12/15, at 3-6.
On cross examination, Appellant admitted that he knew, at the time of
sentencing, he had ten days to file a post-sentence motion and thirty days to
file an appeal. Id. at 6-7. Appellant agreed that, despite the fact the trial
court had instructed him to contact the court if he was in need of counsel
following the sentencing hearing, he did not write to or attempt to contact
the court. Id. at 7-9. Appellant admitted that, although he had ten minutes
a day to make telephone calls, he only called an attorney on one occasion,
and he did not ask his family to contact either a private attorney or the
Public Defender’s Office on his behalf. Id. Appellant confessed he knew
that if he did not have a lawyer he could represent himself and file
documents pro se. Id. at 9.
Further, Appellant initially suggested prison officials prevented him
from filing an appeal with the lower court; however, he subsequently
admitted he did not draft a notice of appeal or a letter to the trial court
asking for an appeal. Id. at 9-10. Appellant denied knowing that he could
have applied for a public defender via a video system at the prison. Id.
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At the conclusion of the hearing, the lower court denied Appellant’s
petition, and thereafter, Appellant filed a timely, counseled appeal to this
Court. All Pa.R.A.P. 1925 requirements have been met.
Appellant argues that the lower court erred in failing to reinstate his
direct appeal rights nunc pro tunc. Initially, we note that the lower court
should have treated Appellant’s counseled “Petition for Permission to File
Nunc Pro Tunc Appeal” as a timely petition under the PCRA. The PCRA
“provides for an action by which persons convicted of crimes they did not
commit and persons serving illegal sentences may obtain collateral relief.”
42 Pa.C.S.A. § 9542. As the statute declares, the PCRA “is the sole means
of obtaining collateral relief and encompasses all other common law and
statutory remedies[.]” Id. Thus, “if the underlying substantive claim is one
that could potentially be remedied under the PCRA, that claim is exclusive to
the PCRA.” Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa.Super.
2004) (emphasis omitted).
Here, Appellant’s “Petition for Permission to File Nunc Pro Tunc Appeal”
requests the nunc pro tunc restoration of direct appeal rights. The PCRA
encompasses Appellant’s claim for relief, as Appellant is seeking to obtain
collateral relief from his final judgment of sentence and the PCRA may,
potentially, provide a remedy for Appellant. See Commonwealth v. Eller,
569 Pa. 622, 807 A.2d 838 (2002) (holding a petitioner may not pursue
reinstatement of appellate rights nunc pro tunc outside of the PCRA);
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Commonwealth v. Farrior, 809 A.2d 396, 397 (Pa.Super. 2002) (holding
“all requests for reinstatement of appellate rights, including PCRA appellate
rights, must meet the timeliness requirements of the PCRA”).
Appellant’s claim, thus, falls under the rubric of the PCRA, and since
the PCRA encompasses Appellant’s claim, he “can only find relief under the
PCRA’s strictures.” Pagan, 864 A.2d at 1233.1 Accordingly, we utilize the
following standard of review in this case:
Our review of a PCRA court's decision is limited to
examining whether the PCRA court's findings of fact are
supported by the record, and whether its conclusions of law are
free from legal error. We view the findings of the PCRA court
and the evidence of record in a light most favorable to the
prevailing party. . . .The PCRA court's credibility determinations,
when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA
court's legal conclusions.
Commonwealth v. Mason, ___ Pa. ___, 130 A.3d 601, 617 (2015)
(quotation marks and quotations omitted).
With regard to the restoration of appeal rights, this Court has
recognized that a nunc pro tunc appeal should be permitted when the delay
in filing an appeal was caused by an extraordinary circumstance, such as
fraud or some breakdown in the process of the court. See Commonwealth
v. Braykovich, 664 A.2d 133 (Pa.Super. 1995). A “breakdown” can occur
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1
Since Appellant’s counseled petition, which constitutes his first PCRA
petition, was filed within one year of the date his judgment of sentence
became final, the petition is timely under the PCRA. See 42 Pa.C.S.A. §
9545(b)(1).
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when the trial court departs from the obligations specified in the
Pennsylvania Rules of Criminal Procedure. Commonwealth v. Patterson,
940 A.2d 493 (Pa.Super. 2007). For instance, “[t]he courts of this
Commonwealth have held that a court breakdown occur[s] in instances
where the trial court, at the time of sentencing, either fail[s] to advise [an]
[a]ppellant of his post-sentence and appellate rights or misadvise[s] him.”
Id. at 498 (citations omitted).
In the case sub judice, the record is clear that the trial court properly
advised Appellant of his appellate rights such that there has been no
“breakdown” in this regard. See Patterson, supra. Moreover, to the
extent Appellant suggested prison officials interfered with his attempt to file
a notice of appeal, the lower court, as was within its province, rejected
Appellant’s testimony. N.T. petition hearing, 8/12/15, at 19;
Commonwealth v. Spotz, 624 Pa. 4, 84 A.3d 294 (2014) (indicating
credibility determinations are within the province of the PCRA court).
This does not end our inquiry, however, as Appellant avers that he did
not otherwise knowingly, understandingly, or voluntarily waive his right to
file a direct appeal with the assistance of counsel.
In discussing the PCRA, we have clarified the area of waiver as it
relates to a defendant’s right to a direct appeal and counsel as follows:
It is axiomatic that in our scheme of justice an accused has
the right to appeal his sentence and to the assistance of
appointed counsel, if indigent, in doing so. Concomitantly, the
accused has the ability to “waive” his right to counsel and to an
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appeal. As our Supreme Court capsulized in Commonwealth v.
Norman, 447 Pa. 217, 285 A.2d 523 (1971):
In determining whether a defendant has waived a
constitutional right it is well-settled that the federal
standards of waiver. . .apply. The waiver of a
constitutional right must be “an intentional
relinquishment or abandonment of a known right or
privilege.” The presumption must always be against
the waiver of a constitutional right. Nor can waiver
be presumed in a silent record case. The United
States Supreme Court specifically ruled in Carnley
v. Cochran, 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d
70 (1962):
“Presuming waiver from a silent record is
impermissible. The record must show, or
there must be an allegation and evidence
which show, that an accused was offered
counsel but intelligently and
understandingly rejected the offer.
Anything less is not waiver.”
Id. at 516, 82 S.Ct. at 890. Thus, this Court is
constitutionally bound to place the burden of proving
waiver on the Commonwealth. Whether [the]
defendant was represented by private or court-
appointed counsel. . .are distinctions with no legal
significance.
[Norman], 477 Pa. at 221-22, 285 A.2d at 526.
***
Moreover, as stated by the Supreme Court of Pennsylvania
on the subject at hand,
[T]he trial court, the Commonwealth or trial counsel
should place on the record, perhaps immediately
after sentence is imposed, a full examination of the
accused sufficient to demonstrate that he is aware of
his right of appeal and his right of counsel for that
purpose, and that he understands the full import of
these rights as well as the consequences which may
flow from their exercise.
Commonwealth v. Wilson, 430 Pa. 1, 6, 241 A.2d 760, 763
(1968) (footnote omitted).
Commonwealth v. Davis, 573 A.2d 1101, 1105-06 (Pa.Super. 1990)
(citations, quotations, and emphasis omitted).
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In the case sub judice, we do not have a “silent” record regarding
whether Appellant was aware of his right to file a direct appeal and the
entitlement to court-appointed counsel to aid him in that endeavor.
Specifically, at the conclusion of the sentencing hearing, as indicated supra,
the trial court informed Appellant of these rights. Moreover, at the August
12, 2015, hearing, as indicated supra, Appellant admitted that he had been
informed of and knew these rights.
As to whether Appellant voluntarily relinquished these known rights,
based on Appellant’s testimony presented at the August 12, 2015, hearing,
the lower court concluded “[i]t is clear that [Appellant] originally had no
intention of appealing his conviction or sentence.” Lower Court Pa.R.A.P.
1925(a) Opinion, filed 11/3/15.2 Additionally, as it relates to Appellant’s
assertions that he attempted to secure counsel prior to his June 16, 2015,
application to the Public Defender’s Office (which was made fifty-four days
after the expiration of the appeal period from his judgment of sentence), the
lower court specifically found “[Appellant’s] vague testimony regarding his
alleged attempts to obtain counsel [ ] lack[s] credibility.” Id.
Accordingly, we agree with the lower court that Appellant was
informed of his right to appeal and the appointment of appellate counsel
prior to filing the instant petition. Further, constrained by the lower court’s
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2
The lower court’s Rule 1925(a) opinion is not paginated.
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credibility determinations, we find no error of law in the the lower court’s
conclusion that Appellant’s failure to perfect an appeal was done knowingly
and intelligently such that he voluntarily relinquished his right to appeal.
See Davis, supra.
Finally, we note Appellant baldly suggests that trial counsel was
ineffective in failing to ensure new counsel was appointed prior to seeking to
withdraw at the sentencing hearing. Appellant’s one paragraph argument
with regard to this issue prevents meaningful review. See Appellant’s Brief
at 11; Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786 (2008)
(finding ineffectiveness claims waived for lack of development). Further, the
sole case to which Appellant cites for this proposition, Commonwealth v.
Stock, 545 Pa. 13, 679 A.2d 760 (1996), is not on point.
In Stock, our Supreme Court held counsel's failure to file a requested
appeal in a summary case, which resulted in a loss of the appellant's state
constitutional right to appeal, amounted to extraordinary circumstances
permitting the remedy of an appeal nunc pro tunc. Id. at 20, 679 A.2d at
764. Subsequent to Stock, our Supreme Court held that an unjustified
failure of counsel to perfect an appeal guaranteed as of right constitutes
ineffectiveness per se, such that the petitioner is entitled to reinstatement of
his direct appeal rights from a judgment of sentence nunc pro tunc without
establishing prejudice. Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d
564 (1999).
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However, before a court will find ineffectiveness of counsel for failing
to file a direct appeal, the petitioner must prove that he requested a direct
appeal and counsel disregarded the request. Commonwealth v. Ousley,
21 A.3d 1238 (Pa.Super. 2011). Presently, Appellant has neither averred
that he requested trial counsel to file a direct appeal nor that counsel
disregarded any such request. See Ousley, supra.
For all of the aforementioned reasons, we conclude the lower court
properly held that Appellant was not entitled to the reinstatement of his
direct appeal rights nunc pro tunc, and accordingly, we affirm the lower
court’s August 12, 2015, order.
Affirmed.
PJE Ford Elliott joins the memorandum.
PJE Bender notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2016
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