Com. v. Valenti, I. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
ISAIAH S. VALENTI
Appellant No. 397 MDA 2015
Appeal from the PCRA Order January 15, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001075-2008
BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 06, 2016
Appellant Isaiah S. Valenti appeals from the order entered in the York
County Court of Common Pleas, which dismissed his petition filed for relief
pursuant to the Post Conviction Relief Act (“PCRA”).1 After careful review,
we affirm and grant counsel’s petition to withdraw.
The PCRA court set forth the relevant facts and procedural history of
this appeal as follows:
On October 17, 2008, a jury found Appellant guilty of one
count of possession of cocaine with intent to distribute,
one count of possession of marijuana, four counts of
accident involving damage to attended vehicle/property,
one count of fleeing and eluding an officer, and six counts
of recklessly endangering another person. N.T. Trial,
October 17, 2012, at 344-5. On December 3, 2008,
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1
42 Pa.C.S. §§ 9541-9546.
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Appellant was sentenced to 11 to 27 years of
incarceration. N.T. Sentence, December 3, 2008, at 7-8.
On that same day, Appellant filed a pro se notice of appeal
(docketed at 2168 MDA 2008), which was dismissed
because Appellant was represented by counsel. A
subsequent notice of appeal was filed on March 18, 2009
(docketed at 494 MDA 2009), and on May 5, 2009, [the
trial court] filed [its] 1925(a) Opinion. In an Opinion filed
March 30, 2010, The Pennsylvania Superior Court affirmed
the judgment of sentence.…
On April 20, 2010, Appellant filed a PCRA petition, which
was denied after a hearing on July 19, 2010. Appellant
filed a subsequent PCRA petition, and after a hearing held
on December 22, 2010, [the] decision was reserved.
Appellant filed an amended petition on January 31, 2011.
On November 29, 2011, Appellant’s petition was granted
and his appellate rights reinstated. The [c]ourt’s orders of
November 2[9], 2011 and October 22, 2012,[2] only
reinstated Appellant’s right to file an appeal from the order
of July 19, 2010, denying Appellant’s first PCRA petition.
The Superior Court concluded in its September 23, 2013
Opinion (docketed at 1883 MDA 2012) that this [c]ourt
improperly granted Appellant nunc pro tunc relief
regarding his appeal from the denial of his first PCRA
petition because Appellant had abandoned that appeal. The
Superior Court affirmed the July 19, 2010 PCRA order and
remanded the matter back to the PCRA court for a hearing
on Appellant’s unresolved claims.
A PCRA hearing addressing Appellant’s two unresolved
claims was held on January 9, 2015 and his petition for
relief was subsequently denied. At the conclusion of the
hearing, Appellant’s counsel was permitted ten days to
review the record and file a motion for reconsideration in
regards to the statement concerning the planting of
evidence. A motion for reconsideration was filed on
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2
Appellant failed to file a timely appeal after the court reinstated his rights
nunc pro tunc, so the court re-instated his right to appeal nunc pro tunc on
October 22, 2012.
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January 16, 2015 and denied without the need for a
hearing or additional testimony on January 29, 2015 since
the Superior Court had previously addressed the
sentencing argument in its prior opinion and there was
already previous testimony on the record from Attorney
Moore. The two issues addressed at the hearing concerned
Paragraphs 3(d) and 3(e) of Appellant’s amended PCRA
petition filed on January 31, 2011.
PCRA Court Pa.R.A.P. 1925(a) Opinion, filed September 24, 2015, at 2-3.
On February 26, 2015, Appellant filed a notice of appeal.3 On March 2,
2015, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely
complied on March 23, 2015. The PCRA court issued a Pa.R.A.P. 1925(a)
opinion on September 24, 2015.
On December 9, 2015, Appellant’s counsel filed a petition to withdraw
along with 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). Counsel incorrectly advised Appellant that
“should the court grant the Petition to withdraw as counsel,” he had the right
to proceed pro se or with the assistance of privately-retained counsel of his
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3
Appellant purported to appeal the January 29, 2015 order, which denied
his petition for reconsideration. However, the appeal properly lies from the
underlying order of January 15, 2015, which denied his PCRA petition. See
Pa.R.Crim.P. 910; Pa.R.A.P. 108(a); Commonwealth v. Moir, 766 A.2d
1253 (Pa.Super.2000). On April 28, 2015, this Court ordered Appellant to
show cause within 10 days why the appeal should not be quashed as
untimely. On May 8, 2015, Appellant filed a response. On May 14, 2015,
this Court discharged the show-cause order and deferred the timeliness
issue to this merits panel. We address this issue infra.
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choice. See Turner/Finley Letter at 12. On December 21, 2015, in light of
counsel’s incorrect advice, this Court ordered Appellant to file a response to
the petition. On January 15, 2016, Appellant filed a response to counsel’s
petition to withdraw, in which he requested this Court strike the petition to
withdraw and no-merit letter but did not raise any additional issues for our
review.
Counsel identified the following issues in his Turner/Finley letter as
the only issues not previously addressed by this Court:
[W]hy did [trial counsel] not request the [c]ourt to make a
ruling on his objection to the statement made by [the
assistant district attorney (“ADA”)?]
[W]hy did [trial counsel] not raise and argue that during
Appellant’s sentencing the court referenced an
objectionable statement made by the [ADA]?
Counsel’s No Merit Letter, December 9, 2015 (“No Merit Letter”) at 7
(pagination supplied by this Court).
Before we determine the merits of Appellant’s claims, we must
determine whether this appeal was timely filed, because the timeliness of an
appeal implicates this Court’s jurisdiction. See Commonwealth v.
Crawford, 17 A.3d 1279, 1281 (Pa.Super.2011). To preserve the right to
appeal a final order of the PCRA court, a notice of appeal must be filed within
thirty days after the date of entry of the order granting or denying relief.
See Pa.R.Crim.P. 910; Pa.R.A.P. 903(a).
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Here, the PCRA court denied Appellant’s PCRA petition on January 9,
2015, and Appellant’s notice of appeal, filed on February 26, 2015, is facially
untimely. In his response to this Court’s order to show cause why this Court
should not dismiss his appeal as untimely filed, Appellant asserts that there
was a breakdown in the PCRA court’s process, specifically that the PCRA
court advised Appellant he could file for reconsideration and request that
additional testimony be taken.
At the conclusion of the hearing on January 9, 2015, the PCRA court
stated:
[F]or today’s purposes, given our discussions surrounding
the trial, the second PCRA petition and amendment to that
PCRA petition, unless anybody else sees the necessity for
testimony, I think we have enough on the record that we
really don’t need to have testimony in the matter. […] I
believe my rulings are that the record supports dismissal
of the PCRA petition…
[Appellant’s counsel,] you can have ten days to obviously
review the record. And if you file a motion for
reconsideration within the next ten days, I’ll take a look at
it and decide whether or not you would be entitled to a
hearing on that…
N.T. January 9, 2015, at 15, 16. In an order docketed on January 15, 2015,
the PCRA court recited the above passage, verbatim. Appellant filed a
motion for reconsideration within the next ten days, and the PCRA court
ultimately denied the motion on January 29, 2015.
Although Appellant should have filed a notice of appeal within 30 days
of the January 15, 2015 order, the PCRA court advised him to file a motion
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for reconsideration, thus purporting to extend its determination of
Appellant’s PCRA petition and consequently Appellant’s appeal period. 4 We
view the PCRA court’s advice to Appellant as incorrect and a breakdown of
the court’s operation. See Commonwealth v. Leatherby, 116 A.3d 73, 79
(Pa.Super.2015) (“[An appellant] should not be precluded from appellate
review based on what was, in effect, an administrative breakdown on the
part of the trial court.”). See also Commonwealth v. Parlante, 823 A.2d
927, 929 (Pa.Super.2003) (“the trial court’s misstatement of appeal
period…operated as a breakdown in the court’s operation”). Thus, we
decline to quash this appeal as untimely.
Next, we must determine whether PCRA counsel has complied with the
technical requirements of Turner/Finley.
Counsel petitioning to withdraw from PCRA representation
must proceed under [Turner/Finley and] ... must review
the case zealously. Turner/Finley counsel must then
submit a “no merit” letter to the trial court, or brief on
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4
However, a motion for reconsideration does not toll the 30-day appeal
period for a PCRA dismissal.
“[A]lthough a party may petition the court for
reconsideration, the simultaneous filing of a notice of
appeal is necessary to preserve appellate rights in the
event that either the trial court fails to grant the petition
expressly within 30 days, or it denies the petition.
Moreover, we have consistently held that an appeal from
an order denying reconsideration is improper and
untimely.”
Commonwealth v. Moir, 766 A.2d 1253.1254 (Pa.Super.2000).
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appeal to this Court, detailing the nature and extent of
counsel’s diligent review of the case, listing the issues
which petitioner wants to have reviewed, explaining why
and how those issues lack merit, and requesting
permission to withdraw. Counsel must also send to the
petitioner: (1) a copy of the “no merit” letter/brief; (2) a
copy of counsel’s petition to withdraw; and (3) a statement
advising petitioner of the right to proceed pro se or by new
counsel. Where counsel submits a petition and no-merit
letter that satisfy the technical demands of Turner/Finley,
the court—trial court or this Court—must then conduct its
own review of the merits of the case. If the court agrees
with counsel that the claims are without merit, the court
will permit counsel to withdraw and deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super.2012) (citations
omitted).
Here, PCRA counsel filed a petition to withdraw along with a
Turner/Finley “no merit” letter that detailed the nature and extent of
counsel’s review of the case, listed the issues Appellant wished to be
reviewed, and explained why each issue lacked merit. See No Merit Letter
at 1-7. Counsel supplied a copy of the letter to Appellant along with his
petition to withdraw. Although counsel erroneously advised Appellant of his
right to proceed pro se or with privately retained counsel if this Court
granted his petition to withdraw, this Court remedied the error by directing
Appellant to file a response to counsel’s petition, and Appellant complied.
This constitutes substantial compliance with the mandates of
Turner/Finley, and we will now address the merits of the claims raised.
Our standard of review is well-settled. “In reviewing the denial of
PCRA relief, we examine whether the PCRA court’s determination is
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supported by the record and free of legal error.” Commonwealth v. Fears,
86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).
“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). “It is well-settled that a PCRA court’s credibility
determinations are binding upon an appellate court so long as they are
supported by the record.” Commonwealth v. Robinson, 82 A.3d 998,
1013 (Pa.2013) (citation omitted). However, this Court reviews the PCRA
court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa.Super.2014) (citation omitted).
In both of his issues, Appellant argues that his trial counsel was
ineffective. Although claims of ineffective assistance of counsel are
cognizable under the PCRA, Appellant waived his issues by failing to raise
them in his first PCRA petition. See 42 Pa.C.S. § 9544(b) (“an issue is
waived if the petition could have raised it but failed to do so… in a prior state
post[-]conviction proceeding.”).
Moreover, this is Appellant’s second petition filed for relief pursuant to
the PCRA. A heightened standard applies to a second or subsequent PCRA
petition to prevent “serial requests for post-conviction relief.”
Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). A second or
subsequent PCRA petition will not be entertained unless “the petitioner
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makes a strong prima facie showing that a miscarriage of justice may have
occurred.” Commonwealth v. Medina, 92 A.3d 1210, 1215
(Pa.Super.2014) (en banc), appeal granted, 105 A.3d 658 (Pa.2014).
“Appellant makes a prima facie showing of entitlement to relief only if he
demonstrates either that the proceedings which resulted in his conviction
were so unfair that a miscarriage of justice occurred which no civilized
society could tolerate, or that he was innocent of the crimes for which he
was charged.” Id. (citation omitted).
Appellant does not allege a miscarriage of justice in his second PCRA
petition. Appellant’s counsel reasoned in his No Merit Letter:
At the January 9, 2015 hearing, you stated in part the
following: “today I’m [here] to[,] you know what I mean,
to take full responsibility for my actions like you said in the
past.” It is unlikely that the Superior Court will interpret
these statements as establishing your innocence.
No Merit Letter at 7-8.
Counsel is correct that we do not interpret Appellant’s statements as
establishing his innocence, and our independent review of the record does
not reveal that a miscarriage of justice occurred which no civilized society
could tolerate.
Having found Appellant waived his issues and failed to allege a
miscarriage of justice, and finding nothing in the record that would support a
contrary result, we affirm the order of the PCRA court denying Appellant’s
PCRA petition and grant PCRA counsel’s petition to withdraw.
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Order affirmed. Petition to Withdraw as Counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
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