Com. v. Moyer, C. ( 2019 )

J-S47003-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL FREEMAN MOYER :
:
Appellant : No. 75 MDA 2019
Appeal from the PCRA Order Entered December 20, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0002061-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL FREEMAN MOYER :
:
Appellant : No. 76 MDA 2019
Appeal from the PCRA Order Entered December 20, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001050-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL FREEMAN MOYER, JR. :
:
Appellant : No. 77 MDA 2019
Appeal from the PCRA Order Entered December 20, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001387-2014
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
J-S47003-19
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 03, 2019
Appellant, Carl Moyer, Jr., appeals pro se from the Order dismissing his
first Petition filed pursuant to the Post Collateral Review Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. We affirm.
On March 10, 2015, Appellant pled guilty to three counts of DUI –
Highest Rate of Alcohol1 in connection with three separate incidents that
occurred between March 15, 2014, and August 30, 2014. After reviewing a
pre-sentence report and other documents,2 the court imposed an aggregate
sentence of 15 years of Intermediate Punishment with the first 17 months to
be served at the county work release facility. However, after sentencing, the
court overheard Appellant speaking with his significant other and with his
probation officer in the hall outside the courtroom, and realized that the
information provided by Appellant at the sentencing hearing regarding his
efforts toward sobriety may not have been accurate. The court sua sponte
immediately directed the parties to return to the courtroom, re-opened the
record, vacated the original sentence, and took additional testimony from
Appellant and his significant other.
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1 75 Pa.C.S. § 3802(c).
2 The parties stipulated that Appellant’s prior record score is RFEL (“repeat
felony offender”) and his offense gravity score is five. Commonwealth v.
Moyer, No. 2064 MDA 2016 (Pa. Super. filed Nov. 15, 2017) (unpublished
memorandum).
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The court then sentenced Appellant to an aggregate sentence of six to
fifteen years’ incarceration in state prison. In its written sentencing order, the
court noted that “because it is apparent . . . that the defendant continues to
drink and has not accepted responsibility for his extremely dangerous conduct,
and has, in fact, made misrepresentations to the [c]ourt regarding his steps
at recovery[,] . . . the [c]ourt is of the opinion that a sentence of state prison
is warranted.” Order, dated 3/10/15, at 1. Appellant did not file a post-
sentence motion or a direct appeal.
After Appellant successfully petitioned for the reinstatement of his
appeal rights, he timely appealed to challenge the discretionary aspects of his
sentence. This Court affirmed Appellant’s Judgment of Sentence in an
unpublished Memorandum. Commonwealth v. Moyer, No. 2064 MDA 2016
(Pa. Super. filed Nov. 15, 2017).
Appellant timely filed the instant PCRA Petition raising challenges to the
sentencing proceedings and the effectiveness of trial counsel’s stewardship.
The court appointed counsel, who filed a Turner/Finley3 no merit letter and
a Motion to Withdraw as Counsel.
Pursuant to Pa.R.Crim.P. 907, the court notified Appellant of its intent
to dismiss his Petition without a hearing and granted counsel’s Motion to
Withdraw. See Opinion and Order, filed Oct. 16, 2018. Appellant responded
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3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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to the Rule 907 Notice, again raising ineffective assistance of trial counsel as
well as PCRA counsel. The court dismissed his Petition.
Appellant timely appealed. Both Appellant and the PCRA court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues in his Brief:
1. Did the trial court abuse its discretion in engaging in ex parte
communications with the prosecution and an ex-post-fact[4]
witness for the purpose of sentencing?
2. Did the trial court abuse its discretion in resentencing the
defendant without allowing defendant to withdraw his prior plea
of guilt?
3. Did the prosecution engage in misconduct in presenting ex
parte and ex-post-facto evidence to the trial court in order to
ambush and violate due process?
4. Was trial counsel ineffective in failing to move for immediate
withdrawal of the defendant’s guilty plea based upon the above
errors?
5. Did the cumulative effect of these violations violate the
defendant’s fundamental fairness and due process rights?
Appellant’s Br. at 1.5
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4Appellant clarified in his Response to the court’s Rule 907 Notice that he was
using the term “ex post facto” to mean “after the fact” of the sentencing,
essentially asserting that the court should not have taken further testimonial
evidence after imposing its original sentence. See Response to Rule 907, filed
11/2/18, at 2.
5 Although raised in his Response to the court’s Rule 907 Notice, Appellant
has not raised his claim of PCRA counsel’s ineffectiveness in his Brief. The
claim is, therefore, waived.
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Standard and Scope of Review
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). This
Court grants great deference to the findings of the PCRA court if the record
supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.
2007). We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
This Court has long recognized that there is no absolute right to an
evidentiary hearing. Commonwealth v. Hart, 911 A.2d 939, 941 (Pa. Super.
2006). "It is within the PCRA court's discretion to decline to hold a hearing if
the petitioner's claim is patently frivolous and has no support either in the
record or [in] other evidence." Commonwealth v. Wah, 42 A.3d 335, 338
(Pa. Super. 2012) (citations omitted). When the PCRA court denies a petition
without an evidentiary hearing, we "examine each issue raised in the PCRA
petition in light of the record certified before it in order to determine if the
PCRA court erred in its determination that there were no genuine issues of
material fact in controversy and in denying relief without conducting an
evidentiary hearing." Commonwealth v. Khalifah, 852 A.2d 1238, 1240
(Pa. Super. 2004) (citation omitted).
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Issues 1-3 Waived
To be eligible for relief under the PCRA, a petitioner must demonstrate
that the issue has not been previously litigated or waived. 42 Pa.C.S. §
9543(a)(3). “An allegation is deemed waived ‘if the petitioner could have
raised it but failed to do so before trial, at trial, on appeal or in a prior state
postconviction proceeding.” Commonwealth v. Brown, 872 A.2d 1139,
1144 (Pa. 2005) (quoting 42 Pa.C.S. § 9544(b)). “We further note that,
pursuant to Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998), the
relaxed waiver rule is no longer applicable to PCRA appeals and therefore any
claims that have been waived by Appellant are beyond the power of this Court
to review under the terms of the PCRA.” Brown, 872 A.2d at 1144.
In his first and third issues, Appellant challenges his resentencing
proceeding, asserting that the court abused its discretion in considering
inadmissible evidence. He also raises a discretionary aspect of sentencing
claim, contending that the court “ignored each and every mitigating factor it
considered in the original sentencing proceeding” to impose a term of
incarceration to be served in state prison. Appellant’s Brief at 14. Finally,
Appellant asserts the prosecutor improperly presented “ex parte and ex-post-
facto evidence to the court” to “ambush and violate due process.” Id. at 12.
In support, he posits that the prosecutor went to the trial court after
Appellant’s significant other “began to rant concerning a single indiscretion
concerning [Appellant’s] sobriety” to “back-door[] this information to the trial
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judge outside the proceedings and inflamed the judge to re-open the case.”
Id. at 13.
As noted above, this Court previously addressed Appellant’s challenge
to the discretionary aspects of his sentence on direct appeal and, therefore, it
is not now cognizable. 42 Pa.C.S. §§ 9543(a)(3) and 9544(a)(2);
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). In addition,
Appellant should have raised his challenges to the resentencing proceeding
itself on direct appeal. He did not. These issues are, therefore, waived. 42
Pa.C.S. § 9544(b).
In his second issue, Appellant alleges that the trial court abused its
discretion in resentencing him without allowing him the opportunity to
withdraw his guilty plea. Appellant’s Br. at 11. Appellant did not raise this
issue in his PCRA Petition and it is, thus, waived. See Pa.R.A.P. 302(a) (issues
not raised in trial court are waived). See also 42 Pa.C.S.A. § 9544(b);
Commonwealth v. Rainey, 928 A.2d 215, 226 (Pa. 2007) (concluding that
issues not raised in a PCRA petition are waived and cannot be considered for
the first time on appeal).6
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6Even if he had raised it in his PCRA Petition, we would conclude it is waived
because he should have raised this issue on direct appeal. 42 Pa.C.S. §
9544(b).
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Issue 4 – Ineffective Assistance of Trial Counsel
Appellant challenges the effectiveness of trial counsel’s assistance by
contending that, after the court resentenced him, defense counsel should have
moved for the immediate withdrawal of Appellant’s guilty plea because he
received an excessive sentence. Appellant’s Br. at 14-16. No relief is due.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he
burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy
this burden, Appellant must plead and prove by a preponderance of the
evidence that: “(1) his 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 challenged
proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d
567, 572 (Pa. 2003) (citation omitted). Failure to satisfy any prong of the
test will result in rejection of the appellant’s ineffective assistance of counsel
claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
In order to withdraw a guilty plea after the imposition of sentence, a
defendant must make a showing of prejudice that resulted in a “manifest
injustice.” Commonwealth v. Culsoir, 209 A.3d 433, 437 (Pa. Super. 2019)
(citation omitted). “A defendant meets this burden only if he can demonstrate
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that his guilty plea was entered involuntarily, unknowingly, or unintelligently.”
Id. (citation omitted).
A request to withdraw a guilty plea after sentencing is subject to higher
scrutiny because “courts strive to discourage [the] entry of guilty pleas as
sentence-testing devices.” Commonwealth v. Flick, 802 A.2d 620, 623 (Pa.
Super. 2002).
Here, Appellant has not asserted that he entered his guilty plea
involuntarily, unknowingly, or unintelligently. Rather, his claim that counsel
should have asked to withdraw his guilty plea after re-sentencing is because
he is unhappy with his state prison sentence. Based on the above case law,
trial counsel would have no cognizable basis to request the withdrawal of the
guilty plea. Accordingly, because the underlying issue has no merit, this
ineffectiveness claim warrants no relief.
Issue 5 – Cumulative Effect of “Errors”
Appellant next contends that the cumulative effect of the errors asserted
above resulted in the denial of his right to due process and the fundamental
fairness of the proceedings. Appellant’s Br. at 16-17. As explained above,
Appellant waived issues 1 through 3 and issue 4 has no merit. Accordingly,
there is no error for us to consider as accumulating into prejudice and there
is no basis to grant relief on this issue.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/03/2019
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