Com. v. Muzzy, D. ( 2016 )


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  • J-S17028-16
    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    DANIEL SCOTT MUZZY,
    Appellant                                     No. 1215 WDA 2015
    Appeal from the PCRA Order July 21, 2015
    In the Court of Common Pleas of Warren County
    Criminal Division at No(s): CP-62-CR-0000043-2013
    BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
    MEMORANDUM BY SHOGAN, J.:                       FILED SEPTEMBER 15, 2016
    Appellant, Daniel Scott Muzzy, appeals from the order denying his first
    petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
    42 Pa.C.S. §§ 9541-9546. For the reasons that follow, we affirm.
    By information filed February 13, 2013, Appellant was charged with
    rape of a child, statutory sexual assault, involuntary deviate sexual
    intercourse (“IDSI”) with a child, aggravated indecent assault, indecent
    assault, and corruption of a minor. The affidavit of probable cause, filed by
    Warren County Police Officer Jeffrey P. Osborne, indicates that the nine-
    year-old female victim’s father contacted police on December 3, 2012, and
    reported that his daughter revealed that Appellant had sexually assaulted
    her. The affidavit states that Appellant:
    *
    Former Justice specially assigned to the Superior Court.
    J-S17028-16
    had gone into [the victim’s] room[1] on 4–5 occasions during the
    late night hours. [Appellant] during the last time he came into
    her room had pulled her panties and pajamas down, taking them
    both down by pulling one of the legs of her pajamas off.
    [Appellant] was licking and kissing her “down there” and that
    [Appellant] had hurt her vaginal area buy [sic] penetrating her
    when he was down there.
    Affidavit of Probable Cause, 1/31/13, at 1.
    On April 12, 2013, Appellant pled guilty pursuant to a negotiated plea
    to IDSI at count three “with the Commonwealth agreeing not to seek the
    mandatory     minimum     sentence   of   ten   years;   and   further,   that   the
    Commonwealth will stand mute at the time of sentencing.”              N.T. (Guilty
    Plea), 4/12/13, at 3. In addition, the Commonwealth sought nolle prosequi,
    which the trial court entered, of all remaining charges.              The Sexual
    Offenders Assessment Board (“SOAB”) determined on July 30, 2013, that
    Appellant met the criteria to be designated a Sexually Violent Predator
    (“SVP”). Following an SVP hearing, the trial court designated Appellant an
    SVP on October 8, 2013.         Also on that date, the trial court sentenced
    Appellant to a term of incarceration of ten to twenty years for IDSI, to run
    consecutively to an unrelated sentence Appellant was serving at that time.
    On October 17, 2013, Appellant filed a motion to reconsider his sentence,
    which the trial court denied on November 19, 2013. Appellant did not file an
    appeal.
    1
    The record does not reveal Appellant’s relationship to the victim’s family.
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    On November 12, 2014, Appellant filed a timely pro se PCRA petition.
    The PCRA court appointed counsel, who filed an amended petition on April
    29, 2015.   The PCRA court conducted an evidentiary hearing on July 16,
    2015, and thereafter denied Appellant’s PCRA petition on July 21, 2015.
    Appellant filed a timely notice of appeal. Both Appellant and the PCRA court
    complied with Pa.R.A.P. 1925.
    Appellant’s counsel, who is different than plea counsel, filed an
    application to withdraw and thereafter filed a document purporting to be a
    Turner/Finley2 “no merit letter.” We determined that counsel’s purported
    Turner/Finley filing was more akin to a brief pursuant to Anders v.
    California, 
    386 U.S. 738
     (1967). Commonwealth v. Muzzy, __ A.3d __,
    ___, 
    2016 PA Super 77
    , at *1 n.3 (Pa. Super. 2016) (filed March 31, 2016).
    However, because an Anders brief provides greater protection to a
    defendant, we accepted it in lieu of a Turner/Finley “no-merit” letter.
    Muzzy, 
    2016 PA Super 77
     at *1 n.3 (citing Commonwealth v. Reed, 
    107 A.3d 137
    , 139 n.5 (Pa. Super. 2014)).
    In reviewing counsel’s compliance with the procedural requirements
    for withdrawing as counsel, however, we concluded that counsel’s letter to
    Appellant incorrectly worded the description of his rights in lieu of
    representation, which resulted in the provision of inaccurate information to
    Appellant. Muzzy, 
    2016 PA Super 77
     at *2 (“Counsel’s letter to Appellant
    2
    Commonwealth v. Turner, 
    544 A.2d 927
     (Pa. 1988); Commonwealth
    v. Finley, 
    550 A.2d 213
     (Pa. Super. 1988) (en banc).
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    render[ed] her attempt to withdraw as counsel defective under relevant case
    law prescribing the proper procedure for withdrawal in a collateral appeal.”).
    As a result of counsel’s misstatement, we concluded that the petition to
    withdraw was deficient, and we denied it. Rather, we remanded this case
    and instructed counsel “either to file an advocate’s brief or to refile her ‘no-
    merit’ letter under Turner/Finley.” Muzzy, 
    2016 PA Super 77
     at *3. If she
    chose the latter, we directed that counsel’s letter to Appellant shall provide,
    inter alia, accurate notice of Appellant’s immediate right to proceed pro se or
    with private counsel. 
    Id.
    Curiously, in response to our directive, counsel has now filed both an
    advocate’s brief3 and a petition to withdraw as counsel. This suggests that
    counsel fails to comprehend the difference between a merits brief and a “no-
    merit” letter pursuant to Turner/Finley.       Compare Commonwealth v.
    Santiago, 
    978 A.2d 349
    , 359–360 (Pa. 2009) (“[A] merits brief . . . implies
    that an issue is worthy of review and has some chance of succeeding”), with
    Turner, 544 A.2d at 928 (clarifying that when counsel seeks to withdraw in
    a collateral matter, counsel must present a “no-merit” letter detailing nature
    and extent of review along with counsel’s explanation of why raised issues
    3
    Counsel has averred that she is filing an advocate’s brief “at the strong
    urging of the Superior Court.” Appellant’s Brief at 5. This is patently
    inaccurate.   Our prior decision filed on March 31, 2016, included no
    suggestion advocating one position or another. Muzzy, 
    2016 PA Super 77
    at *3. Our sole purpose was to correct the misinformation counsel had
    provided to her client and to clarify counsel’s misstatement for the bar of the
    Court.
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    are meritless). Further, while counsel corrected the inartful language in her
    letter to Appellant, she averred therein that she was filing an “advocate’s
    brief per the decision under Anders v. California.” Petition, 4/13/16. Such
    statement evidences a failure to comprehend the holdings of Turner/Finley
    and Anders and their disparate applicabilities.
    Because our review of counsel’s brief in support of Appellant’s appeal
    reveals that she has filed a merits brief, despite the moniker she assigns it,
    and notwithstanding counsel’s statement in the accompanying petition to
    withdraw that the issues identified in Appellant’s PCRA petition “have no
    merit,” we will treat the case accordingly.       Therefore, we deny counsel’s
    petition to withdraw as counsel because, in all other respects, counsel now
    proceeds with her representation of Appellant as if she did not file a petition
    to withdraw.4
    Counsel raises the following issue for our review:
    A. Whether trial counsel was ineffective for failing to explain
    the Appellant’s rights and the ramifications of a plea of
    guilty along with whether counsel was ineffective for
    promising [that] the Appellant would receive a certain
    sentence?
    Appellant’s Brief at 2 (full capitalization omitted).
    The PCRA clearly encompasses claims that arise where a guilty plea is
    unlawfully induced.     See 42 Pa.C.S. § 9543(a)(2)(iii) (stating relief is
    available under the PCRA where “the conviction or sentence resulted” from
    4
    We note that Appellant has not indicated a willingness to proceed pro se
    or with other counsel.
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    “[a] plea of guilty unlawfully induced where the circumstances make it likely
    that the inducement caused the petitioner to plead guilty and the petitioner
    is innocent”).   Thus, the identified issue is cognizable under the PCRA.
    Commonwealth v. Oliver, 
    128 A.3d 1275
    , 1280 (Pa. Super. 2015).
    When reviewing the propriety of an order denying PCRA relief, this
    Court is limited to determining whether the evidence of record supports the
    conclusions of the PCRA court and whether the ruling is free of legal error.
    Commonwealth v. Rykard, 
    55 A.3d 1177
    , 1183 (Pa. Super. 2012).            We
    grant great deference to the PCRA court’s findings that are supported in the
    record and will not disturb them unless they have no support in the certified
    record. Commonwealth v. Rigg, 
    84 A.3d 1080
    , 1084 (Pa. Super. 2014).
    Appellant’s issue asserts a claim of ineffective assistance of plea
    counsel. To plead and prove ineffective assistance of counsel, a petitioner
    must establish: (1) that the underlying issue has arguable merit; (2)
    counsel’s actions lacked an objective reasonable basis; and (3) actual
    prejudice resulted from counsel’s act or failure to act. Commonwealth v.
    Stewart, 
    84 A.3d 701
    , 706 (Pa. Super. 2013) (en banc).           A claim of
    ineffectiveness will be denied if the petitioner’s evidence fails to meet any
    one of these prongs.    Commonwealth v. Martin, 
    5 A.3d 177
    , 183 (Pa.
    2010).   Counsel is presumed to have rendered effective assistance of
    counsel. Commonwealth v. Montalvo, 
    114 A.3d 401
    , 410 (Pa. 2015). We
    have explained that trial counsel cannot be deemed ineffective for failing to
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    pursue a meritless claim.   Commonwealth v. Loner, 
    836 A.2d 125
    , 132
    (Pa. Super. 2003) (en banc).
    The essence of Appellant’s ineffectiveness claim as stated in his pro se
    PCRA petition is that plea counsel failed to accurately apprise Appellant of
    his prior record score and erroneously advised him that any sentence of
    incarceration imposed in the case would run concurrently to the sentence he
    was then serving. Pro se PCRA Petition, 11/12/14, at 4.5 In his pro se and
    amended petitions and in his brief to this Court, Appellant avers that plea
    counsel’s failure to explain the ramifications of pleading guilty, as evidenced
    by Appellant’s questions to the court during the plea colloquy, proved that
    counsel provided ineffective assistance. Pro se PCRA Petition, 11/12/14, at
    4; Amended PCRA Petition, 4/29/15, at ¶ 3; Appellant’s Brief at 8.         The
    PCRA hearing focused on both contentions.       Appellant maintains that his
    detrimental reliance on information provided by counsel rendered his guilty
    plea unknowing and involuntary. Amended PCRA Petition, 4/29/15, at ¶ 7;
    Appellant’s Brief at 10. Our review of the complete record and of the notes
    of testimony from the PCRA hearing, in particular, dispels such conclusions
    and indeed, confirms the contrary.
    5
    Appellant also alleged that the public defender’s office failed to retain an
    independent sex offender evaluator. Pro se PCRA Petition, 11/12/14, at 4;
    Amended PCRA petition, 4/29/15, at ¶ 8. Testimony at the PCRA hearing
    established otherwise, however, and Appellant withdrew the allegation. N.T.
    (PCRA), 7/16/15, at 47.
    -7-
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    Appellant’s primary defense counsel, John R. Parroccini, the Public
    Defender of Warren County, and his assistant, Attorney Alan M. Conn, both
    testified at the PCRA hearing, as did Appellant.     Appellant admitted that
    initially, counsel’s identification of the applicable prior record score was
    dependent on Appellant’s own description of his prior record, and he
    neglected to reveal his felony adjudication when he was a juvenile because
    he did not believe “it follow[ed] you through adulthood.”       N.T. (PCRA),
    7/16/15, at 36, 59.   Attorney Conn explained that Appellant wrote to him
    “repeatedly regarding his prior record score [asking] if that could be
    changed.”   Id. at 24.   Attorney Parroccini testified that he explained the
    charges Appellant was facing and the possible sentences in detail, beginning
    at the preliminary hearing. Id. at 7. He advised Appellant that he could not
    “promise or guarantee any sentence. That, that’s entirely up to the Judge.”
    Id.   Attorney Parroccini negotiated the plea offer for Appellant, who was
    facing “six felony charges, . . . at least two felony one charges, each
    carrying mandatory minimum ten years.” Id. at 15, 16.6 Defense counsel
    assured Appellant at the plea colloquy “that he could certainly withdraw his
    plea or not plead guilty.” Id. at 9. In addition, at the plea colloquy, Public
    6
    In the pro se PCRA petition and in his brief, Appellant references the
    applicability of a mandatory minimum sentence. Pro se PCRA Petition,
    11/12/14, at 4; Appellant’s Brief at 10. The record reflects that the
    negotiated plea provided “that the Commonwealth agreed[] not to seek the
    mandatory minimum sentence,” N.T. (Guilty Plea), 4/12/13, at 3, and in
    fact, the court did not impose a mandatory sentence. Sentencing Order,
    10/8/13; Court Commitment,          12/11/13, at 1; N.T. (Sentence
    Reconsideration), 11/8/13, at 4; N.T. (PCRA), 7/16/15, at 10.
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    Defender      Parroccini   referenced   multiple   “face-to-face   meetings”   with
    Appellant and “at least six” items of correspondence “which go into great
    detail about the Sentencing Guidelines, about the options available to
    [Appellant], about the ramifications of or the consequences of entering a
    plea.” Id. at 17. The trial court credited counsels’ testimony. PCRA Court
    Opinion, 8/31/15, at 2.
    It is clear that the underlying issue lacks arguable merit.       The PCRA
    court determined that the record did not support Appellant’s claims.           N.T.
    (PCRA), 7/16/15, at 78. In addressing the issue, the PCRA court explained
    as follows:
    The Court found that trial counsel properly explained all of
    Appellant’s rights to him.      Both attorneys from the Public
    Defender’s Office explained that they employed their standard
    procedure in explaining Appellant’s rights to him. During Plea
    Court, Appellant had numerous questions regarding his rights.
    Trial counsel explained that he fully answered Appellant’s
    questions but Appellant did not like the answers. Trial counsel
    explained Appellant’s rights to him in face-to-face meetings and
    in correspondence including six letters that went into great detail
    regarding Appellant’s rights. Appellant refused to accept the
    explanations provided by trial counsel without confirmation by
    either his own research or the Court’s explanations. After the
    Court answered Appellant’s questions, then Appellant stated that
    trial counsel’s explanations were satisfactory and that trial
    counsel was competent and effective. Furthermore, Appellant
    stated at the Post-Conviction Relief Act Hearing that he chose to
    only inform trial counsel about his adult prior record because his
    review of law books led him to believe that a juvenile record
    would not impact his prior record score as an adult. Appellant
    cannot claim that trial counsel failed to explain the consequences
    of pleading guilty when he misled counsel about his prior record.
    The record shows that trial counsel properly explained
    Appellant’s rights to him and that the Court also explained his
    rights. Therefore, Appellant’s first claim must fail because there
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    was no merit to the claim and the result would not have been
    different.
    The Court found that trial counsel did not promise what
    sentence the Court would impose. Trial counsel explained that it
    is standard practice to explain to a defendant that counsel
    cannot promise a specific sentence. Trial counsel also explained
    that he could request a concurrent sentence but it was up to the
    discretion of the Court.    Additionally, Appellant misled trial
    counsel about his prior record after trial counsel explicitly
    explained that trial counsel could only explain the permissible
    sentencing ranges if trial counsel knew Appellant’s complete
    prior record. During Plea Court, Appellant answered that nobody
    made any promise to him to plea[d] guilty. There was no
    evidence that trial counsel failed to explain that there was no
    promise regarding what sentence the Court would impose.
    PCRA Court Opinion, 8/31/15, at 2–3 (internal citations to the record
    omitted).
    We conclude that Appellant’s issue lacks arguable merit.   Therefore,
    Appellant is not entitled to relief.
    Order affirmed. Petition for Leave to Withdraw as Counsel denied.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/15/2016
    - 10 -
    

Document Info

Docket Number: 1215 WDA 2015

Filed Date: 9/15/2016

Precedential Status: Precedential

Modified Date: 4/17/2021