Opinion
J-S43025-14 No. 3085 EDA 2013 No. 3086 EDA 2013
07-15-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. VERN TERRELL MADISON, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee v. VERNON T. MADISON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered September 30, 2013,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0002320-2009
Appeal from the PCRA Order entered September 30, 2013,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0003240-2009
BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD, JJ. MEMORANDUM BY ALLEN, J.:
Former Justice specially assigned to the Superior Court.
Vern Terrell Madison, aka Vernon T. Madison, ("Appellant"), appeals from the order denying his first petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. sections 9541-46. We affirm.
Appellant's convictions arose from his attempts to use counterfeit twenty-dollar bills at two local businesses. As a result, Appellant was charged with forgery and related crimes, and pled guilty at two separate docket numbers, No. 2320-2009 and No. 3240-2009. At each docket, the trial court sentenced Appellant to three to twenty-three months of incarceration, and a period of three-years of probation. These sentences were to run concurrently.
Appellant was subsequently paroled at both dockets. While on parole, Appellant was arrested for receiving stolen property. On June 21, 2010, Appellant pled guilty to receiving stolen property, and the trial court sentenced him to a period of three to twenty-three months of incarceration. On July 20, 2010, the trial court conducted a Gagnon II hearing with regard to dockets No. 2320-2009 and No. 3240-2009. The trial court recommitted Appellant to serve the entire balance of his term of incarceration at both dockets. The trial court further directed that, upon completion of ninety days, Appellant was to be re-paroled and serve the balance of his sentences on electronic monitoring.
On June 7, 2011, Chester City police arrested Appellant for possession of a controlled substance and related charges. On July 21, 2011, Appellant entered a guilty plea, and the trial court sentenced him to three to twenty-three months of incarceration. That same day, the trial court sentenced Appellant to a concurrent term of 683 days of incarceration, representing the remaining amount of parole owed in the prior three cases.
Appellant was once again paroled, and once again arrested for new drug charges, as well as for driving with a suspended license. On August 16, 2012, the trial court conducted a Gagnon II hearing as a part of a "fast-track plea." PCRA Court Opinion, 4/3/14, at 2. Appellant waived arraignment, pled guilty to possession on these latest charges, and the trial court sentenced him to an aggregate term of eleven and one-half to twenty-three months of incarceration. In addition, the trial court found that these offenses constituted violations of probation and parole at each of his prior cases. Pertinent to this appeal, the trial court, at No. 2320-2009 and No. 3240-2009, found that Appellant violated his parole, and imposed the unserved back time with immediate parole. The trial court further found a probation violation in each case and imposed consecutive sentences of eighteen to thirty-six months of incarceration.
Regarding his 2010 and 2011 convictions, the trial court revoked Appellant's parole and sentenced him to "full back time" with immediate parole. PCRA Court Opinion, 4/3/14, at 3.
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The PCRA court summarized the subsequent procedural history as follows:
[Trial counsel] advised this Court that it was not allowed to make the sentences for [No. 2320-2009 and No. 3240-2009] consecutive. He asserted that the sentence was "illegal." This Court disagreed and suggested that counsel take an appeal. At the end of the sentencing, counsel read [Appellant] his post-sentence and appeal rights and advised this Court that he would be taking an appeal.PCRA Court Opinion, 4/3/14, 3-4 (citations omitted). This timely appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
On August 23, 2012, [trial counsel] filed a Motion for Reconsideration in which he argued that it was "illegal" to make the sentences for [No. 2320-2009 and No. 3240-
2009] consecutive. This Court denied that motion. [Appellant] did not file an appeal.
Instead, [trial counsel] wrote to [Appellant] and advised that because of a "change in the law," [the trial court] was allowed to make concurrent sentences consecutive. [Trial counsel] suggested that he may have been ineffective by failing to object to [the] change in sentences without a full hearing, by failing to object to the denial of [Appellant's] "due process" rights, by failing to make a better argument, by failing to object on the ground that the [trial court] had not formally announced any adequate reasons for changing the sentence, and by failing to request a continuance. [Trial counsel] stated that he was caught "off guard" and rendered "speechless," so that he did not think of various other objections that may have been available. He suggested that [Appellant] file a PCRA petition.
Appellant filed a pro se PCRA petition in which he alleged five acts and omissions that constituted a deprivation of the right to effective assistance of counsel. This Court appointed [PCRA counsel], who filed an Amended PCRA petition, in which he alleged that, at the [August 16, 2012] hearing, [trial counsel] should have objected to the sentence, advised [Appellant] to withdraw the guilty plea, or requested a hearing on the Gagnon matters. [PCRA counsel] requested an evidentiary hearing.
On August 16, 2013, this Court conducted a PCRA hearing. Although [Appellant] was in the courthouse lockup, he asked to be excused. [PCRA counsel] introduced into evidence the September 21, 2012 letter from [trial counsel] to [Appellant]. [PCRA counsel] made no argument on behalf of [Appellant]. The Assistant District Attorney merely asserted that [Appellant] had not made out his burden of proof. This Court denied the petition.
Appellant raises the following issue:
I. WHETHER OR NOT THE [PCRA] COURT WAS IN ERROR IN DENYING [APPELLANT'S PCRA] PETITION AND THE ALLEGED INEFFECTIVENESS OF TRIAL COUNSEL IN THAT HE DID NOT OBJECT AND/OR ADVISE [APPELLANT] TO REQUEST EITHER A CONTINUANCE OR TO PROCEED WITH TESTIMONY AS TO THE SCHEDULED GAGNON II HEARING.Appellant's Brief at 4.
In reviewing the propriety of an order granting or denying PCRA relief, an appellate court is limited to ascertaining whether the record supports the determination of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great deference to the findings of the PCRA court, "but its legal determinations are subject to our plenary review." Id. Moreover, to be entitled to relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence that the conviction or sentence arose from one or more of the errors enumerated in section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness of counsel.
To obtain relief under the PCRA premised on a claim that counsel was ineffective, a petitioner must establish by a preponderance of the evidence that counsel's ineffectiveness so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Id. "Generally, counsel's performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner." Id. This requires the petitioner to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice" requires the petitioner to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. In assessing a claim of ineffectiveness, when it is clear that appellant has failed to meet the prejudice prong, the court may dispose of the claim on that basis alone, without a determination of whether the first two prongs have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).
The PCRA court found no merit to Appellant's claim, and reasoned as follows:
The Superior Court should affirm the dismissal because [trial counsel's] representation was effective. PCRA counsel first alleges that [trial counsel] "did not object" to the sentence. However, the transcript demonstrates that [trial counsel] objected to the sentence both because the sentence was illegal and also because [Appellant] entered into a "negotiated guilty plea." [N.T., 8/16/12, at 25.] That passage can be interpreted in two ways. If he was arguing that this Court was bound by the sentence imposed in 2009 pursuant to the negotiated plea, he was wrong. When [Appellant] committed subsequent offenses while on probation, he violated the terms of that probation. The relevant statute, 42 Pa.C.S. § 9771, provides that upon revocation, the sentencing alternativesPCRA Court Opinion, 4/3/14, at 7-9.
available to the court shall be the same as were available at the time of initial sentencing. Therefore, this Court was at liberty to make the sentences consecutive rather than concurrent.
If, on the other hand, he was arguing that he had made a deal with the prosecution concerning the disposition of the Gagnon II hearing, he was also wrong. The Assistant District Attorney noted that the probation violation was not part of the "negotiated pleas." [ Id. at 26.] Rather, the probation department had made recommendations, which were not binding upon the Court. Indeed, at the outset of the hearing, [trial counsel] represented to the Court that [Appellant] "is in agreement with the recommendations of his probation violation as well as the negotiations made for his guilty plea here today." [ Id. at 4 (emphasis added).] The sentences for [the 2012 charges] were subject to negotiation. If the Court declined to impose them, then [Appellant] could withdraw his guilty plea and go to trial. The recommendations made by the probation department for an appropriate sentence for [Appellant's] probation violations were, on the other hand, just that— recommendations. The Court was not bound by them. The probation violation was not part of the "negotiated pleas." [ Id. at 26.]
PCRA counsel also argues that [trial counsel] failed to "advise [Appellant] to request either a continuance or to proceed with testimony as to the scheduled Gagnon II hearing. [Statement of Matters Complained of on Appeal.] If [trial counsel] had requested a continuance, this Court would not have granted one. The only purpose would have been to prepare additional arguments in support of the proposition that this Court should not have made the sentences consecutive. This Court is convinced that consecutive sentences were necessary to "vindicate the authority of the court" and to deter [Appellant] from committing other crimes. 42 Pa.C.S. § 9771.
This Court cannot see how "testimony as to the scheduled Gagnon II hearing" might have benefitted [Appellant]. At the PCRA hearing, [PCRA counsel] did not suggest what testimony, if any, might have been introduced. [Trial counsel] did not appear in person to suggest what evidence he might have offered. [Appellant]
has, therefore, waived his argument that [trial counsel] was ineffective for failing to introduce testimony.
Our review of the record, including the brief PCRA hearing, and trial counsel's letter to Appellant, support the PCRA court's conclusions. In support of his claim on appeal, Appellant argues:
The [PCRA court] writes in its Opinion that just because [trial counsel] labels his services as ineffective does not make it so. [After a] review of the [tripartite test for ineffectiveness], it is respectfully submitted that through the words and actions of [trial counsel], [Appellant] should prevail on his claim of ineffectiveness. Trial Counsel made a mistake, recognized it and forthrightly advised [Appellant] that he was in error and that [Appellant] should file a [PCRA] Petition. It is respectfully submitted that the [PCRA court] should not have denied same.Appellant's Brief at 11. Because Appellant has failed to develop his claim further, we consider it waived. See Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007) (holding that undeveloped claims will not be considered on appeal); see also Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981) (stating that a defendant may not argue ineffectiveness in vacuum).
Even absent waiver, the above discussion by the PCRA court refutes Appellant's glib characterization of the court's reasons for denying post-conviction relief. A review of the record readily reveals that Appellant was given multiple occasions to demonstrate his ability to avail himself of the probationary sentences. The fact that he repeatedly failed to do so, as acknowledged by the PCRA court, established that any sentencing alternative short of incarceration would not deter Appellant from future criminal conduct.
In sum, Appellant's claim of ineffectiveness is undeveloped and otherwise without merit. We thus affirm the PCRA court's order denying post-conviction relief.
Order affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary