Com. v. Dukeman

• Decision Date: 26 March 1992
• Citation: 413 Pa.Super. 397,605 A.2d 418
• Parties: COMMONWEALTH of Pennsylvania v. Clyde Walter DUKEMAN, Appellant.
• Court: Pennsylvania Superior Court

Page 418

605 A.2d 418

413 Pa.Super. 397

COMMONWEALTH of Pennsylvania v. Clyde Walter DUKEMAN, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 21, 1992.

Filed March 26, 1992.

Clyde W. Dukeman, pro se.

Henry S. Kenderdine, Jr., Dist. Atty., Lancaster, for Com., appellee.

Before ROWLEY, President Judge, and BECK and HESTER, JJ.

HESTER, Judge:

This is an appeal from an order denying appellant's second petition for post-conviction relief. Concurrent with the brief he has filed, counsel appointed to represent appellant has filed a petition to withdraw based upon his determination that the appeal is wholly frivolous. Appellant, Clyde Dukeman, has filed a pro se supplemental brief. We grant counsel's petition to withdraw and affirm the order denying PCRA relief.

On July 15, 1987, appellant was arrested by the Pennsylvania State Police and charged with possession of drug paraphernalia, possession of cocaine with intent to deliver, and conspiracy. The charge of conspiracy was dismissed, and the remaining charges were held for court. Following a hearing on January 12, 1988, the trial court denied a motion to suppress, and the matter proceeded to a jury trial. The jury determined that appellant was guilty of the described charges on January 13, 1988. Timely-filed post-verdict motions were denied on July 20, 1988, and a pre-sentence report was ordered. On September 20, 1988, appellant was sentenced to three to ten years imprisonment for delivery of cocaine, a consecutive sentence of one year probation for possession of drug paraphernalia, and ordered to pay a fine and to make restitution. Appellant filed a timely motion to modify sentence which was denied on February 6, 1989. No direct appeal was filed.

On December 19, 1988, appellant filed his first pro se petition pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, alleging the ineffectiveness of trial counsel for failing to file a motion to dismiss charges pursuant to Pa.R.Crim.P. 1100. Following the appointment of counsel, the petition was dismissed without a hearing on February 23, 1989. On March 23, 1989, appellant filed a notice of appeal to this court. We affirmed on December 20, 1989. Commonwealth v. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989) (allegation of ineffective assistance of counsel for failure to file a motion to dismiss pursuant to Pa.R.Crim.P. 1100 not cognizable under PCRA).

Appellant filed a second pro se petition under the PCRA on May 22, 1990. Present counsel was appointed to represent him. On November 26, 1990, the petition was dismissed without a hearing, and this appeal followed. Counsel for appellant presently seeks to withdraw.

If counsel for a criminal defendant, in the exercise of his professional judgment, determines that issues raised under the PCRA are meritless and the PCRA court concurs, counsel may withdraw on collateral appeal of a conviction. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). The PCRA petitioner then may proceed pro se, by privately retained counsel, or not at all. Id. The Turner court approved the following procedure for withdrawal of counsel on collateral appeal: the filing of a "no-merit" letter by counsel detailing the nature and extent of counsel's review and listing each issue appellant wished to raise, with counsel's explanation why the issues are meritless, and an independent review by the court.

In the present case, counsel substantially complied with the above requirements. He has detailed the nature and extent of his review, and he has listed the issues raised in the PCRA petition. While he has not explained why the issues are meritless individually, he has asserted that based upon his review of the record, the issues have been litigated previously or waived and do not constitute a prima facie showing that a miscarriage of justice may have occurred. Cf. Commonwealth v. Harris, 381 Pa.Super. 206, 553 A.2d 428 (1989) (although counsel failed to detail the extent of his review of the record in his petition to withdraw or to list properly the issues the appellant desired to raise, counsel was permitted to withdraw because the defects in the petition prejudiced only administrative interests). Moreover, counsel notified appellant of the filing of the petition to withdraw, supplied him with a copy of the petition, and notified appellant of his right to obtain private counsel, to proceed pro se, and to file a supplemental brief.

On March 11, 1991, appellant filed a pro se supplemental brief in which he addressed the issues delineated in his PCRA petition and requested new counsel if present counsel is permitted to withdraw. However, it is clear that Commonwealth v. Maple, 385 Pa.Super. 14, 559 A.2d 953 (1989), precludes further appointment of counsel.

Appellant raises the following issues for our review: 1) Miranda rights were violated, 2) entrapment, 3) identification, 4) Rule 1100, and 5) sentencing. Applying the Supreme Court's pronouncement in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), we recently addressed serial petitions under the PCRA in Commonwealth v. Ryan, 394 Pa.Super. 373, 376, 575 A.2d 949, 950-51 (1990), stating:

Initially, we note that since this is appellant's second petition for post-conviction relief, it "will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred." Commonwealth v. Lawson, 519 Pa. 504, 513, 549 A.2d 107, 112 (1988); see also Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989) (applying Lawson standard of review to second or subsequent petitions filed under the PCRA). This standard is met if the petitioner can demonstrate either that the proceedings resulting in his conviction were so unfair that a miscarriage of justice which no civilized society can tolerate occurred or that he is innocent of the criminal charges.

Concurrent with our analysis pursuant to Lawson, we must address appellant's eligibility for relief under the provisions of the Post-Conviction Relief Act. 42 Pa.C.S. § 9543 controls appellant's eligibility for relief under the PCRA and lists four factors which must be met before such relief may be granted. We examine the third factor first:

(a) General rule.--To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:

....

3) That the allegation of error has not been previously litigated and one of the following applies:

(i) The allegation of error has not been waived.

(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.

(iii) If the allegation of error has been waived, the waiver of the allegation or error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.

42 Pa.C.S. § 9543(a). Since this is appellant's second PCRA petition, Commonwealth v. Ryan, supra, makes it clear that 42 Pa.C.S. § 9543(a)(1)(iii) does not apply. We stated in Ryan:

In the present case, appellant could have raised all of the issues presented herein in his prior PCHA petition. Accordingly, the issues have been waived under section 9544. The waiver in this instance results from appellant's failure to raise the issues in his prior post-conviction proceedings. Since the waiver was not during pretrial, trial, post-trial or direct appeal proceedings, section 9543(a)(3)(iii) is not applicable. Accordingly, appellant has waived the issues presented herein unless 9543(a)(3)(ii) applies.

Id., 394 Pa.Super. at 378, 575 A.2d at 951. Thus, we must determine whether 42 Pa.C.S. § 9543(a)(3)(ii) applies to the issues raised.

Appellant's claims that prior counsel were ineffective ¹ for failing to raise issues concerning entrapment and identification allege, on their face, that appellant was innocent of the crimes charged. Thus, as to these two issues, appellant has overcome the bar of waiver pursuant to 42 Pa.C.S. § 9543(a)(3)(ii). Furthermore, since the allegations relate to innocence, the Lawson standard is overcome. However, appellant's claim that his Miranda rights were violated is not an issue which relates to his innocence; ² thus, it is waived. Similarly, as appellant's claim that his sentence was excessive ³ is not an issue that relates to appellant's innocence, it is waived. Finally, appellant's claim relating to Pa.R.Crim.P. 1100, which he raised in his first PCRA petition and which was disposed of by this court in Commonwealth v. Dukeman, supra, has been litigated previously. 42 Pa.C.S. § 9544. Thus, we may not address this issue herein.

Finally, we determine whether appellant's remaining two claims, entrapment and identification, are cognizable under § 9543(a)(2) of the PCRA, which also limits appellant's eligibility for relief. That section provides that a PCRA petitioner must plead that his conviction resulted from one or more of eight circumstances. Section 9543(a)(2)(ii) provides that a PCRA petitioner may be eligible for relief if the conviction resulted from ineffective assistance of counsel which so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. We previously stated that we will overlook the fact that appellant has not framed his issue as having resulted from the ineffective assistance of counsel. See n. 1 supra. We believe that appellant's claims concerning entrapment and identification facially raise claims that undermine the truth-determining process and thus are cognizable. Commonwealth v. Pitts, 397 Pa.Super. 387, 580 A.2d 352 (1990) (allegation that trial counsel was ineffective for failing to present self-defense and voluntary intoxication defense relates to truth-determining process); see also Commonwealth v. Thomas, 396 Pa.Super. 92, 578 A.2d 422 (1990) (...