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HomeMy WebLinkAbout99-0171 CriminalCOMMONWEALTH V. DANIEL BLAINE KUHN OTN: F271946-3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-0171 CRIMINAL TERM IN RE: DEFENDANT'S POST CONVICTION RELIEF ACT PETITION BEFORE OLER, J. ORDER OF COURT AND NOW, this 2. ~ ~ day of March, 2001, upon consideration of Defendant's petition under the Post Conviction Relief Act, and for the reasons stated in the accompanying opinion, the petition is granted to the extent that Defendant shall be permitted to file an appeal from the judgment of sentence herein, challenging the legality of the sentence imposed, within 30 days of the date of this order. BY THE COURT / /~esley O~.J~., f. ~ Jaime Keating, Esq. Chief Deputy District Attorney Jason P. Kutulakis, Esq. Suite 204 8 South Hanover Street Carlisle, PA 17013 Court-appointed Attorney for Defendant COMMONWEALTH V. DANIEL BLAINE KUHN OTN: F271946-3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-0171 CRIMINAL TERM IN RE: DEFENDANT'S POST CONVICTION RELIEF ACT PETITION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., March 2, 2001. In this criminal case, Defendant, Daniel Blaine Kuhn, pleaded guilty to a charge of burglary in 1999, in return for the Commonwealth's abandonment of various additional charges, including unauthorized use of a motor vehicle.~ He received a mitigated range sentence2 of not less than three years nor more than seven years in a state correctional institution, on June 22, 1999.3 No direct appeal 4 was filed from the judgment of sentence. For disposition at this time is a petition filed by Defendant under the Post Conviction Relief Acts on May 15, 2000. The petition contended, inter alia, that Defendant's right to adequate representation of counsel had been abridged, by reason of his attorney's failure to file an appeal from the judgment of sentence.6 A hearing on Defendant's petition was held on August 9, 2000. For the reasons stated in this opinion, the petition will be granted to permit Defendant to file a direct appeal nunc pro tunc challenging the legality of his sentence. ~ See Information; N.T. 1-5, Guilty Plea Colloquy, May 3, 1999. 2 See Commonwealth's Exhibit 1 (presentence investigation report), Hearing on Defendant's Post Conviction Relief Act Petition, August 9, 2000. 3 Order of Court, June 22, 1999. 4 N.T. 14, Hearing on Defendant's Post Conviction Relief Act Petition, August 9, 2000 (hereinafter N.T. , PCRA Hearing). 5 Act of May 13, 1982, P.L. 417, as amended, 42 Pa. C.S. {}{}9541 etseq. 6 Defendant's Motion for Post Conviction Collateral Relief, at 3. STATEMENT OF FACTS As the result of an incident that occurred in the Borough of Carlisle, Cumberland County, Pennsylvania, on December 22, 1998, Defendant was charged with one count of burglary, two counts of theft by unlawful taking or disposition, one count of criminal mischief, one count of criminal trespass, and one count of unauthorized use of a motor vehicle.7 He pled guilty to the burglary charge, a felony of the first degree, on May 3, 1999.8 Defendant was sentenced on June 22, 1999, to undergo imprisonment in a state correctional institution for a period of not less than three years nor more than seven years.9 This sentence was at the bottom of the mitigated range of 36 to 48 months under the sentencing guidelines,l° A motion to modify sentence was filed on behalf of Defendant on July 2, 1999,ii and denied on July 9, 1999.12 No direct appeal was filed from the judgment of sentence.~3 On May 15, 2000, Defendant filed a petition under the Post Conviction Relief Act.TM By order dated May 23, 2000, the court appointed Jason P. Kutulakis, Esq., to represent Defendant and scheduled a hearing on the petition for Wednesday, August 9, 2000. At the hearing, Defendant limited the issue for disposition by the court to whether his appellate rights should be reinstated for purposes of challenging his 7 Criminal Complaint, filed January 1, 1999. 8 N.T. 1-5, Guilty Plea Colloquy, May 3, 1999. 9 Order of Court, June 22, 1999. ~o See Commonwealth's Exhibit 1 (presentence investigation report), Hearing on Defendant's Post Conviction Relief Act Petition, August 9, 2000. 2~ Defendant's Postsentence Motion. 22 Order of Court, July 9, 1999 (Hoffer, P.J.). 23 N.T. 14, PCRA Hearing. 24 Defendant's Motion for Post Conviction Collateral Relief, filed May 15, 2000; see Act of May 13, 1982, P.L. 417, as amended, 42 Pa. C.S. §§9541 etseq. 2 Q A Court. O sentence because of his former counsel's failure to file a direct appeal in this regard after he had requested her to do so.~5 He testified as follows: Q Did [your former counsel] advise you that you had a right to appeal the judge's denying your motion? A I wanted to appeal it. Q You did want to appeal it? A Yeah. Did you have that conversation with your attorney? I wrote her a letter- Okay. -- stating that I wanted to appeal it to Superior And did she file an appeal for you? A No.16 With respect to this issue, his former counsel testified that, after a motion for modification of sentence had proven unsuccessful, Defendant had said that he wanted to appeal the sentence on the ground that it was an illegal sentence: Q You said he wrote you a letter asking you to appeal this case. He actually did that; is that correct? A Yes .... [H]e said he wanted to have the sentence appealed because it was an illegal sentence .... Q ... When was it that he asked you to appeal? A I believe it was in the letter that I got, sometime in early August of '99. Q Was it still within the 30 days from July 9th?~8 A Yes .... I believe it was August the 3rd. is N.T. 10-11, PCRA Hearing. 16 N.T. 14, PCRA Hearing. ~7 N.T. 20, PCRA Hearing. ~8 N.T. 28, PCRA Hearing. 3 Q Was that when you received it? A ... The last letter I received was mailed out August the 6th, and there is no stamp from my office when that letter was received. It just has a post mark from Camp Hill. Mr. Kuhn was still housed at S.C.I.C, and it is dated August the 6th. I don't know -when exactly my office would have received it. Q ... Do you know when the first communication from him was that asked you to appeal? A I believe that was the first.~9 Q [W]hat was your response to that letter? A The letter that I wrote to him saying that his sentence was not illegal .... Q And your letter was sent to him when? A August the 17th, 1999.20 Q [I]n your mind, was there any valid legal basis to file an appeal based on a legal sentence ...? A No. Q That would have been frivolous on your part? A Well, the illegal sentence part, ... it just was not true. It was not an illegal sentence. So I would not file it based on that.21 Defendant did not reiterate his request that his former counsel challenge the legality of his sentence.on appeal, after receiving her letter of August 17, 1999.22 On the other hand, by this time the period for filing a direct appeal had elapsed. 19 N.T. 28, PCRA Hearing. 20 N.T. 29, PCRA Hearing. 2~ N.T. 20-21, PCRA Hearing. 22 N.T. 29, PCRA Hearing. In recounting the evidence from the Post Conviction Relief Act hearing, the court has not included evidence relating to issues not being pursued by Defendant. 4 DISCUSSION Statement of Law Ineffective assistance of counsel--general rule. "It is by now axiomatic that a defendant in a criminal case is entitled to effective representation .... " Commonwealth v. Collins, 519 Pa. 58, 63, 545 A.2d 882, 885 (1988). With respect to a claim of ineffective assistance, however, "Pennsylvania courts presume that an accused's counsel is effective and place the burden of proving ineffectiveness on the convicted defendant." Packel & Poulin, Pennsylvania Evidence 148 (2d ed. 1999). The Pennsylvania Supreme Court has stated the general rule for an analysis of a claim of ineffective counsel as follows: The petitioner must ... show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place. This requires the petitioner to show: (1) that the claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and, (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). In general, "counsel cannot be found ineffective for failing to follow a futile course of action .... "Commonwealth v. Schultz, 707 A.2d 513, 517 (Pa. Super. Ct. 1997). Normally, an attorney's decision not to pursue a frivolous issue does not constitute inadequate representation. See Commonwealth v. Harvey, 365 Pa. Super. 296, 526 A.2d 516, 517(1987). Failure of counsel to file appeal requested by defendant. With respect to an attorney's failure to file a direct appeal in a criminal case if requested to do so by the defendant, the Pennsylvania Supreme Court has set forth a special rule as follows: [W]e hold that, where there is an unjustified failure to file a requested direct appeal, the conduct of counsel falls beneath the range of competence demanded of attorneys in criminal cases, denies the accused the assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, as well as the right to direct appeal under Article V, Section 9 and constitutes prejudice for purposes of Section 9543(a)(2)(ii) [of the Post Conviction Relief Act]. Therefore, in such circumstances, and where the remaining requirements of the PCRA are satisfied, the petitioner is not required to establish his innocence or demonstrate the merits of the issue or issues which would have been raised on appeal. Commonwealth v. Lantzy, 558 Pa. 214, 226-27, 736 A.2d 564, 572 (1999). Application of Law to Facts In this case, it appears that Defendant probably did request his former counsel to file a direct appeal challenging the legality of his sentence, prior to the expiration of the time for taking such an appeal. The rule that an inquiry into the merits of a requested appeal is not to be undertaken when collateral relief is sought under such circumstances is obviously premised upon the principle that an appeal of right is not subject to forfeiture merely because the prospect of success is lacking. For these reasons, the following order will be entered: ORDER OF COURT AND NOW, this 2nd day of March, 2001, upon consideration of Defendant's petition under the Post Conviction Relief Act, and for the reasons stated in the accompanying opinion, the petition is granted to the extent that Defendant shall be permitted to file an appeal from the judgment of sentence herein, challenging the legality of the sentence imposed, within 30 days of the date of this order. BY THE COURT, /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Jaime Keating, Esq. Chief Deputy District Attorney Jason P. Kumlakis, Esq. Suite 204 8 South Hanover Street Carlisle, PA 17013 Court-appointed Attorney for Defendant 7