J-S62027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

JOSEPH L. PARNES,

                           Appellant                  No. 2854 EDA 2013


               Appeal from the PCRA Order of September 18, 2013
                In the Court of Common Pleas of Delaware County
               Criminal Division at No(s): CP-23-CR-0000407-2012

BEFORE: ALLEN, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                           FILED OCTOBER 08, 2014

      Appellant, Joseph L. Parnes, appeals from the order entered on

September 18, 2013, denying his petition filed under the Post-Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The factual background of this case is as follows.      On December 2,

2011, Appellant slashed the tire of a vehicle owned by Martin Tallent

("Tallent").    After Tallent called police, Appellant threated to stab Tallent,

throw him down the stairs, and beat him to within an inch of his life.

      The procedural history of this case is as follows.      On December 3,

2011, Appellant was charged via criminal complaint with making terroristic

threats, criminal mischief, and harassment. A criminal information charging

those same offenses was filed on February 16, 2012. On March 22, 2012,

pursuant to a plea agreement, Appellant pled guilty to making terroristic
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threats and criminal mischief. In return for his plea, the harassment charge

was dismissed. Appellant was immediately sentenced to an aggregate term

of three years of probation. Appellant did not file a direct appeal.

      On February 15, 2013, Appellant filed a counseled PCRA petition. An

evidentiary hearing was held on August 9, 2013. On September 18, 2013,

the PCRA court denied Appellant’s petition.        Appellant timely appealed.

Appellant’s privately retained counsel then sought leave from this Court to

withdraw from representing Appellant.      We granted counsel’s request and

remanded for a determination of whether Appellant was entitled to court-

appointed counsel. On February 12, 2014, the PCRA court determined that

Appellant was not entitled to appointed counsel.      Appellant then retained

new counsel who complied with the PCRA court’s order to file a concise

statement of errors complained of on appeal.          See Pa.R.A.P. 1925(b).

Appellant’s lone issue on appeal was included in his concise statement.

      Appellant presents one issue for our review:

      Whether the decision of the [PCRA court, denying] Appellant’s
      PCRA petition, constituted abuse of discretion and error of law,
      where Appellant’s trial counsel failed to adequately and
      effectively explore Appellant’s admission into [] Accelerated
      Rehabilitative Disposition (“ARD”) [], where there was a
      reasonable probability that proper application and review by the
      District Attorney would have culminated in Appellant’s admission
      into [] ARD[?]

Appellant’s Brief at 4 (quotation marks added).

      “Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s findings of fact, and whether the PCRA


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court’s determination is free of legal error.” Commonwealth v. Wantz, 84

A.3d 324, 331 (Pa. Super. 2014) (citation omitted). “The scope of review is

limited to the findings of the PCRA court and the evidence of record, viewed

in the light most favorable to the prevailing party at the trial level.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).

      Appellant’s claim relates to the purported ineffectiveness of his trial

counsel.    A “defendant’s right to counsel guaranteed by the Sixth

Amendment to the United States Constitution and Article I, [Section] 9 of

the Pennsylvania Constitution is violated where counsel’s performance so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Commonwealth v. Simpson,

66 A.3d 253, 260 (Pa. 2013) (internal quotation marks and citation

omitted). “Trial counsel is presumed to be effective.” Commonwealth v.

Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014) (citation omitted).


      In order to overcome the presumption that counsel was effective,

Appellant must establish that “(1) the 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 client’s interests; and (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the proceedings would have been different.” Commonwealth v. Luster,

71 A.3d 1029, 1039 (Pa. Super. 2013) (en banc), appeal denied, 83 A.3d

414 (Pa. 2013) (internal alterations, quotation marks, and citation omitted).


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The petitioner bears the burden of proving his counsel was ineffective. See

Commonwealth v. Williams, 980 A.2d 510, 520 n.12 (2009). “A failure to

satisfy any one of the three prongs of the test for ineffectiveness requires

rejection of the claim.” Commonwealth v. Ly, 980 A.2d 61, 73 (Pa. 2009).


      Appellant argues that his trial counsel was ineffective for failing to

pursue ARD.      We conclude that Appellant has failed to prove the requisite

prejudice to establish a claim of ineffective assistance of counsel. “It is well-

established . . . that district attorneys have the sole discretion in moving for

admission of a defendant into ARD[.]” Commonwealth v. LaBenne, 21

A.3d 1287, 1291 (Pa. Super. 2011) (citation omitted).              James Miller

(“Miller”), the supervisor of the district attorney unit responsible for

screening applicants for admission into ARD, testified at the PCRA hearing

that when a victim is opposed to ARD, the defendant “certainly [does not]

get ARD.”    N.T., 8/9/13, at 51.    He further testified that if the assistant

district attorney assigned to a case states that he or she is adamantly

opposed to an individual receiving ARD, and his or her reasons are sensible,

the defendant would not be permitted to participate in ARD. See id. at 53.

The PCRA court found Miller’s testimony credible. See PCRA Court Opinion,

5/14/14, at 5.


      Trial counsel testified at the PCRA hearing that he discussed the

possibility of ARD with the assistant district attorney assigned to the case.



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When ARD was discussed, the assistant district attorney gave a “categorical

no.” N.T., 8/9/13, at 63. The assistant district attorney told trial counsel

that “they were taking [the case] very seriously” because of prior charged

and uncharged disputes involving Appellant. Id. at 65. The district attorney

also stated “that the victims were opposed to any kind of ARD[.]” Id. at 66.

Based upon Miller’s and trial counsel’s testimony, the PCRA court concluded

that any failure of trial counsel to apply formally for ARD on behalf of

Appellant was not prejudicial.     PCRA Court Opinion, 5/14/14, at 5.       It

concluded that even if trial counsel would have formally applied to the

district attorney’s office, the request for ARD would have been denied. See

id.


      The PCRA court’s conclusion is clearly supported by the record. Miller

testified that, if the assistant district attorney assigned to the case had a

sensible reason for objecting to a defendant receiving ARD, then his office

would not approve an application for ARD. The assistant district attorney’s

reasoning for opposing ARD for Appellant, his history of charged and

uncharged behavior, was clearly sensible.      Likewise, Miller testified that

when a victim opposes ARD his office does not approve a defendant’s ARD

application.   The assistant district attorney stated that the victims in this

case opposed ARD. Accordingly, we agree with the PCRA court that even if

Appellant had applied for ARD he would have been rejected.




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      Although it is clear that Appellant would not have received ARD had he

applied, we consider whether such a denial would have been an abuse of

discretion. If the district attorney’s denial was an abuse of discretion, then

trial counsel had an obligation to apply for ARD, and then file an appropriate

motion with the trial court if the application were denied.


      Appellant, relying upon Commonwealth v. Kiehl, 509 A.2d 1313 (Pa.

Super. 1986), argues that the district attorney cannot summarily reject a

person for ARD consideration.      Appellant’s Brief at 14.     However, Kiehl

articulates that a district attorney must have a reason for rejecting an

individual’s application for ARD instead of stamping each application denied

without considering the facts of each case. See Commonwealth v. Lutz,

495 A.2d 928, 934–935 (Pa. 1985). As noted above, Miller stated that he

requires assistant district attorneys who oppose ARD to state the reason for

their opposition. This shows that the district attorney does not summarily

reject ARD applications but rejects them based upon policy decisions after

case-by-case consideration. It is not for this Court to second-guess those

policy decisions. See id.


      As this Court has explained:


      [A]bsent an abuse of [the district attorney’s] discretion involving
      some criteria for admission to ARD wholly, patently and without
      doubt unrelated to the protection of society and/or the likelihood
      of a person’s success in rehabilitation, such as race, religion[,] or
      other such obviously prohibited considerations, the attorney for


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      the Commonwealth must be free to submit a case or not submit
      it for ARD consideration based on his view of what is most
      beneficial for society and the offender.



Commonwealth v. Corrigan, 992 A.2d 126, 130 (Pa. Super. 2010)

(emphasis removed; citation omitted).


      As Appellant correctly notes, it would be an abuse of discretion for the

district attorney to blindly follow the recommendation of an outside

individual, like the victim. See Commonwealth v. Pypiak, 728 A.2d 970,

973 (Pa. Super. 1999). However, in this case the evidence was clear that

even if the victim had not opposed ARD, Appellant would not have received

ARD because of his prior charged and uncharged conduct. This was based

upon the district attorney’s own review of the record, and not based upon

the outside recommendation of any individual. Appellant’s prior charged and

uncharged conduct clearly relates to what is most beneficial for both society

and Appellant. Therefore, it would not have been an abuse of discretion on

the part of the district attorney to deny Appellant's request for ARD. Thus,

even if trial counsel had requested ARD, the district attorney would have

denied Appellant’s request and the trial court could not compel the district

attorney to accept Appellant’s application.   Accordingly, any failure by trial

counsel to file a formal application for ARD did not prejudice Appellant.




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      Finally, Appellant argues that the Delaware County District Attorney’s

amended policies with respect to consideration of ARD applications should

apply retroactively. Appellant correctly notes that an appellant will normally

be given the benefit of a change in the law while his direct appeal is

pending. Appellant, however, confuses a direct appeal with an appeal from

the denial of a petition for collateral review.   A direct appeal is one taken

from the judgment of sentence -- it is not an appeal taken from an order

denying PCRA relief (as in the present case).          Except in very limited

circumstances not implicated in this case, an appellant is not afforded the

retroactive effect of a change in the law when that change occurs after his

judgment of sentence becomes final. Therefore, Appellant’s reliance on the

Delaware County District Attorney’s amended policies with respect to

consideration of ARD is misplaced.


      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/8/2014




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