J-S34023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CORBIN JACOB STONE                       :
                                          :
                   Appellant              :    No. 1663 WDA 2018

           Appeal from the PCRA Order Entered October 16, 2018
   In the Court of Common Pleas of Somerset County Criminal Division at
                     No(s): CP-56-CR-0000891-2015


BEFORE:   DUBOW, J., McLAUGHLIN, J., and COLINS*, J.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED OCTOBER 4, 2019

     Corbin Jacob Stone appeals pro se from the order dismissing his petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Stone asserts his PCRA counsel was ineffective. We affirm.

     The PCRA court summarized the underlying facts as follows:

           On October 22, 2015, [Stone] and a companion were
     traveling back to Somerset County on State Route 31 after
     attending a concert in Morgantown, West Virginia. As operator of
     the vehicle, [Stone] was driving without a license and with a blood
     alcohol concentration (“BAC”) of .173% According to witness
     accounts, prior to striking the victims’ vehicle, [Stone] was driving
     recklessly and passing other vehicles at speeds in excess of 90
     miles per hour. [Stone] struck the victims’ vehicle head-on while
     driving in the opposite lane of traffic, resulting in both victims
     suffering devastating, life-altering injuries. Prior to this incident,
     [Stone] had an extensive prior record of D.U.I. and drug-related
     offenses.

           On July 14, 2016, [Stone] pled guilty to aggravated assault
     by vehicle while D.U.I., 75 Pa.C.S.A. § 3735.1(a); accidents
     involving personal injury while not properly licensed, 75 Pa.C.S.A.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       § 3742.1; and D.U.I., 75 Pa.C.S.A. § 3802[(c)]. [Stone] and his
       [trial] counsel . . . requested that a full pre-sentence investigation
       be prepared for the [c]ourt’s use in fashioning a sentence. On
       October 3, 2016, [Stone] was sentenced to an aggregate 8 to 16
       years in a State Correctional Facility. In sentencing [Stone]
       outside of the recommended ranges of the Sentencing Guidelines,
       this Court provided the following reasons for the aggravated
       sentence: (1) the extremely reckless manner in which [Stone]
       operated his vehicle at the time of the accident; (2) the
       devastating physical and emotional injuries the victims suffered
       as a result of [Stone]’s recklessness; and (3) [Stone]’s lengthy
       past record of D.U.I. and drug-related offenses beginning in 2002.

PCRA Ct. Mem., 10/16/18, at 1-2 (citations to the record omitted). Stone did

not file a direct appeal.

       Stone filed a timely pro se PCRA petition on November 2, 2017,1

claiming he was deprived of his right to effective assistance of counsel. Stone

asserted his trial counsel had failed to raise at sentencing that the victims’ car

had dangerous, deficient airbags that were the subject of pending federal

litigation; generally failed to investigate and present mitigation evidence at

sentencing; and failed to challenge the court’s calculation of Stone’s prior

record score on the basis that it erroneously included two non-judgment

dispositions.


____________________________________________


1Stone’s judgment of sentence became final 30 days after he was sentenced
and failed to file a direct appeal, i.e., on November 2, 2016. Stone thereafter
had one year, until November 2, 2017, to file a PCRA petition. See Pa.R.A.P.
903(a); 42 Pa.C.S.A. §§ 9545(b)(1), (3). Although the PCRA court entered
Stone’s petition on the docket on November 6, 2017, Stone certified in the
petition that he gave the petition to prison authorities for mailing on November
2, 2017. Under the prisoner mailbox rule, we treat this as the date of filing.
His petition was thus timely. See Commonwealth v. Wojtaszek, 951 A.2d
1169, 1170 n.3 (Pa.Super. 2008).

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      Stone retained PCRA counsel, who entered his appearance. The court

held a hearing on the petition in February 2018, at which Stone’s PCRA counsel

was present, but Stone was not. At the commencement of the hearing, the

court stated, “I am trying to figure out whether this is a preliminary PCRA

hearing or a full PCRA hearing, and I’m guessing it’s preliminary by the fact

that the defendant isn’t here.” N.T., 2/24/18, at 2. Stone’s counsel responded,

“I suspect you’re correct and I’ll take that as your word.” Id. The court then

discussed with the parties the issues Stone was pursuing and his list of

intended witnesses for the evidentiary hearing. At the conclusion of the

preliminary hearing, the PCRA court ordered Stone to file an amended PCRA

petition. Stone’s PCRA counsel complied and filed an amended petition, which

again raised the issue of Stone’s trial counsel’s ineffectiveness.

      The court held an evidentiary hearing in April 2018. Stone was present

at the hearing and testified. On October 16, 2018, the court dismissed the

petition, finding that Stone had not proven trial counsel’s ineffectiveness. The

court explained that it had not included the two non-judgment dispositions in

its calculation of Stone’s prior record score, and that Stone failed to prove that

the allegedly defective airbags were in the victims’ vehicle, or the effect their

presence would have had on his sentence.

      Stone filed a pro se motion for reconsideration on November 13, 2018.

Stone claimed that he had been unable to contact his PCRA counsel and

assumed he was no longer represented by counsel. Stone also asserted he

had evidence to substantiate his PCRA claims, which PCRA counsel had failed

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to present at the evidentiary hearing. Stone stated he had evidence that the

victim’s vehicle had faulty airbags and had not replaced them after they were

recalled by the manufacturer. Stone also asserted, for the first time, that the

calculation of his prior record score was incorrect because it included two

convictions in Virginia that the court had improperly scored for purposes of his

prior record score. Stone argued that his PCRA counsel had been aware of

Stone’s evidence and arguments but failed to present them at the evidentiary

hearing. The PCRA court took no action on the motion.

       The next day, Stone filed a timely pro se2 notice of appeal.3 The PCRA

court ordered Stone to file a Rule 1925(b) statement of errors complained of

on appeal. However, the court did not send a copy of the order to Stone’s

PCRA counsel. After receiving a docketing statement indicating that Stone was

acting pro se on appeal, this Court ordered the PCRA court to determine the

status of Stone’s representation. The PCRA court held a hearing, at which it


____________________________________________


2 A criminal defendant may file a pro se notice of appeal despite being
represented by counsel. See Commonwealth v. Williams, 151 A.3d 621,
624 (Pa.Super. 2016).

3  Stone had thirty days from the October 16, 2018 dismissal order in which to
file a notice of appeal. See Pa.R.A.P. 903(a). Although Stone’s notice of appeal
was docketed as received by the PCRA court on November 19, 2018, Stone
dated it November 14, 2018. We therefore deem the date of filing as
November 14, 2018, and find Stone’s notice of appeal timely under the
prisoner mailbox rule. See Commonwealth v. Patterson, 931 A.2d 710,
714 (Pa.Super. 2007). Stone’s statement in his notice of appeal that he gave
the notice of appeal to prison authorities on October 14, 2018 is an obvious
error. The court did not enter the dismissal order until October 16, and Stone
dated the notice of appeal November 14.

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colloquied Stone and determined that he waived his right to counsel

voluntarily, knowingly, and intelligently. The PCRA court then allowed Stone’s

PCRA counsel to withdraw and again ordered Stone to file a Rule 1925(b)

statement.

      Stone filed a pro se Rule 1925(b) statement, in which he asserted that

PCRA counsel had been ineffective for failing to properly present Stone’s

claims and evidence of his trial counsel’s ineffectiveness at both the

preliminary hearing and the evidentiary hearing. In his appellate brief, he

raises the following issues:

      I. Whether the PCRA court erred when it conducted what was
      described as a preliminary PCRA hearing without [Stone] being
      present?

      II. Whether PCRA counsel was ineffective when he (a) failed to
      make arrangements to have [Stone] present at the preliminary
      PCRA hearing; and failed to make [Stone] aware of what
      transpired at the hearing?

      III. Whether PCRA counsel was ineffective because he (a) did not
      have [Stone] verify that the attorney filing the petition is
      authorized by [Stone] to file the petition; and (b) when counsel
      failed to provide [Stone] with a copy of the court ordered amended
      PCRA petition and the Commonwealth’s answer, which [Stone]
      had to obtain from the clerk of court and [Stone] was prejudiced
      because [PCRA counsel] did not argue that the PRS was incorrect?

      IV. Whether PCRA counsel was ineffective for (a) not filing a brief
      after the April hearing explaining that [Stone’s] possession of
      heroin charge in Virginia is only an “m” in Pennsylvania; and (b)
      not submitting a copy of the NHSTA recall notice recalling the
      victims’ car?

Stone’s Br. at 2-3 (answers below omitted).




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      “When reviewing the denial of a PCRA petition, this Court’s standard of

review is limited ‘to whether the PCRA court’s determination is supported by

evidence of record and whether it is free of legal error.’” Commonwealth v.

Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (quoting Commonwealth v. Pew,

189 A.3d 486, 488 (Pa.Super. 2018)).

      Stone’s first issue, that the court erred in conducting the initial PCRA

hearing without Stone’s presence, is waived. Stone did not raise this issue in

the trial court or include it in his Rule 1925(b) statement. See Pa.R.A.P.

302(a); 1925(b)(4)(vii).

      Stone’s remaining issues go to the ineffectiveness of his PCRA counsel.

The PCRA court states in its Pa.R.A.P. 1925(a) opinion that Stone never

presented the claims of PCRA counsel’s ineffectiveness prior to the appeal.

Stone argues he presented these claims to the PCRA court in his pro se motion

for reconsideration and that we therefore may review them. Stone cites in

support Commonwealth v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011).

      To the extent Stone asserted PCRA counsel’s ineffectiveness in the

motion for reconsideration, that motion was inadequate to preserve any claims

because Stone was still represented by counsel and he could not engage in

hybrid representation. See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa.

2010); Commonwealth v. Ford, 44 A.3d 1190, 1199-1200 (Pa.Super. 2012)

(acknowledging that “because petitioners are not permitted to pursue hybrid

representation and counsel cannot allege his own ineffectiveness, claims of




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PCRA counsel ineffectiveness cannot ordinarily be raised in the state post-

conviction proceeding below”).

      He therefore in effect raises PCRA counsel’s ineffectiveness for the first

time on appeal, which he may not do. See Commonwealth v. Smith, 121

A.3d 1049, 1054 (Pa.Super. 2015). In the context of a petitioner’s first PCRA

petition, for which a petitioner has a rule-based right to effective assistance

of counsel, a petitioner may raise claims of PCRA counsel’s ineffectiveness in

the PCRA court in response to the court’s Rule 907 notice of its intent to

dismiss the petition. Id. at 1053. If the PCRA court holds an evidentiary

hearing, and therefore does not issue a Rule 907 notice, a petitioner may raise

ineffective assistance of PCRA counsel in a subsequent PCRA petition. See

Jette, 23 A.3d at 1044 n.14; see also Commonwealth v. Henkel, 90 A.3d

16, 29 (Pa.Super. 2014) (en banc) (“issues of PCRA counsel effectiveness

must be raised in a serial PCRA petition or in response to a notice of dismissal

before the PCRA court”) (quoting Commonwealth v. Ford, 44 A.3d 1190,

1200 (Pa.Super. 2012)).

      We decline, under the facts of this case and the argument before us, to

sanction a new procedure by which a petitioner can raise claims of PCRA

counsel’s ineffectiveness. Jette does not require a different result. There, the

PCRA court held an evidentiary hearing on Jette’s petition, and then dismissed

it. Jette’s PCRA counsel presented several issues on appeal, but Jette

simultaneously filed a pro se document raising PCRA counsel’s ineffectiveness.

The Pennsylvania Supreme Court held that Jette could not raise the claims of

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PCRA counsel ineffectiveness on appeal while still represented by PCRA

counsel, and could not request self-representation after his counsel had filed

an appellate on his behalf. 23 A.3d at 1044.

      The Court then stated, in a footnote, “[I]f an appellant remains adamant

that the claims foregone by counsel provide the better chance for success, he

can avoid the potential loss of those claims by timely exercising his desire to

self-represent or retain private counsel prior to the appeal.” Id. at 1044 n.14.

This language indicates that a PCRA petitioner may preserve claims foregone

by his PCRA counsel, once the petitioner learned PCRA counsel did not

intend to advance them, by timely requesting the release of his appointed

counsel and presenting the additional claims himself or by private counsel.

The Court acknowledged “[w]hile difficult, the filing of a subsequent timely

PCRA petition is possible, and in situations where an exception pursuant to §

9545(b)(1)(i-iii) can be established a second petition filed beyond the one-

year time bar may be pursued.” Id. The Court in Jette nowhere suggested

that a PCRA petitioner could preserve claims of PCRA counsel’s ineffectiveness

in a pro se motion for reconsideration while still represented by counsel.

      We therefore decline review of Stone’s claims of ineffectiveness of PCRA

counsel at this time. Stone may raise them in a subsequent, timely, PCRA

petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2019




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