J-S08020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RYAN EUGENE RIGGS                          :
                                               :
                       Appellant               :   No. 911 WDA 2019

              Appeal from the PCRA Order Entered May 22, 2019
      In the Court of Common Pleas of Somerset County Criminal Division
                       at No(s): CP-56-CR-0000451-2015


BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.:                            FILED MARCH 10, 2020

        Ryan Eugene Riggs (Appellant) appeals from the order entered in the

Somerset County Court of Common Pleas, denying his timely-filed Post

Conviction Relief Act1 petition, which alleged his prior counsel provided

ineffective assistance. We affirm.

        In July of 2015, Appellant was charged with driving while under the

influence2 (DUI), recklessly endangering another person3 (REAP), and other

offenses. The charges arose from a one-vehicle accident on October 27, 2013,

in which Appellant was the driver with a passenger in his vehicle.            A


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1   42 Pa.C.S. §§ 9541-9545.

2   75 Pa.C.S. § 3802(a)(1).

3   18 Pa.C.S. § 2705.
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breathalyzer administered shortly after the accident revealed Appellant had a

blood alcohol content (BAC) level of 0.243%.        See generally N.T. Plea

Hearing, 4/12/16, at 4-5.

       We review the somewhat protracted procedural history of this matter,

as it pertains to Appellant’s arguments on appeal. Appellant failed to appear

for jury selection. Thus on March 7, 2016, the trial court revoked his bail and

issued a bench warrant for his arrest. On March 23rd, Appellant filed a motion

to reinstate bail.4 This court granted the motion and directed that Appellant

be released and placed on electronic monitoring. Order, 3/24/16.

       On April 12, 2016, Appellant pleaded guilty to DUI — his third for

sentencing purposes — and REAP. After this hearing, Appellant was released

on bond with electronic monitoring. On April 28th, however, the trial court

revoked bond because Appellant tested positive for marijuana use. Appellant

was thereafter remanded to county prison.

       Approximately one month later, on May 25, 2016, Appellant filed

another motion to reinstate bail. On May 26th, the court conducted a bail

hearing (bail hearing), denying Appellant’s motion and ordering him to remain

incarcerated pending sentencing. Pertinent to Appellant’s claims on appeal,

the court explained it was holding Appellant accountable for his conduct,

including failing to appear for jury selection and violating the terms of his


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4When Appellant was initially detained, he had moved for reinstatement of
bail, but the trial court denied the request. Order, 3/17/16.

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electronic monitoring. The court noted that it wished “to make this . . . painful

for” Appellant so that the court may “never see [him] here again.”          N.T.

Motions H’rg, 5/26/16, at 6-7. The court commented, “What I’m doing is . . .

causing you to be able to avoid a future State prison sentence, because if you

come back again, that’s probably what is going to happen.” Id. at 8.

      This case proceeded to sentencing on June 16, 2016. The trial court

imposed two months to two years’ imprisonment for DUI, and a consecutive

two years’ probation for REAP. Pertinently, the court addressed Appellant:

      If you come back here again and get your parole and probation
      revoked because you have committed another offense or any
      other reason, I promise you I am going to send you to State Prison
      and there will be nothing anyone can do to convince me otherwise.

      . . . Keep that in the back of your mind. And I hope I don’t see
      you again. I hope you successfully complete your parole and
      probation and this is the last time I’ll see you in this courtroom.

N.T. Sentencing, 6/16/16, at 7. The court immediately paroled Appellant and

ordered him, inter alia, to refrain from drug or alcohol use.

      Eight days after sentencing, on June 24, 2016, the county probation

department filed a petition to revoke Appellant’s parole and probation. The

petition averred that a breathalyzer, performed on Appellant one day earlier,

indicated a BAC of 0.039%.       Furthermore, Appellant admitted to, and a

urinalysis confirmed, cocaine use.

      The trial court conducted a violation of probation (VOP) hearing on

August 3, 2016. Appellant stipulated to the allegations in the VOP petition,

and the trial court revoked his parole and probation. The court imposed a new

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sentence on Appellant’s REAP conviction, of six months to two years’

incarceration, to run consecutive to his original DUI sentence of two months

to two years’ incarceration. The aggregate sentence of eight months to four

years’ incarceration was to be served in state prison.

       Appellant filed a timely post-sentence motion, alleging: (1) the sentence

was excessive; and (2) the trial judge should have recused himself from the

VOP sentencing due to the comments he made, regarding a potential state

prison term, at the bail and sentencing hearings. The trial court denied the

motion.     Appellant did not take a direct appeal.      We note Appellant was

represented at all of the above proceedings by Joseph Policicchio, Esq. (Trial

Counsel).

       Appellant filed the underlying, timely pro se PCRA petition on December

22, 2016. There was almost no docket activity for the next 15 months. On

March 22, 2018, an amended PCRA petition was filed by Appellant’s present

counsel, Chris Rand Eyster, Esquire.5 This petition averred, inter alia, Trial

Counsel was ineffective for failing to file a direct appeal.

       Nine months thereafter, on December 19, 2018, Appellant’s counsel

filed a “Motion for Reconsideration of Sentence Nunc Pro Tunc.” This motion


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5There was one docket entry between the December 22, 2016, pro se PCRA
petition and March 22, 2018, counseled amended petition: a January 5, 2018
docket entry contained the trial court’s notation, “Penalty Satisfied.”
Furthermore, while the trial docket does not include any entry of appearance
by counsel, the PCRA court stated counsel was privately retained by Appellant.
Order, 5/22/19, at 2.

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“request[ed] reconsideration of [Appellant’s] sentence nunc pro tunc based

on” Trial Counsel’s alleged ineffective assistance for, inter alia, failing to: (1)

request a drug and alcohol evaluation in preparation for the VOP hearing; and

(2) timely request recusal of the trial judge.6          Appellant’s Motion for

Reconsideration of Sentence Nunc Pro Tunc at 2.

       The PCRA court conducted a hearing on February 19, 2019. Appellant

did not challenge the fact the court construed the claims in his “Motion for

Reconsideration of Sentence Nunc Pro Tunc” as arising “under the PCRA

umbrella.” See N.T. PCRA H’rg, 2/19/19, at 23-24. The sole witness at the

hearing was Appellant.         Appellant’s counsel informed the court that Trial

Counsel would not appear, because he was retired and “out of the

jurisdiction,” Trial Counsel no longer had a case file and did not “remember

exactly what happened,” and Trial Counsel’s “memory of what took place . . .

is belied by the facts of the record.” Id. at 3-4.

       The PCRA court entered an order on May 22, 2019, denying relief.

Appellant filed a timely notice of appeal and complied with the court’s order

to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

       Appellant presents one issue for our review:


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6  The motion also stated the parties had appeared for a “short proceeding” on
October 29, 2018, at which Appellant’s counsel “requested a continuance to
file additional pleadings” — which was granted — “and moved for bail,” which
was denied. Appellant’s Motion for Reconsideration of Sentence Nunc Pro
Tunc, 12/19/18, at 2.


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      Whether the [PCRA] court erred in denying Appellant’s PCRA
      petition and reconsideration of sentence?

Appellant’s Brief at 2. We address his supporting arguments seriatim.

      Appellant first claims the PCRA court “ignor[ed]” and “refused to act” on

his pro se PCRA petition, in violation of Pa.R.Crim.P. 907 (PCRA judge shall

promptly review PCRA petition). Appellant’s Brief at 5 & n.1. No relief is due.

      Appellant ignores that subsequent to filing his pro se petition, he

retained counsel, who filed an amended PCRA petition and a “Motion for

Reconsideration of Sentence Nunc Pro Tunc” on his behalf. The PCRA court

properly conducted a hearing, and ruled on, the counseled filings.             See

Commonwealth v. Evans, 866 A.2d 442, 444 (Pa. Super. 2005) (denial of

first petition for PCRA relief cannot stand unless petitioner was afforded

assistance of counsel). To the extent Appellant contends the PCRA court’s

ruling was tardy, we point out: (1) it was Appellant’s counsel who, for

unspecified reasons, filed an amended PCRA petition 15 months after the pro

se petition; and (2) Appellant himself has acknowledged his counsel twice

requested continuances for the PCRA hearing.          See Appellant’s Motion for

Reconsideration of Sentence Nunc Pro Tunc at 2.

      Next, Appellant contends the PCRA court “erroneously labeled” his

“Motion for Reconsideration of Sentence Nunc Pro Tunc” as “a second PCRA

petition, when clearly it was a continuation of the litigation relating to the first

PCRA petition.” Appellant’s Brief at 6. This argument is frivolous.




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       First, Appellant’s styling of the petition as a “Motion for Reconsideration

of Sentence Nunc Pro Tunc” was mistaken, where: (1) he had already filed a

PCRA petition, which remained pending; and (2) in any event, he had neither

sought, nor was granted, any leave to file a post-sentence motion.           See

Pa.R.Crim.P. 720(A)(1) (“[A] written post-sentence motion shall be filed no

later than 10 days after imposition of sentence.”); Commonwealth v.

Wright, 846 A.2d 730, 734 (Pa. Super. 2004) (for petition to file post-

sentence motion nunc pro tunc to be granted, defendant must, within 30 days

after imposition of sentence, demonstrate extraordinary circumstances which

excuses tardiness; request for nunc pro tunc relief is separate and distinct

from merits of underlying post-sentence motion).           Second, despite the

inaccurate title of the motion, the PCRA court properly construed it as a claim

for relief under the PCRA.7 See 42 Pa.C.S. § 9542 (“The [PCRA] shall be the

sole means of obtaining collateral relief and encompasses all other common

law and statutory remedies for the same purpose that exist when this

subchapter takes effect, including habeas corpus and coram nobis.”); Evans,

866 A.2d at 442-44 (where defendant’s motion for modification of sentence

was filed after conclusion of 10-day post-sentence and 30-day appeal filing

periods, motion was properly treated as PCRA petition). Finally, contrary to


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7Furthermore, as stated above, Appellant did not object at the PCRA hearing
when the court stated his “Motion for Reconsideration of Sentence Nunc Pro
Tunc” came “under the PCRA umbrella.” See N.T., 2/19/19, at 24.


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Appellant’s confounding claim, the PCRA court did treat Appellant’s motion as

an amendment to the counseled PCRA petition, conducted a hearing on it, and

ruled on the merits.   See Order, 5/22/16, at 1 (court treated Appellant’s

“Motion for Reconsideration of Sentence Nunc Pro Tunc” as his second

amended petition pursuant to PCRA).

      Next, Appellant asserts that where he has “serve[d] nearly 4 years in

prison for a DUI offense,” the PCRA court erred in not reconsidering his VOP

sentence. Appellant’s Brief at 3. In support, Appellant claims Trial Counsel

was ineffective for: (1) failing to preserve a motion for the trial judge to

recuse; (2) failing to request a drug and alcohol evaluation in preparation for

the VOP hearing; and (3) ignoring his request to file a direct appeal from the

VOP judgment of sentence. We likewise address these claims seriatim.

      Preliminarily, we note Appellant’s contention, that he has “serve[d]

nearly 4 years in prison for a DUI offense,” is mistaken. See Appellant’s Brief

at 3. Appellant’s original, June 16, 2016, DUI-third conviction sentence — of

2 months to 2 years’ imprisonment — has not been modified and remains in

place. Instead, upon revoking his probation, the trial court imposed a new

sentence on Appellant’s REAP conviction of six months to two years’

imprisonment, to run consecutively. The new aggregate sentence, of eight

months to four years, was thus the result of a violation of probation — the

facts underlying to which Appellant stipulated — and the resentencing of his

REAP conviction.


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      We note the relevant standard of review: we review the PCRA court’s

findings, in the light most favorable to the prevailing party, and determine

whether they are supported by the record and free from legal error.

Commonwealth v. Sarvey, 199 A.3d 436, 445-46 (Pa. Super. 2018), appeal

denied, 208 A.3d 62 (Pa. 2019). “We defer to the PCRA court’s factual findings

and credibility determinations supported by the record. In contrast, we review

the PCRA court’s legal conclusions de novo.” Id. at 446.

      This Court has explained:

      [C]ounsel is presumed effective[.        T]o prove counsel [was]
      ineffective, the petitioner must show that: (1) his underlying claim
      is of arguable merit; (2) counsel had no reasonable basis for his
      action or inaction; and (3) the petitioner suffered actual prejudice
      as a result. See Commonwealth v. Pierce, . . . 527 A.2d 973
      (Pa. 1987). If a petitioner fails to prove any of these prongs, his
      claim fails. . . . To demonstrate prejudice, the petitioner must
      show that there is a reasonable probability that, but for counsel’s
      unprofessional errors, the result of the proceedings would have
      been different.

Sarvey, 199 A.3d at 452 (some citations omitted).

      We first consider Appellant’s claim that Trial Counsel was ineffective for

failing to timely request recusal of the trial judge, where the judge’s prior

comments at the bail and initial sentencing hearings “indicated the court’s

predisposition to send [him] to state prison if [he] violated the terms of his

sentence/probation.”    Appellant’s Brief at 5.      Appellant maintains that

although Trial Counsel included a recusal issue in the post-VOP sentence

motion, Trial Counsel should have raised this issue prior to the VOP hearing.

Id. No relief is due.

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      We note:

      “The party who asserts a trial judge must be disqualified bears the
      burden of producing evidence establishing bias, prejudice, or
      unfairness necessitating recusal, and the decision by a judge
      against whom a plea of prejudice is made will not be disturbed
      except for an abuse of discretion.” . . . A jurist, when a motion
      for recusal is filed, must “consider whether his or her involvement
      in the case creates an appearance or impropriety and/or would
      tend to undermine public confidence in the judiciary.”

Sarvey, 199 A.3d at 454 (citations omitted).

      The bases for Appellant’s recusal and ineffectiveness claim are

comments made by the trial court at the May 26, 2016, bail hearing and June

16th original sentencing hearing. In denying Appellant’s motion to reinstate

his bail, the trial court explained:

          The criminal court system basically has two jobs. The first is
      accountability, to hold people accountable for their actions.

           The second job essentially is to try to get people to modify
      their behavior.

                                       *     *      *

      . . . I am holding you accountable for your actions [of] not
      showing up for your jury selection, and then disobeying the
      conditions of your electronic monitoring, or of your release
      on house arrest.

          I understand that you are not accustomed to being held
      accountable and so this is probably uncomfortable for you. I
      recognize that.

           But I think making it uncomfortable is good. I want to make
      it uncomfortable for you.

          In fact, I want to make it painful for you because I have a
      second job. That’s to try to modify your behavior.


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                                   *     *      *

           So, I have no intention —you can file a motion to be released
      every Monday between now and sentencing. I am not going to
      release you. I am going to make this as painful for you as I can
      so that that memory is burnt on your brain, and I hope to never
      see you here again. That’s what I really hope for. I hope you
      never come through this system again.

          . . . What I’m doing is I am causing you to be able to avoid
      a future State prison sentence, because if you come back
      again, that’s probably what is going to happen.

N.T., 5/26/16, at 5-8 (emphases added).

      Furthermore, Appellant’s instant DUI conviction is his third.            At

sentencing, the trial court stated:

           I am going to give you a time-served sentence that’s going
      to allow you to be paroled today. I’m going to add onto the time-
      served sentence a probationary tag, and this is what I want you
      to understand — and if you forget everything that I have ever told
      you up to this point, remember this: If you come back here again
      and get your parole and probation revoked because you
      have committed another offense or any other reason, I
      promise you I am going to send you to State Prison and
      there will be nothing anyone can do to convince me otherwise.

           So when you are out on the street starting today, remember
      that. Keep that in the back of your mind. And I hope I don’t see
      you again. I hope you successfully complete your parole and
      probation and this is the last time see you in this courtroom.

N.T., 6/16/16, at 7 (emphasis added).           Eight days thereafter, the county

probation department filed its VOP petition.

      After reviewing the above, we disagree with Appellant’s underlying claim

that the trial court acted with such “bias, prejudice, or unfairness necessitating

recusal.” See Sarvey, 199 A.3d at 454. The trial court emphasized it had


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previously accommodated Appellant’s requests for bond and bail, despite

Appellant’s repeated failure to comply with its terms.             The court also

emphasized its sentencing duties to hold Appellant accountable for his conduct

and to attempt to modify Appellant’s behavior. The court twice articulated its

desire that Appellant would not appear before it again and would change his

behavior.     In light of all the foregoing — which Appellant ignores in his

argument — we conclude Appellant has failed to establish his underlying claim

has merit. Accordingly, no relief is due on his assertion that Trial Counsel

failed to timely request recusal. See id. at 452.

        Next, Appellant avers Trial Counsel was ineffective for failing to request

a drug and alcohol evaluation in preparation for the VOP hearing. Appellant

reasons that without a drug and alcohol evaluation, Trial Counsel’s requests

for “a county sentence with treatment were not unpersuasive.” Appellant’s

Brief at 4. We disagree.

        At the initial sentencing hearing on June 16, 2016, the trial court had

reviewed Appellant’s pre-sentence investigation report, and thus we presume

it “was aware of relevant information regarding [his] character and weighed

those    considerations   along   with    mitigating   statutory   factors.”   See

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988); N.T., 6/16/16, at

1. Furthermore, the court was aware specifically of Appellant’s alcohol and

drug use, where Appellant had recently violated the terms of his electronic

monitoring by using alcohol, cocaine, and marijuana. See also N.T., 6/16/16,


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at 10 (court stating its reasons for sentence: “[Appellant] has been afforded

numerous opportunities for rehabilitation in the past; however, he continues

to use alcohol and violate the law.”). The same trial court presided over the

VOP hearing a mere seven weeks later, on August 3, 2016. Incorporating our

discussion above, concerning the trial court’s reasons for imposing a state

sentence, we conclude there is no merit to Appellant’s underlying claim that a

drug and alcohol evaluation prepared specifically for the VOP hearing would

have swayed the trial court to impose a county sentence. See Sarvey, 199

A.3d at 452. Accordingly, this ineffectiveness claim fails.

      Appellant’s final claim is that Trial Counsel was ineffective for

disregarding his request to file a direct appeal.

      It is well settled that when a lawyer fails to file a direct appeal requested
      by the defendant, the defendant is automatically entitled to
      reinstatement of his direct appeal rights. Where a defendant does not
      ask his attorney to file a direct appeal, counsel still may be held
      ineffective if he does not consult with his client about the client’s
      appellate rights. Such ineffectiveness, however, will only be found
      where a duty to consult arises either because there were issues of merit
      to raise on direct appeal or the defendant, in some manner, displayed
      signs of desiring an appeal.

Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa. Super. 2011)

(citations omitted).

      At the PCRA hearing, Appellant testified he requested Trial Counsel to

file a post-sentence motion and direct appeal, as follows:

            [Appellant’s Counsel]: And did you request [Trial Counsel] to
      file a Post-Sentence Motion?

          [Appellant:] Yes, an appeal.

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N.T. PCRA H’rg at 10.8           Appellant, however, did not provide any further

testimony or evidence about this alleged request. The PCRA court reasoned:

       Without more [evidence], particularly in light of the absence of
       testimony from [T]rial [C]ounsel at the evidentiary hearing,
       [Appellant’s] bare assertions in this regard lack credibility and
       are inadequate to sustain his burden of proof at this stage.
       Consequently, we find that [Appellant’s] claim concerning [T]rial
       [C]ounsel’s failure to file a direct appeal lacks arguable merit and
       must be dismissed accordingly.

PCRA Ct. Op. at 4-5 (emphasis added).

       We    reiterate    that    we    defer   to   the   PCRA    court’s   credibility

determinations. See Sarvey, 199 A.3d at 446. The court was free to reject

Appellant’s claim, where he provided no explanation of when or how he

requested Trial Counsel to file a direct appeal.           Accordingly, we affirm the

PCRA court’s denial of relief on this issue as well.

       For the foregoing reasons, no relief is due to Appellant, and we affirm

the order of the PCRA court dismissing his counseled amended PCRA petition

and “Motion for Reconsideration of Sentence Nunc Pro Tunc.”

       Order affirmed.




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8 The PCRA court stated “the only evidence offered by” Appellant was his own
testimony that Trial Counsel did not take a direct appeal and did not provide
any reason for not doing so. PCRA Ct. Op. at 4. Our review of the PCRA
hearing transcript, reveals Appellant did further testify he reqeusted Trial
Counsel to file a direct appeal. See N.T., 2/19/19, at 10. Nevertheless, as
we discuss above, we defer to the PCRA court’s credibility determinations and
finding that Appellant failed to establish grounds for relief.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2020




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