J-S61029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                         Appellee

                    v.

ZACHARY THOMAS SPADA

                         Appellant                No. 592 WDA 2014


               Appeal from the PCRA Order of March 18, 2014
                 In the Court of Common Pleas of Erie County
              Criminal Division at No.: CP-25-CR-0001385-2011


COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                         Appellee

                    v.

ZACHARY THOMAS SPADA

                         Appellant                No. 593 WDA 2014


               Appeal from the PCRA Order of March 18, 2014
                 In the Court of Common Pleas of Erie County
              Criminal Division at No.: CP-25-CR-0003079-2010


COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                         Appellee

                    v.

ZACHARY THOMAS SPADA

                         Appellant                No. 594 WDA 2014
J-S61029-14


                Appeal from the PCRA Order of March 18, 2014
                  In the Court of Common Pleas of Erie County
               Criminal Division at No.: CP-25-CR-0003150-2010


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                             FILED DECEMBER 18, 2014

       In this consolidated appeal,1 Zachary Thomas Spada challenges the

PCRA court’s order denying him relief under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-46.               Specifically, Spada challenges the

constitutional effectiveness of counsel in connection with the entry of his

guilty plea.     As well, Spada argues that the trial court erred when it

sentenced him out of his presence. We affirm.

       The PCRA court has provided the following factual and procedural

background:

       On August 24, 2011, [Spada pleaded] guilty to the following: at
       docket number 3079 of 2010, one count of harassment[ 2]; at
       docket number 3150 of 2010, one count each of terroristic
       threats and loitering and prowling at night[3]; and, at docket
       number 1385 of 2011, one count of harassment.

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
      Our sua sponte consolidation order was entered on May 16, 2014. As
well, on October 15, 2014, relying upon our Supreme Court’s decision in
Commonwealth v. Jette, 23 A.3d 1032, 1044 & n.14 (Pa. 2011), we
entered an order denying Spada’s motion to proceed pro se because counsel
already had filed a brief on Spada’s behalf at that time.
2
       See 18 Pa.C.S. § 2709.
3
       See 18 Pa.C.S. §§ 2706 and 5506, respectively.



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J-S61029-14


     On October 13, 2011, [Spada] failed to appear at the scheduled
     sentencing hearing and was sentenced in absentia as follows: 3
     to 12 months’ imprisonment for harassment at docket number
     1385 of 2011; a consecutive term of 3 to 12 months’
     imprisonment for harassment at docket number 3079 of 2010;
     and, at docket number 3150 of 2010, 6 to 12 months’
     [imprisonment] for terroristic threats, consecutive to the
     loitering and prowling sentence. [Spada] filed an untimely post-
     sentence motion which [the trial] court denied on October 26,
     2011.

     On November 14, 2011, [Spada] filed a notice of appeal, which
     the Pennsylvania Superior Court quashed because counsel failed
     to file a brief. [Spada] subsequently filed a timely PCRA petition,
     and [the PCRA] court granted [Spada] the right to file a nunc pro
     tunc post-sentence motion and direct appeal. After the denial of
     his post-sentence motion, [Spada] filed a timely direct appeal.
     On April 5, 2013, the Superior Court affirmed [Spada’s]
     judgment of sentence. [Spada] thereafter filed a [p]etition [f]or
     [a]llowance of [a]ppeal with the Pennsylvania Supreme Court,
     which was denied on October 9, 2013.

     On or about December 18, 2013, [Spada] filed a pro se PCRA
     petition and motion to amend[, which was docketed on
     December 20, 2013]. On December 30, 2012, [the PCRA court]
     appointed PCRA counsel and on February 7, 2014 PCRA counsel
     filed a supplement.

     An evidentiary hearing was conducted by [the PCRA court] on
     March 3, 2014.       At that time, both [Spada] and his
     plea/sentencing counsel . . . testified.

Trial Court Opinion (“T.C.O.”), 3/18/2014, at 1-2.

     On March 31, 2014, Spada, acting pro se despite the continuing

representation of appointed PCRA counsel, filed a notice of appeal and a

concise statement of the errors complained of on appeal, ostensibly pursuant

to Pa.R.A.P. 1925(b), notwithstanding that the trial court did not direct him

to do so. On April 11, 2014, PCRA counsel filed a notice of appeal on behalf

of Spada.     On that same day, the trial court entered a Rule 1925(a)

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J-S61029-14



memorandum referring this court to its March 18, 2014 opinion. On May 12,

2014,    this   Court   appointed   Spada’s    PCRA    counsel    to   continue   his

representation of Spada for purposes of appeal.          On May 29, 2014, this

Court dismissed Spada’s pro se appeal, which was docketed at 525 WDA

2014, as duplicative.

        Before this Court, Spada presents the following questions:

        1.    Whether the PCRA court erred in denying PCRA relief in
        that defense counsel was ineffective in interfering with his ability
        to enter a no contest plea?

        2.    Whether the PCRA court erred in denying PCRA relief in
        that defense counsel was ineffective in advising Spada to plead
        guilty to the loitering and prowling charge wherein a valid
        defense existed?

        3.    Whether the lower court erred in denying PCRA relief in
        that Spada should not have been sentenced in absentia?

Brief for Spada at 2 (minor modifications for clarity).          We review a PCRA

court order to determine whether the order is “supported by the evidence of

record and is free of legal error.       The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citation

omitted).

        Spada’s first two claims sound in ineffective assistance of counsel

(“IAC”) associated with his decision to plead guilty. Under the circumstances

alleged, to establish a basis for collateral relief:

        [A]ppellant must establish by a preponderance of the evidence
        that his conviction or sentence resulted from “a plea of guilty


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J-S61029-14


      unlawfully induced where the circumstances make it likely that
      the inducement caused an individual to plead guilty.” 42 Pa.C.S.
      § 9543(a)(2)(iii). See also Commonwealth v. Shekerko, 639
      A.2d 810, alloc. denied, 539 Pa. 677, 652 A.2d 1322 (1994)
      (because Shekerko pled guilty, the truth-determining process is
      not implicated under 42 Pa.C.S. § 9543(a)(2)(ii); thus, his [IAC]
      claim     in    context     of   guilty    plea     fell    under
      [sub]section 9543(a)(2)(iii), concerning the lawfulness of his
      plea).

                                    ****

      [C]laims of counsel’s ineffectiveness in connection with a guilty
      plea will provide a basis for relief only if the ineffectiveness
      caused an involuntary or unknowing plea. Commonwealth v.
      Chumley, 394 A.2d 497 (Pa. 1978), cert. denied, 440 U.S. 966
      (1979). This is similar to the “manifest injustice” standard
      applicable to all post-sentence attempts to withdraw a guilty
      plea. Commonwealth v. Fluharty, 632 A.2d 312 (Pa. Super.
      1993). The law does not require that appellant be pleased with
      the outcome of his decision to enter a plea of guilty: “All that is
      required is that [appellant’s] decision to plead guilty be
      knowingly, voluntarily and intelligently made.” Commonwealth
      v. Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994).

Commonwealth v. Yager, 685 A.2d 1000, 1003-04 (Pa. Super. 1996)

(some citations modified or omitted; footnotes omitted; emphasis in

original).

      The following time-honored standard applies to all IAC claims:

      [I]n order to obtain relief based on [an IAC] claim, a petitioner
      must establish: (1) the underlying claim has arguable merit; (2)
      no reasonable basis existed for counsel’s actions or failure to
      act; and (3) petitioner suffered prejudice as a result of counsel’s
      error such that there is a reasonable probability that the result of
      the proceeding would have been different absent such error.

Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). The petitioner



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J-S61029-14



bears the burden of proving all three prongs of this test. Commonwealth v.

Meadows, 787 A.2d 312, 319-20 (Pa. 2001).          To that end, he “must set

forth and individually discuss substantively each prong of the Pierce test.”

Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008).

      In connection with his first issue, Spada dutifully and accurately sets

forth the governing legal standard. Brief for Spada at 4-6. His attempt to

apply that standard to the instant case, however, consists of one perfunctory

paragraph, which provides, in its entirety, as follows:

      [Spada] asserted several claims implicating the validity of the
      plea proceeding and the integrity of the sentencing proceeding
      all derived from the conduct and omissions of [plea]
      counsel . . . . [Spada] testified that he wanted to enter pleas of
      no contest to the criminal charges but he was apprised by [plea]
      counsel that the Commonwealth would not accept pleas of that
      nature, which representation is without any patent plausibility
      thereby causing the inducement or coercion of the entry of guilty
      pleas contrary to the intentions of [Spada].

Brief for Spada at 7. Conspicuously absent from this argument, such as it is,

is any discussion addressed to whether plea counsel had a reasonable basis

for believing that the Commonwealth would have rejected such a plea and

for advising Spada to that effect. As well, Spada does not materially argue

that the omission prejudiced him. He does not contend that, had he entered

pleas of nolo contendere to the same charges, he would have received a

more lenient sentence.     The PCRA court, which was also the sentencing

court, suggested otherwise. See T.C.O. at 7 (“[A] plea of nolo contendere

would not have affected [Spada’s] sentence.”). Spada also does not assert


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J-S61029-14



that, had trial counsel advised him differently, Spada would have opted to go

to trial. Accordingly, Spada has established no basis upon which to rest a

finding of ineffectiveness, and is not entitled to relief on this claim.

      Spada’s second issue concerns his claim that he had a valid defense to

the prowling and loitering charge, specifically, that the sun had not set at

the time of the incidents in question. See Brief for Spada at 7. Once again,

Spada’s argument is conclusory and does not adhere to the strictures of the

Pierce test. We will not construct a proper three-pronged argument for an

appellant who has failed to do so himself.        This claim of IAC, too, lacks

merit.

      In his third issue, Spada contends that the trial court erred in

sentencing him in absentia.       Once again, his argument consists of one

conclusory paragraph. That being said, evidently no one, including the PCRA

court, disputes that Spada arrived for sentencing only a few minutes late,

but that his presence did not come to the court’s attention until a few

minutes after the court had entered its sentence. See T.C.O. at 8. Notably,

Spada cites no legal authority in support of his claim, and only by implication

requests resentencing, although that would seem to be the obvious form of

relief to seek.

      More importantly, though, we can discern no reason that Spada could

not have pursued this issue on direct appeal.         This is especially notable

inasmuch as the only issue raised in Spada’s direct appeal concerned the

discretionary aspects of his sentence, which this Court rejected.           See

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J-S61029-14



Commonwealth v. Spada, 1321, 1322, 1323 WDA 2012 (Pa. Super. April

5, 2013) (unpublished memorandum).               PCRA   subsection 9543(a)(3)

precludes consideration on collateral review of an allegation of error that

could have been raised at some earlier time, including direct review.

Nothing precluded Spada from challenging the propriety of the trial court

sentencing him in his absence on direct appeal. Because he declined to do

so then, he may not do so now.4 See Commonwealth v. Abdul-Salaam,
____________________________________________


4
       If this issue implicated the legality of sentence, it would not be
waivable, and Spada could raise it at any time, including in the instant
collateral proceeding. See Commonwealth v. Jacobs, 900 A.2d 368, 372
(Pa. Super. 2006) (en banc). Our Supreme Court long has held that the
right to allocution (which is perhaps the only right of substance that Spada
lost in this instance, since counsel was present at sentencing) is sacrosanct.
See Commonwealth v. Thomas, 553 A.2d 918, 919 (Pa. 1989) (“The right
to personally address the court prior to sentencing is of ancient origin. Often
referred to as the ‘ancient inquiry,’ the practice originated in the English
common law where, as early as 1689, any failure to permit a defendant to
plead for mercy required reversal.”). However, the bases for challenging
sentences as illegal under Pennsylvania law are few. See Jacobs, 900 A.2d
at 372-73 (enumerating examples). In Commonwealth v. Newman, 875
A.2d 1088 (Pa. Super. 2005), this Court held that “the sentencing court has
a mandatory duty to advise a defendant of his right of allocution and that a
defendant who establishes a violation need not demonstrate prejudice in
order to obtain relief. In view of these considerations, we held that an
alleged denial of a defendant’s right of allocution relates to the legality of
sentence,” and a sentencing challenge raising that issue could not be
waived. Id. at 1091. In Jacobs, however, an en banc panel of this Court
overturned Newton in no uncertain terms. We explained that, “[p]rior to
Newton, our appellate courts had not squarely ruled that a denial of the
right of allocution is a non-waivable challenge to the legality of the sentence.
Indeed, the sparse case law that did exist prior to Newton appears to be to
the contrary.” 900 A.2d 376 (footnote omitted). After reviewing related
authorities, “we conclude[d] that a denial of the right of allocution does not
create a non-waivable challenge to the legality of sentence.” Id. Because
(Footnote Continued Next Page)


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J-S61029-14



808 A.2d 558, 561 (Pa. 2001) (holding that PCRA claims that could have

been raised on direct appeal are waived for purposes of PCRA relief). Thus,

we may not grant relief on this issue.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2014




                       _______________________
(Footnote Continued)

we can discern no basis to distinguish a challenge to a circumstance in which
a tardy defendant who was represented by counsel was sentenced in
absentia from a challenge to a denial of the right to allocution, the only
apparent substantive privilege that Spada was denied in this case, we must
conclude that the present challenge does not implicate the legality of
sentence and was waived in this case.



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