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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    RAYMOND A. MIKELONIS, SR.              :
                                           :
                     Appellant             :   No. 441 WDA 2019

            Appeal from the PCRA Order Entered December 27, 2018
     In the Court of Common Pleas of Clearfield County Criminal Division at
                       No(s): CP-17-CR-0000755-2011


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

MEMORANDUM BY McLAUGHLIN, J.:                         FILED APRIL 24, 2020

        Raymond A. Mikelonis, Sr., appeals from the order denying his requests

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

42. This case returns to us following a remand for the PCRA court to clarify

the status of counsel’s petition to withdraw. The PCRA court has granted

counsel’s petition and we now affirm the order denying post-conviction relief.

        Mikelonis was charged in October 2011 with 47 counts of sexual abuse

of children-child pornography1 and he waived his preliminary hearing and

formal arraignment. He later tendered a negotiated guilty plea to all charges.

He signed a guilty plea colloquy form, and after a full oral colloquy, the court

accepted the plea. Before sentencing, Mikelonis moved to withdraw his plea.

The court held a hearing and concluded that Mikelonis had received proper

*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 6312(d).
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legal representation in the course of the plea and had entered his plea

knowingly, intelligently, and voluntarily. It therefore denied the motion. The

trial court later sentenced Mikelonis to a total of nine months to seven years

in prison. We affirmed on direct appeal in May 2014. See Commonwealth v.

Mikelonis, 104 A.3d 43 (Pa.Super. filed May 9, 2014). Mikelonis did not seek

review in the Pennsylvania Supreme Court.

      In April 2015, Mikelonis filed a timely pro se PCRA petition claiming

ineffective assistance of counsel. See PCRA Petition, filed 4/27/15, at 3. He

alleged that “[t]rial counsel was ineffective for failing to investigate and

introduce favorable evidence at all stages of the trial[.]” Memorandum of Law

in Support of PCRA Petition, at 1. The PCRA court appointed counsel who filed

a Turner/Finley2 letter and a petition to withdraw as counsel. The PCRA court

then issued notice of intent to dismiss the petition without a hearing, pursuant

to Pa.R.Crim.P. 907.

      Before the court ruled on either the PCRA petition or counsel’s motion

to withdraw, in May 2018, Mikelonis filed a pro se petition labeled, “Petitioner

Raymond Mikelonis Sr.’s Petitioner [sic] for State Habeas Corpus” (“the

‘habeas’ petition”). See Habeas Petition, filed 5/7/18. Mikelonis’s “habeas”

petition made the following claims:




2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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              The trial court lacked subject matter jurisdiction because
               Mikelonis was not formally arraigned;3

              Mikelonis had a right to be present at the pre-trial
               conference, and counsel was ineffective for failing to
               ensure his presence;4

              Trial counsel was ineffective under United States v.
               Cronic;5

              Mikelonis’s guilty plea was unknowing because he was
               not formally arraigned or present at the pre-trial
               conference.6

Habeas Petition, at 3.

        The PCRA court entered an order denying both the PCRA petition and

the “habeas” petition,7 and this timely appeal followed. We remanded the case

for the PCRA court to advise this Court of the status of PCRA counsel, since

there was no indication in the certified record that the PCRA court had formally

ruled on his petition to withdraw. The PCRA court entered an order granting

counsel’s petition to withdraw, and the case now returns to us. See Order,

filed 12/11/19.

        On appeal, Mikelonis raises the following issues:

           1. Because a claim of subject matter jurisdiction can never
              be waived[,] [d]id the Commonwealth error as a matter
              of law when it misconstrued [Mikelonis’s] petition for


3   “Habeas” petition at 4-6, Reproduced Record at R.47a-R.48a.
4   Id. at 6-22, Reproduced Record at R.48a-R64a.
5   Id. at 11-22, Reproduced Record at R.53a-R.64a.
6   Id. at 22-23, Reproduced Record at R.64a-R.65a.
7 The order reads “NOW, this 27th day of December 2019 . . . .” Order, filed
12/27/18 (emphasis added). The year is an obvious typographical error, as
the order bears a notation showing its filing in 2018.

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            state habeas corpus by dismissing it as a P.C.R.A.
            petition?

         2. Because the certified record shows that [Mikelonis] was
            not formally arraigned[,] [d]id the Commonwealth lose
            subject matter jurisdiction, when it convicted [Mikelonis]
            without him being formally arraigned?

         3. Because pre-trial conference is a criminal stage by where
            the accused has the right to be present[,] [d]id the
            Commonwealth lose subject matter jurisdiction when
            [Mikelonis] was not present at his pre-trial conference?

         4. Because [Mikelonis] did not receive the adequate
            representation of trial counsel that is required by
            Strickland v. Washington, and United States v.
            Cronic[,] [d]id the Commonwealth lose subject matter
            jurisdiction by trial counsel’s ineffectiveness?

Mikelonis’s Br. at 1 (suggested answers omitted).

      Mikelonis’s first and second issues do not merit relief. He presented his

second claim to the PCRA court in his pro se “habeas” petition, but the PCRA

court should not have entertained that petition because at the time, Mikelonis

was still represented by counsel. Any pro se filing by a party represented by

counsel is not properly before the court, and the proper course is for the court

to take no action on such a filing and instead forward it to counsel. See

Commonwealth v. Willis, 29 A.3d 393, 400 (Pa.Super. 2011).8 Further,

even if we treated the “habeas” petition as a response to the Turner/Finley,

we would conclude the issues lack merit.

      Mikelonis first alleges that the Commonwealth erroneously considered

his “habeas” petition as a PCRA petition. This claim fails on the merits. The

8See also Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999) (“We
will not require courts considering PCRA petitions to struggle through the pro
se filings of defendants when qualified counsel represents those defendants”).

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PCRA court properly treated his “habeas” petition as a PCRA petition because

all of his “habeas” issues are cognizable under the PCRA. See 42 Pa.C.S. §

9543(a)(2)(ii), (iii), & (vii). In his second issue, Mikelonis claims that because

he was convicted without being formally arraigned, “the Commonwealth [lost]

subject matter jurisdiction.” Mikelonis’ Br. at 1. He cites no authority for claim

that the failure to arraign him deprived the court of subject matter jurisdiction.

That is unsurprising, as a failure to arraign does not divest the court of

jurisdiction. Arraignment is waivable – indeed, Mikelonis waived arraignment

here – and Pennsylvania courts have often noted such waivers without ever

finding that the absence of an arraignment deprived the trial court of

jurisdiction. See, e.g., Commonwealth v. Zortman, 23 A.3d 519, 520 (Pa.

2011).

      For his third and fourth issues, Mikelonis alleges that the Commonwealth

did not have jurisdiction of the case because Mikelonis was not present during

the pretrial conference and also because of alleged ineffective assistance of

counsel. However, Mikelonis did not properly preserve these issues. Neither

appears in either the “habeas” petition or the PCRA petition. Although the

“habeas” petition did challenge Mikelonis’s absence at a pretrial conference

and alleged counsel ineffectiveness, it did not present either claim in terms of

a lack of subject matter jurisdiction. Mikelonis cannot raise these claims for

the first time on appeal. See Pa.R.A.P. 302. In any event, Mikelonis’s claim of

ineffectiveness fails because the underlying claim that his presence was

required at the pretrial conference is meritless.

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         A claim of ineffectiveness requires that the petitioner prove three

factors, one of which is that “the underlying legal claim . . . has ‘arguable

merit’[.]” Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).

Mikelonis’s underlying claim – that he was unconstitutionally deprived of

counsel – lacks arguable merit.

         “[A] defendant’s presence during all stages of the trial does not extend

to purely procedural matters preparatory to the trial.” Commonwealth v.

McNamara, 662 A.2d 9, 13 (Pa.Super. 1995) (citation omitted). The pretrial

conference was such a “purely procedural” matter preparatory to trial. The

one-page transcript of the conference shows that counsel told the court that

he believed Mikelonis would be pleading guilty and the court set a hearing

date. See N.T., Pretrial Conference, 12/8/11, at 2. We cannot say that such

scheduling matters were critical to the outcome of the case such that

Mikelonis’s      presence    was    required.    See     Pa.R.Crim.P.    602(A);

Commonwealth v. Tharp, 101 A.3d 736, 762 (Pa. 2014) (“the defendant is

guaranteed the right to be present at any stage of the criminal proceeding

that is critical to its outcome if his presence would contribute to the fairness

of the procedure”) (citation omitted). Thus, Mikelonis’s claim of ineffectiveness

fails.

         Order affirmed. Application to Amend Brief, to Proceed Pro Se, and to

Proceed with Brief Already Filed denied as moot.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2020




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