J-S61017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                     Appellee

                v.

DERRICK MICHAEL GLEASON

                     Appellant                No.   224 WDA 2014


       Appeal from the Judgment of Sentence of March 24, 2011
           In the Court of Common Pleas of Potter County
          Criminal Division at No.: CP-53-CR-0000203-2010


COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                     Appellee

                v.

DERRICK MICHAEL GLEASON

                     Appellant                No. 225 WDA 2014


       Appeal from the Judgment of Sentence of March 25, 2011
           In the Court of Common Pleas of Potter County
          Criminal Division at No.: CP-53-CR-0000031-2010



COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                     Appellee

                v.

DERRICK MICHAEL GLEASON

                     Appellant                No.   226 WDA 2014
J-S61017-14


           Appeal from the Judgment of Sentence of March 1, 2011
               In the Court of Common Pleas of Potter County
             Criminal Division at No.: CP-53-CR-0000138-2009


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

MEMORANDUM BY WECHT, J.:                                   FILED NOVEMBER 12, 2014

       Derrick Michael Gleason appeals three judgments of sentence entered

in the Potter County Court of Common Pleas following his convictions for

fleeing or attempting to elude a police officer, three counts of unlawful

restraint, four counts of reckless endangerment, reckless driving, exceeding

the maximum speed limit, criminal conspiracy to commit simple assault, two

counts of simple assault, two counts of disorderly conduct, criminal attempt

to escape, and institutional vandalism. This Court, sua sponte, consolidated

the three cases for the purposes of this direct appeal.                  We affirm the

judgments of sentence.

       At CP-53-CR-203-2010, Gleason was charged with criminal conspiracy,

aggravated      assault,    assault    by      prisoner,    simple   assault,   recklessly

endangering another person, disorderly conduct, and harassment.1                       On

March 1, 2011, Gleason pleaded guilty to one count of conspiracy to commit

simple assault, simple assault, reckless endangerment of another person,



____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
     18 Pa.C.S. §§ 903, 2702(A)(1), 2703, 2701(A)(1), 2705, 5503(A)(1),
2709(A)(1), respectively.



                                            -2-
J-S61017-14



and disorderly conduct. The remaining charges were nolle prossed by the

Commonwealth.

       At CP-53-CR-31-2010, Gleason was charged with one count of

aggravated assault, criminal attempt to escape, institutional vandalism,

simple assault, disorderly conduct, and harassment.2     On March 1, 2011,

Gleason pleaded nolo contendere to criminal attempt to escape, and pleaded

guilty to institutional vandalism, simple assault, and disorderly conduct. The

Commonwealth nolle prossed the remaining counts.

       On October 6, 2009, at CP-53-CR-138-2009, Gleason was charged

with the following crimes by criminal information: fleeing or attempting to

elude officer, three counts of unlawful restraint/serious bodily injury, three

counts of recklessly endangering another person, reckless driving, and

exceeding the maximum speed limit established by forty-seven miles per

hour.3 On February 10, 2010, Gleason pleaded guilty to the count of fleeing

or attempting to elude officer and one count of reckless endangering another

person.    On March 16, 2010, the Commonwealth moved to withdraw the

plea agreement, and the motion was granted on July 28, 2010.




____________________________________________


2
     18 Pa.C.S. §§ 903, 2702(A)(1), 2703, 2701(A)(1), 2705, 5503(A)(1),
and 2709(A)(1) respectively.
3
      75 Pa.C.S. § 3733(A); 18 Pa.C.S. §§ 2902(A)(1), 2705, and 75
Pa.C.S. §§ 3736(a), and 3362(A)(3), respectively.



                                           -3-
J-S61017-14



        On December 16, 2010, the trial court presided over a jury trial, which

yielded the following facts: On March 15, 2009, Gleason had consumed

several beers at the Northwoods Tavern. Gleason’s Brief at 17. He left the

tavern and traveled to Sheetz. Id. Upon Gleason’s departure from Sheetz,

Coudersport Police Officer William Wenzel (“Wenzel”) followed Gleason, due

to the fact that Wenzel observed Gleason accelerate quickly upon leaving the

Sheetz parking lot. Notes of Testimony (“N.T.”), Dec. 16, 2010, at 88. After

Gleason turned onto Route 6, Wenzel observed him traveling at 72 miles per

hour in a zone with a 25 miles per hour speed limit. N.T. at 89. After being

pursued by Wenzel, Gleason stopped his vehicle in the area behind the

Coudersport Post Office, and fled the scene on foot. N.T. at 98. Gleason

was arrested approximately one to two weeks after the incident.        N.T. at

105.

        The jury convicted Gleason on all counts, with the exception of one

count      of    unlawful      restraint     with   serious   bodily    injury.

Gleason was sentenced, inter alia, to an aggregate of no less than thirty-two

months and not more than sixty-four months in a state correctional

institution for all three cases.

        On March 17, 2011, Gleason filed a notice of appeal with this Court for

his sentence at CP-53-CR-138-2009; and on March 29, 2011, Gleason filed a

notice of appeal with this Court at CP-53-CR-31-2010 and CP-53-CR-203-

2010.    On April 4, 2011, the trial court ordered Gleason to file a concise

statement of errors complained of on appeal collectively for all three cases,

                                       -4-
J-S61017-14



which    Gleason   filed   on   May   10,   2011.   On   April   12,   2013,   the

Commonwealth moved to quash the appeals, which was granted by this

Court due to the fact that Gleason’s counsel had failed to submit briefs.

        On June 11, 2013, Gleason filed a second notice of appeal to this

Court.    On July 2, 2013, the trial court ordered Gleason to file a concise

statement of errors complained of on appeal for all three cases, and Gleason

filed his statement on July 17, 2013. On August 30, 2013, this Court, sua

sponte, quashed Gleason’s appeal as untimely without prejudice, allowing to

seek an appeal in the trial court nunc pro tunc.

        On January 9, 2014, the trial court reinstated Gleason’s rights to file

an appeal with this Court nunc pro tunc. On January 10, 2014, Gleason filed

a third notice of appeal to this Court. On January 31, 2014, the trial court

ordered Gleason to file a concise statement of errors complained of on

appeal for all three cases, which Gleason filed on February 12, 2014.          On

February 12, 2014, the trial court filed an opinion pursuant to Pa.R.A.P.

1925(a).

        Gleason raises the following issues for our review:

        Was the trial counsel ineffective and should the court reverse
        and remand all [of Gleason’s] convictions where:

           a. Trial counsel failed to provide adequate time to discuss
              the plea bargains at cases 31 and 203 CR 2010 as to
              prevent [Gleason] from tendered acknowledging and
              intelligent informed plea/

           b. At 138 CR 2009, trial counsel failed to call all known
              witnesses available at the trial of December 16, 2010?



                                       -5-
J-S61017-14


         c. At 138 Criminal Division 2009, trial counsel was
            ineffective for failing to prepare and call [Gleason] to
            testify on his own behalf at jury trial and to inform
            [Gleason] of his right to testify and must consult with
            the defendant so as to ensure that any decision to
            forego testifying is knowing and intelligent.

         d. Defense counsel failed to seek recusal of the District
            Attorney, Andy Watson, Esquire where one of the co-
            defendants was a distant cousin of the District Attorney
            which was disclosed to all parties prior to trial of
            December 16, 2010?

Gleason’s Brief at 14.

      Before we address the merits of the issues that Gleason raises on

appeal, we first must address whether direct appeal is an appropriate forum

to raise an ineffective assistance of counsel (“IAC”) claim.      It is not, and

accordingly we affirm the judgments of sentence and dismiss Gleason’s

claims without prejudice.

      Recently in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our

Supreme Court considered the “reviewability of claims of ineffective

assistance of counsel on post-verdict motions and direct appeal.”         Id. at

563. Following a comprehensive review of the language codified in the Post

Conviction Relief Act (“PRCA”), see 42 Pa.C.S. §§ 9541-46, and decisions

from our courts, the Supreme Court reaffirmed the principle that IAC claims

must be deferred until collateral review, and, thus are not reviewable on

direct appeal.     Id.    The Court crafted two exceptions to this general

proscription.    First, the Court held that a trial court may, in its discretion,

entertain IAC claims where extraordinary circumstances exist such that



                                       -6-
J-S61017-14



review of the claim would best serve the interests of justice.   Id. at 563,

577. Second, the Court “repose[d] discretion in trial courts” to review IAC

claims during post-sentence motions “only if (1) there is good cause shown,

and (2) the unitary review so indulged in preceded by the defendant’s

knowing and express waiver of his entitlement to seek PCRA review from his

conviction and sentence, including an express recognition that the waiver

subjects further collateral review to the time and serial restrictions of the

PCRA.” Id. at 563-64, 577-80.

     In the instant case, upon careful review of Gleason’s brief and the

record, there are no extraordinary circumstances that would warrant this

Court to entertain Gleason’s IAC claim on direct appeal.    There is also no

indication from the record that Gleason waived his right to collateral review

under the PCRA. See also Commonwealth v. Barnett, 25 A.3d 371 (Pa.

Super. 2011) (en banc) (holding that this Court cannot review ineffective

assistance of counsel claims on direct appeal absent a defendant’s waiver of

PCRA review). Therefore, Gleason’s IAC claims are not cognizable.

     Gleason’s claim of ineffective assistance of counsel is dismissed

without prejudice to be raised if he chooses in a subsequent timely PCRA

petition. Judgments of sentence affirmed.




                                    -7-
J-S61017-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2014




                          -8-
