J-S34015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JOSHUA MICHAEL PROPER                    :
                                          :
                    Appellant             :   No. 2104 MDA 2019

          Appeal from the PCRA Order Entered December 10, 2019
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0001592-2017


BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                        FILED AUGUST 25, 2020

      Joshua Michael Proper appeals from the order of December 10, 2019,

entered in the Court of Common Pleas of Lancaster County, which dismissed,

without a hearing, his first petition brought under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. On appeal, Proper claims he received

ineffective assistance of counsel. For the reasons discussed below, we affirm.

      We take the underlying facts and procedural history in this matter from

the PCRA court’s January 27, 2020 opinion.

      On February 19, 2017, Proper was charged with two counts of
      criminal homicide, two counts of robbery, burglary and criminal
      conspiracy[a] from an incident involving the brutal torture-killings
      of two disabled brothers, Richard Walton and Leroy Kinsey, on
      February 19, 2017. Proper and his co-conspirator, Juan Cristo-
      Munoz,[b] forced their way into the brothers’ home in Lancaster
      City, demanded money from the victims and then repeatedly
      stabbed them. Kinsey was stabbed at least ten times. Walton
      was stabbed 54 times with a sword taken from the home. The co-
      defendants then fled to the basement of the home, where officers
J-S34015-20


     ultimately found them after responding to a 911 call for a burglary
     in progress placed by a third occupant of the home who had fled
     to the roof.

           [a] 18 Pa.C.S.A. § 2501(A), 18 Pa.C.S.A. §
           3701(a)(1)(i), 18 Pa.C.S.A. § 3502(a)(1)(i), and 18
           Pa.C.S.A. § 903(A), respectively.

           [b]On February 19, 2017, the Commonwealth charged
           Cristo-Munoz with the same offenses at Information
           No. 1591-2017.

     Proper’s preliminary hearing was initially scheduled for March 3,
     2017. On February 22, 2017, the Lancaster County Office of the
     Public Defender, [ ] David L. Blanck, Esquire, and Patricia K.
     Spotts, Esquire, [were] assigned to represent Proper. At defense
     counsels’ request, the preliminary hearing was continued, and on
     March 10, 2017, Proper waived his preliminary hearing.

     Pursuant to Pa.R.Crim.P. 802, the Commonwealth filed a Notice of
     Intent to Seek a Sentence of Death against Proper on March 22,
     2017. Specifically, the Commonwealth believed it could prove
     four statutory aggravating circumstances:           (1) defendant
     committed a killing while in the perpetration of a felony,
     specifically, burglary and robbery; (2) in the commission of the
     offense, the defendant knowingly created a grave risk of death to
     another person in addition to the victims of the offense (Ryan
     Taska); (3) the killing was committed by means of torture (victim
     Leroy Kinsey); and (4) the defendant has committed multiple
     murders.      Consequently, a pre-trial conference was held in
     chambers on April 6, 2017. In attendance at the conference were
     counsel for Proper, counsel for co-defendant Cristo-Munoz, and
     the assistant district attorney prosecuting the cases.

     Defense counsel Blanck indicated at that time that the Proper
     defense team would be retaining a mitigation specialist. . . .
     Attorney Blanck anticipated that it could take up to one and one-
     half years at a minimum to complete the investigation. It was
     understood by Attorney Blanck and the [trial c]ourt that there
     would be a general continuance on the defense to allow counsel
     to prepare their case, and that the Commonwealth would continue
     to produce discovery as it was received. No formal continuance
     forms were submitted to the [trial c]ourt at that time, nor was any
     formal allocation of time for purposes of Pa.R.Crim.P. 600 put on

                                    -2-
J-S34015-20


     the record. Attorney Blanck’s understanding at the conclusion of
     the pretrial conference was that once mitigation was completed,
     counsel would notify the [trial c]ourt that they were ready to
     discuss possible trial dates.

     Just days later, on April 10, 2017, the Commonwealth filed a
     notice of intent to consolidate the cases of the two co-defendants,
     Proper and Cristo-Munoz, pursuant to Pa.R.Crim.P. 582. The
     formal arraignment for Proper took place on April 13, 2017. The
     bulk of the Commonwealth’s evidence was forwarded to defense
     counsel on June 9, 2017, with the DNA results being sent on
     September 6, 2017.

     On February 13, 2018, approximately one year after the charges
     were filed, the Commonwealth requested a pre-trial status
     conference to address the status of mitigation and to assess the
     need to schedule a trial date. The conference took place in
     chambers on February 20, 2018. At that time, defense counsel
     for Proper executed a Rule 600 waiver and continuance request to
     September 17, 2018.

     In exchange for the Commonwealth dropping the death penalty,
     Proper agreed to enter a negotiated guilty plea to all charges on
     September 24, 2018. [The trial c]ourt accepted the plea and
     imposed concurrent mandatory sentences of life without the
     possibility of parole on the two first-degree murder convictions.
     The following concurrent sentences, as per the negotiated plea
     agreement, were further ordered: (1) 1 to 2 years’ incarceration
     on the burglary conviction; (2) 6 to 12 years’ incarceration on the
     robbery conviction; (3) 6 to 12 years’ incarceration on the second
     robbery conviction; and (4) 1 to 2 years’ incarceration on the
     criminal conspiracy to commit burglary conviction. Proper was
     ordered to pay restitution in the amount of $33,470.60, plus costs.
     No post sentence motion or direct appeal was filed.

     On August [14], 2019, Proper filed, pro se, a timely petition for
     post conviction collateral relief which challenged the effectiveness
     of his trial counsel. Daniel C. Bardo, Esquire, was appointed to
     represent Proper on his collateral claims and was granted leave to
     file an amended petition by October 21, 2019.

     On October 15, 2019, an amended petition was filed by PCRA
     [c]ounsel raising a single issue, namely that Proper was denied
     the effective assistance of counsel when he was advised by

                                    -3-
J-S34015-20


      Attorneys Blanck and Spotts to plead guilty rather than file and
      litigate a motion to dismiss his charges pursuant to Pa.R.Crim.P.
      600. Proper essentially charged that his guilty plea was coerced
      by the alleged deprivation of his speedy trial rights. He challenged
      the voluntariness of his plea based on counsel’s advice which
      failed to consider a Rule 600 motion. Proper claimed that had
      counsel filed and litigated a Rule 600 motion, the [trial c]ourt
      “would have dismissed the charges” against him, and no guilty
      plea would have been entered.

      In [the PCRA court’s] Pa.R.Crim.P. 907 [Notice and] Opinion dated
      November 4, 2019, [it] found that Proper had failed to
      demonstrate that his Rule 600 claim was of arguable merit, and
      he had further failed to demonstrate any prejudice in counsel’s
      failure to pursue a meritless Rule 600 claim. . . . Moreover, on
      review, considering all the circumstances attendant to the plea,
      including the adequacy of the plea colloquy, and Proper’s
      responses therein, and the representations by defense counsel,
      [it] found that the guilty plea was knowing, voluntary and
      intelligent, and was properly accepted. Proper was given 30 days
      in which to file a second amended petition or to otherwise respond
      to the Notice pursuant to Pa.R.Crim.P. 907. No response to the
      Rule 907 Notice was filed. Accordingly, on December 10, 2019, a
      final order was entered denying Proper’s amended PCRA petition.

      A timely notice of appeal to the Superior Court of Pennsylvania
      was filed on December 23, 2019. Pursuant to [the PCRA c]ourt’s
      directive, Proper furnished a statement of errors complained of on
      appeal. . . . [On January 27, 2020, the PCRA court issued an
      opinion.].

PCRA Court Opinion, 1/27/20, at 1-7 (some footnotes, citations, and record

citations omitted).

      Our standard of review is settled.     We review the denial of a post-

conviction petition to determine whether the record supports the PCRA court’s

findings and whether its order is otherwise free of legal error.             See

Commonwealth v. Faulk, 21 A.3d 1196, 1199 (Pa. Super. 2011). To be

eligible for relief pursuant to the PCRA, Proper must establish, inter alia, his

                                     -4-
J-S34015-20


conviction or sentence resulted from one or more of the enumerated errors or

defects found in 42 Pa.C.S.A. § 9543(a)(2). See 42 Pa.C.S.A. § 9543(a)(2).

He must also establish the issues raised in the PCRA petition have not been

previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An allegation

of error “is waived if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). Further,

            . . . a PCRA petitioner is not automatically entitled to an
      evidentiary hearing.     We review the PCRA court’s decision
      dismissing a petition without a hearing for an abuse of discretion.

                   [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. It is within the
            PCRA court’s discretion to decline to hold a hearing if
            the petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. It is
            the responsibility of the reviewing court on appeal to
            examine each issue raised in the PCRA petition in light
            of the record certified before it in order to determine
            if the PCRA court erred in its determination that there
            were no genuine issues of material fact in controversy
            and in denying relief without conducting an
            evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted, brackets in original).

      On appeal, Proper claims, “plea counsel [were] ineffective when they

failed to file a Rule 600 motion, waived his Rule 600 rights for 209 days

without a reasonable basis, and advised him to plead guilty when Rule 600

would have entitled him to dismissal.” Appellant’s Brief, at 4. We disagree.




                                     -5-
J-S34015-20


      “A criminal defendant has the right to effective counsel during a plea

process as well as during trial.” Commonwealth v. Rathfon, 899 A.2d 365,

369 (Pa. Super. 2006) (citation omitted).          Further, “[a]llegations of

ineffectiveness in connection with the entry of a guilty plea will serve as a

basis for relief only if the ineffectiveness caused the defendant to enter an

involuntary or unknowing plea.”    Commonwealth v. Hickman, 799 A.2d

136, 141 (Pa. Super. 2002) (citation omitted). Also, “[w]here the defendant

enters his plea on the advice of counsel, the voluntariness of the plea depends

upon whether counsel’s advice was within the range of competence demanded

of attorneys in criminal cases.” Id. (internal quotation marks and citations

omitted).

      We presume counsel is effective, and an appellant bears the burden to

prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa.

2012). The test for ineffective assistance of counsel is the same under both

the Federal and Pennsylvania Constitutions. See Strickland v. Washington,

466 U.S. 668, 687-88 (1984); see also Commonwealth v. Jones, 815 A.2d

598, 611 (Pa. 2002). An appellant must demonstrate: (1) his underlying

claim is of arguable merit; (2) the particular course of conduct pursued by

counsel did not have some reasonable basis designed to effectuate his

interests; and (3) but for counsel’s ineffectiveness, there is a reasonable

probability that the outcome of the proceedings would have been different.

See Commonwealth v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015).               A


                                     -6-
J-S34015-20


failure to satisfy any prong of the test for ineffectiveness will require rejection

of the claim. See Jones, 815 A.2d at 611. In order to satisfy the prejudice

requirement, Proper must show that “there is a reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Rathfon, 899 A.2d at 370 (citation omitted).

      “A plea of guilty effectively waives all nonjurisdictional defects and

defenses.” Commonwealth v. Gibson, 561 A.2d 1240, 1242 (Pa. Super.

1989) (citation omitted). A defendant who pleads guilty may not raise a Rule

600 challenge unless he can show the Rule 600 violation affected the

voluntariness of the plea itself. Id.; see also Commonwealth v. Barbaro,

94 A.3d 389, 391 n.2 (Pa. Super. 2014) (stating that when a defendant pleads

guilty, he waives all claims except the legality of his sentence and the validity

of his plea).

      Instantly, Proper failed to raise a Rule 600 claim at any time before the

trial court.    Proper did not move to withdraw his plea either.    He also failed

to pursue a direct appeal. Therefore, his Rule 600 challenge is undoubtedly

waived. See 42 Pa.C.S.A. § 9544(b).

      Recognizing this, Proper phrases his current challenge as a claim counsel

was ineffective for advising him to plead guilty when he had a viable Rule 600

claim. However, at no point in his brief on appeal does Proper ever discuss his




                                       -7-
J-S34015-20


plea, its voluntariness, or state counsel coerced him into accepting the plea.1

Appellant’s Brief, at 8-15.        Rather, Proper’s argument consists largely of

boilerplate on Rule 600 and a claim the PCRA court erred in adopting the

transcript from the Cristo-Munoz pre-trial conference. See id. Proper’s claim

is not that the plea itself was involuntary, but he would not have been required

to plead guilty if counsel had filed a Rule 600 motion because the charges

against him would him been dismissed. See id.

       Initially, we agree with the Commonwealth, Proper waived any

challenge to the PCRA court’s reliance on the Cristo-Munoz pre-trial

conference transcript by failing to file a response to the Rule 907 notice and

opinion and by raising the issue for the first time in his Rule 1925(b)

statement. See Appellee’s Brief, at 17-19.

       In his reply brief, Proper argues he was not obligated to respond to the

Rule 907 notice and opinion. He asserts that a response to the Rule 907 notice

and opinion was not the proper place to challenge the court’s reliance on the

transcript. Furthermore, he claims he did not become aware the PCRA court

would be relying on the transcript until it issued its Rule 1925(b) opinion. See

Appellant’s Reply Brief, at 6-8. We disagree.


____________________________________________


1 Because Proper never discusses his plea colloquy or indicates in any other
respect his plea involuntary, other than the failure to file a Rule 600 motion,
we will not further discuss the colloquy. In any event, were we to further
address it we would find his plea voluntary for the reasons discussed in the
PCRA court’s Rule 907 notice and opinion. See PCRA Court Rule 907 Notice
and Opinion, 11/04/19, at 12-15.

                                           -8-
J-S34015-20


      Proper’s claim he was somehow unaware the PCRA court would be

depending on the Cristo-Munoz pre-trial conference transcript in making

factual findings about the Rule 600 issue is disingenuous. While the PCRA

court did not formally adopt the transcript until the Rule 1925(b) opinion, see

PCRA Ct. Op., 1/27/20, at 9, even a cursory reading of the Rule 907 notice

and opinion makes it readily apparent the PCRA court was relying on Proper’s

counsel’s testimony at this conference in concluding there was no basis for a

Rule 600 motion. See id., at 7-12.

      We have stated:

      [t]he purpose of a Rule 907 pre-dismissal notice is to allow a
      petitioner an opportunity to seek leave to amend his petition and
      correct any material defects, the ultimate goal being to permit
      merits review by the PCRA court of potentially arguable claims.
      The response to the Rule 907 notice is an opportunity for a
      petitioner and/or his counsel to object to the dismissal and
      alert the PCRA court of a perceived error, permitting the
      court to discern the potential for amendment. The response
      is also the opportunity for the petitioner to object to counsel’s
      effectiveness at the PCRA level.

Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa. Super. 2015) (citations

and quotation marks omitted, emphasis added).

      Proper first raised the claim regarding the failure to file a Rule 600

motion in his amended PCRA petition. The cursory claim stated therein, that

counsel was ineffective for failing to file a Rule 600 motion and/or waiving his

Rule 600 rights, is inadequate to alert the PCRA court regarding the underlying

basis of his claim. See Amended PCRA Petition, 10/15/19, at 2. It did not




                                     -9-
J-S34015-20


include affidavits from trial counsel or Proper regarding the factual basis of

the contention.2

       A response to the Rule 907 notice and opinion would have alerted the

PCRA court to a perceived legal error, namely Proper’s belief the court could

not rely on a record developed in his co-defendant’s consolidated case. More

importantly, it would have allowed Proper to seek leave to amend his PCRA

petition to flesh out his claim and refute the PCRA’s court factual finding an

evidentiary hearing was unnecessary because the record demonstrated all

delays in the case were at the request of Proper’s counsel. Therefore, we

disagree with Proper’s argument it was unnecessary to file a response to the

Rule 907 notice and opinion. He has waived his challenge to the PCRA court’s

use of the Cristo-Munoz pre-trial conference transcript. See Smith at 1054;

see also Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super.

2011) (issues raised for first time in Rule 1925(b) statement are waived).

       Proper also argues his counsel was ineffective for signing the Rule 600

waiver and failing to file a Rule 600 motion. See Appellant’s Brief at 8-11.

We disagree.

       Ordinarily, upon the proper and timely filing of a Rule 600 motion, it

would be the Commonwealth’s burden to establish due diligence was exercised



____________________________________________


2 This Court has thoroughly reviewed both the record below and the briefs on
appeal and is still unable to ascertain the basis of Proper’s belief he had a
viable Rule 600 claim.

                                          - 10 -
J-S34015-20


in bringing a defendant to trial. The procedural posture of this case, however,

is such that Proper, upon collateral review, is attempting to demonstrate plea

counsel was ineffective for failing to file a Rule 600 motion and/or signing Rule

600 waivers, and thus, Proper bears both the burdens of production and

persuasion in demonstrating he was prejudiced by the failure of trial counsel

to file a Rule 600 motion.   See Commonwealth v. Chmiel, 889 A.2d 501,

540 (Pa. 2005) (stating that the burden of proving ineffective assistance of

counsel rests with Appellant); see also Commonwealth v. Natividad, 938

A.2d 310, 321–22 (Pa. 2007) (noting appellant bears burden of pleading and

proving each of Pierce prongs on appeal).

      In his brief to this Court, Proper fails to develop any substantive

argument for why the continuances constituted ineffective assistance in this

case. This is particularly true given the continuances were granted to allow

counsel to develop a mitigation defense in a death penalty case.

      Proper baldly argues “[t]he record on its face support a Rule 600

violation.” Appellant’s brief at 9. However, Proper never disputes the PCRA

court’s factual findings the delays were attributable to him and those delays

were to aid in preparing a mitigation defense.

      Proper contends a Rule 600 waiver signed solely by counsel “is not

always valid.” Id. at 11. However, he does not explain why the waiver in this

particular case was not valid, never contends he was unaware of the




                                     - 11 -
J-S34015-20


continuances or objected to them, and never demonstrates how the delays

prejudiced him.

       As explained above, the burden of proof rests with an appellant when

he challenges a Rule 600 violation as part of his ineffectiveness of counsel

claim within a PCRA context. Here, Proper does not develop an argument in

his brief sufficient to suggest the Commonwealth failed to exercise due

diligence bringing him to trial, there was any basis whatsoever for a Rule 600

motion, or that absent’s counsel’s failure he would not have pleaded guilty.3

We therefore conclude Proper has failed to show the arguable-merit prong of

his claim that trial counsel was ineffective for failing to file a Rule 600 motion.

See Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012) (Failure to prove

any prong of [the Pierce] test will defeat an ineffectiveness claim). As a

result, his claims of ineffective assistance of plea counsel lack merit.




____________________________________________


3 As noted above, Proper’s counsel, David Blanck, squarely testified at the
March 12, 2018 conference that he requested a continuance to prepare a
mitigation defense; this continuance would need to be for at least 1-2 years;
and he understood this time was attributable to the defense. See N.T., Pretrial
Conference, 3/02/18, at 33-37. The lead prosecutor in the case, Christine
Wilson, also testified at the conference and confirmed this testimony. See id.
at 9-10. As noted above, Proper has produced nothing that would call this
testimony into doubt. Given this, we are unable to ascertain any basis for
Proper’s belief a Rule 600 motion would have resulted in dismissal of the
charges or the failure to file one somehow caused him to render an involuntary
guilty plea. Given the overwhelming nature of the evidence in this particular
case and that counsel was able to negotiate a plea during this period which
took the death penalty off the table, we see no basis for Proper’s protestations
of counsel’s ineffectiveness.

                                          - 12 -
J-S34015-20


      Accordingly, for the reasons discussed above, we affirm the PCRA court’s

dismissal of Appellant’s PCRA petition without a hearing.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/25/2020




                                    - 13 -
                                                    Circulated 07/30/2020 10:17 AM




                                          February 5, 2020

                                          Re: Joshua M. Proper
                                          Cp Cr No: 1592-2017
                                          Superior Cr No: 2104 MDA 2019


                       Index of Opinion
1. Index of Opinion
2. Opinion and Order
                                                                                             2_Opinion and Order




     IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
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BY:     ASHWORTH, P.J., JANUARY 27, 2020


        Joshua Michael Proper has filed a direct appeal to the Superior Court of

Pennsylvania from the denial of his amended petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. This Opinion is written

pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, and for the

following reasons, this Court requests that this appeal be dismissed.


I.       Background


        The relevant facts and procedural history may be summarized as follows. On

February 19, 2017, Proper was charged with two counts of criminal homicide, two

counts of robbery, burglary and criminal conspiracy1 from an incident involving the

brutal torture-killings of two disabled brothers, Richard Walton and Leroy Kinsey, on

February 19, 2017. Proper and his co-conspirator, Juan Cristo-Munoz, 2 forced their


          Pa.C.S.A. § 2501(A), 18 Pa.C.S.A. § 3701(a)(1)(i), 18 Pa.C.S.A. § 3502(a)(1)(i), and
        118

18 Pa.C.S.A. § 903(A), respectively.
        2
        0n February 19, 2017, the Commonwealth charged Cristo-Munoz with the same
criminal offenses at Information No. 1591-2017.
                                                                                        2_Opinion and Order




way into the brothers' home in Lancaster City, demanded money from the victims and

then repeatedly stabbed them. Kinsey was stabbed at least ten times. Walton was

stabbed 54 times with a sword taken from the home. Notes of Testimony (N.T.), Guilty

Plea/Sentencing at 23. The co-defendants then fled to the basement of the home,

where officers ultimately found them after responding to a 911 call for a burglary in

progress placed by a third occupant of the home who had fled to the roof. Id. at 21-22.

        Proper's preliminary hearing was initially scheduled for March 3, 2017. On

February 22, 2017, the Lancaster County Office of the Public Defender, specifically

David L. Blanck, Esquire, and Patricia K. Spotts, Esquire, was assigned to represent

Proper. At defense counsels' request, the preliminary hearing was continued, and on

March 10, 2017, Proper waived his preliminary hearing.

       Pursuant to Pa.R.Crim.P. 802, the Commonwealth filed a Notice of Intent to

Seek a Sentence of Death against Proper on March 22, 2017. Specifically, the

Commonwealth believed it could prove four statutory aggravating circumstances: (1)

defendant committed a killing while in the perpetration of a felony, specifically, burglary

and robbery; (2) in the commission of the offense, the defendant knowingly created a

grave risk of death to another person in addition to the victims of the offense (Ryan

Taska); (3) the killing was committed by means of torture (victim Leroy Kinsey); and (4)

the defendant has committed multiple murders.3 Consequently, a pre-trial conference


      3Section 9711 of the Crimes Code provides in relevant part:
      (d) Aggravating circumstances.- Aggravating circumstances shall be
      limited to the following:
      (6) The defendant committed a killing while in the perpetration of a felony.
      (7) In the commission of the offense the defendant knowingly created a
      grave risk of death to another person in addition to the victim of the offense.

                                               2
                                                                                         2_Opinion and Order




was held in chambers on April 6, 2017. 4 In attendance at the conference were counsel

for Proper, counsel for co-defendant Cristo-Munoz, and the assistant district attorney

prosecuting the cases.

       Defense counsel Blanck indicated at that time that the Proper defense team

would be retaining a mitigation specialist and that they would need sufficient time for

the mitigation specialist to complete the investigation, which was "of paramount

importance" in a death penalty case.5 See N.T., Cristo-Munoz Pretrial Conference,

March 2, 2018 (No. 1591-2017) at 34.6 Attorney Blanck anticipated that it could take up

to one and one-half years at a minimum to complete the investigation. Id. at 35. It was

understood by Attorney Blanck and the Court that there would be a general

continuance on the defense to allow counsel to prepare their case, and that the

Commonwealth would continue to produce discovery as it was received. Id. at 36-37.




       (8) The offense was committed by means of torture.

       (11) The defendant has been convicted of another murder committed in any
      jurisdiction and committed either before or at the time of the offense at issue.
42 Pa.C.S.A. §§ 9711(d)(6), (7), (8) and (11).
       4
        It is common practice in the Court of Common Pleas of Lancaster County, once a death
penalty case has been assigned, to conduct an informal conference with counsel in chambers
to assess the procedural posture of the case and to discuss how the parties are going to
proceed. See N.T., Cristo-Munoz Pretrial Conference, March 2, 2018 (No. 1591-2017) at 10.
        5Although our Supreme Court has held that there is no per se requirement that, in all
capital cases, counsel must employ a separate mitigation specialist, see Commonwealth v.
Baumhammers, 625 Pa. 354, 381, 92 A.3d 708, 724 (2014), "[c]apital counsel have an
obligation to pursue all reasonably available avenues for developing mitigation evidence."
Commonwealth v. Rega, 593 Pa. 659, 708, 933 A.2d 997, 1025 (2007).
       6Attorney Blanck was subpoenaed by the Commonwealth to testify at a later Rule 600
Hearing for co-defendant Cristo-Munoz regarding his understanding of the April 6, 2017, pretrial
conference. N.T., Cristo-Munoz Pretrial Conference, March 2, 2018 (No. 1591-2017) at 33.

                                               3
                                                                                            2_Opinion and Order




No formal continuance forms were submitted to the Court at that time, nor was any

formal allocation of time for purposes of Pa.R.Crim.P. 600 put on the record. Id. at 37-

38. Attorney Blanck's understanding at the conclusion of the pretrial conference was

that once mitigation was completed, counsel would notify the Court that they were

ready to discuss possible trial dates. Id. at 36.

        Just days later, on April 10, 2017, the Commonwealth filed a notice of intent to

consolidate the cases of the two co-defendants, Proper and Cristo-Munoz, pursuant to

Pa.R.Crim.P. 582.7 The formal arraignment for Proper took place on April 13, 2017.

The bulk of the Commonwealth's evidence was forwarded to defense counsel on June

9, 2017, with the DNA results being sent on September 6, 2017. See N.T., Cristo­

Munoz Pretrial Conference, March 2, 2018 (No. 1591-2017) at 10-11, 13.

       On February 13, 2018, approximately one year after the charges were filed, the

Commonwealth requested a pre-trial status conference to address the status of

mitigation and to assess the need to schedule a trial date. The conference took place

in chambers on February 20, 2018.8 At that time, defense counsel for Proper executed


      7Rule 582(A) provides, in relevant part:
      Defendants charged in separate indictments or informations may be tried
      together if they are alleged to have participated in the same act or transaction
      or in the same series of acts or transactions constituting an offense or offenses.
Pa.R.Crim.P. 582(A)(2).
       8As a result of conversations held with defense counsel for co-defendant Cristo-Munoz
during this status conference with the Court, a time allocation hearing was scheduled for March
2, 2018, to determine whether the Commonwealth exercised due diligence in bringing Cristo­
Munoz to trial. N.T., Cristo-Munoz Pretrial Conference, March 2, 2018 (No. 1591-2017) Hearing
at 3. No formal Rule 600 motion had yet been filed by Cristo-Munoz so it was the Court's
intention to simply make a determination of time allocation up to the date of the hearing. Id. at
3-4. At the conclusion of the hearing, the parties were told to submit briefs and a proposed
order setting forth the allocation of time attributable to each party. Id. at 42. On March 12, 2018,
Cristo-Munoz filed a Rule 600 motion and brief in support thereof. The Commonwealth,

                                                 4
                                                                                             2_Opinion and Order




a Rule 600 waiver and continuance request to September 17, 2018.9

        In exchange for the Commonwealth dropping the death penalty, Proper agreed

to enter a negotiated guilty plea to all charges on September 24, 2018. N.T., Guilty

Plea/Sentencing at 3. This Court accepted the plea and imposed concurrent

mandatory sentences of life without the possibility of parole on the two first-degree

murder convictions. 1 0 Id. at 32. The following concurrent sentences, as per the

negotiated plea agreement, were further ordered: (1) 1 to 2 years' incarceration on the

burglary conviction; (2) 6 to 12 years' incarceration on the robbery conviction; (3) 6 to

12 years' incarceration on the second robbery conviction; and (4) 1 to 2 years'

incarceration on the criminal conspiracy to commit burglary conviction. Id. at 33.

Proper was ordered to pay restitution in the amount of $33,470.60, 11 plus costs. 12 Id.

No post sentence motion or direct appeal was filed.

       On August 12, 2019, 1 3 Proper filed, prose, a timely 14 petition for post conviction


however, did not file a responsive brief because, in exchange for the Commonwealth dropping
the death penalty, Cristo-Munoz agreed to enter a guilty plea to all charges. Id. at 30.
       9
      The Rule 600 waiver and continuance request did not bear Proper's signature. See
Amended Petition, Ex. "A"
       I0
         Pennsylvania law mandates that if a person is found guilty of first degree murder and
does not receive the death penalty he or she will receive a sentence of life imprisonment
without the possibility of parole. See 18 Pa.C.S.A. § 1102(a)(1).
       11
          Proper is jointly and severally liable with his co-defendant, Cristo-Munoz, for this
restitution amount. N.T., Guilty Plea/Sentencing at 33.
       12
          Proper acknowledged and agreed that he has the ability to pay all fines, costs and
restitution, and waived any further pre-sentence determination of ability to pay. See Plea
Agreement.

        13The pleading is deemed filed on the date of mailing, August 12, 2019, rather than the
date of docketing, August 14, 2019, pursuant to the "prisoner mailbox rule." See
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011) ("Under the prisoner

                                                 5
                                                                                             2_Opinion and Order




collateral relief which challenged the effectiveness of his trial counsel. See Pro Se

PCRA Petition. Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal

Procedure, Daniel C. Bardo, Esquire, was appointed to represent Proper on his

collateral claims and was granted leave to file an amended petition by October 21,

2019.

        On October 15, 2019, an amended petition was filed by PCRA Counsel raising a

single issue, namely that Proper was denied the effective assistance of counsel when

he was advised by Attorneys Blanck and Spotts to plead guilty rather than file and

litigate a motion to dismiss his charges pursuant to Pa.R.Crim.P. 600. See Amended

PCRA Petition at 1111. Proper essentially charged that his guilty plea was coerced by

the alleged deprivation of his speedy trial rights. He challenged the voluntariness of his

plea based on counsel's advice which failed to consider a Rule 600 motion. Proper

claimed that had counsel filed and litigated a Rule 600 motion, the Court "would have

dismissed the charges" against him, and no guilty plea would have been entered. See

Amended PCRA Petition at 1112.




mailbox rule, we deem a pro se document filed on the date it is placed in the hands of prison
authorities for mailing.").
        14
           Pursuant to 42 Pa.C.S.A. § 9545(b), a petition for relief must be filed within one year of
the date the judgment of sentence becomes final. For purposes of the PCRA, a judgment of
sentence becomes final at the conclusion of direct review, including discretionary review in the
Supreme Court of Pennsylvania, or at the expiration of the time for seeking such review. Id. at
§ 9545(b)(3). See also Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. Super. 2012). As Proper
did not file a direct appeal with the Pennsylvania Superior Court, his judgment of sentence
became final 30 days after the judgment of sentence was entered, or on October 24, 2018,
when the period for filing an appeal with the Superior Court expired. Proper filed his pro se
PCRA petition on August 12, 2019; as a result, it was timely.

                                                 6
                                                                                        2_Opinion and Order




        In my Pa.R.Crim.P. 907 Opinion dated November 4, 2019, I found that Proper

had failed to demonstrate that his Rule 600 claim was of arguable merit, and he had

further failed to demonstrate any prejudice in counsel's failure to pursue a meritless

Rule 600 claim. See Commonwealth v. Gibson, 561 A.2d 1240, 1242 (Pa. Super.

1989). Moreover, on review, considering all the circumstances attendant to the plea,

including the adequacy of the plea colloquy, and Proper's responses therein, and the

representations by defense counsel, I found that the guilty plea was knowing, voluntary

and intelligent, and was properly accepted. Proper was given 30 days in which to file a

second amended petition or to otherwise respond to the Notice pursuant to

Pa.R.Crim.P. 907. No response to the Rule 907 Notice was filed. Accordingly, on

December 10, 2019, a final order was entered denying Proper's amended PCRA

petition.

       A timely notice of appeal to the Superior Court of Pennsylvania was filed on

December 23, 2019. Pursuant to this Court's directive, Proper furnished a statement of

errors complained of on appeal which raises one issue: whether the Court improperly

dismissed Proper's amended PCRA petition without a hearing after improperly relying

on "extra-record evidence." Concise Statement at 1J 1.


II.    Discussion


       A.     Extra-Record Evidence


       Proper claims his amended PCRA petition raised a "genuine factual dispute" as

to trial counsel's ineffectiveness for failing to file and litigate a Rule 600 motion, and this


                                               7
                                                                                       2_Opinion and Order




Court "improperly relied on extra-record evidence - specifically a co[-]defendant's Rule

600 hearing - to ignore the genuine issues of material fact," and wrongly denied him an

evidentiary hearing on the Rule 600 issue. Concise Statement at 1J 1. Our Superior

Court has explained that the right to an evidentiary hearing on a post-conviction petition

is not absolute.

       It is within the PCRA court's discretion to decline to hold a hearing if the
       petitioner's claim is patently frivolous and has no support either in the
       record or other evidence. It is the responsibility of the reviewing court
       on appeal to examine each issue raised in the PCRA petition in light of
       the record certified before it in order to determine if the PCRA court
       erred in its determination that there were no genuine issues of material
       fact in controversy and in denying relief without conducting an
       evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations omitted). See

also Commonwealth v. Shaw, 217 A.3d 265, 269 (Pa. Super.2019) (citing Wah,

supra). "The PCRA court's findings will not be disturbed unless there is no support for

the findings in the certified record." Id. (citations omitted). See also Commonwealth v.

Velazquez, 216 A.3d 1146, 1149 (Pa. Super. 2019) (citing Wah, supra).

       The certified record is comprised of "[t]he original papers and exhibits filed in the

lower court, paper copies of legal papers filed . .. by means of electronic filing, the

transcript of proceedings, if any, and a certified copy of the docket entries prepared by

the clerk of the lower court. .. ." Pa.R.A.P.1921. The appellate court can only look at

the certified record on appeal when reviewing a case. See Commonwealth v. Cosby,

- A.3d -, *25 n.11, 2019 PA Super 354 (Pa. Super. Dec. 10, 2019) ("[A]s an appellate

court, our review is limited by the contents of the certified record." (citation omitted)).




                                              8
                                                                                      2_Opinion and Order




       By Order entered on January 23, 2020, the Notes of Testimony from the Rule

600 Hearing for co-defendant Cristo-Munoz held on March 2, 2018 (No. 1591-2017),

were made part of the certified record in this case for purposes of Proper's appeal. The

testimony of Proper's trial attorney, David Blanck, contained in this transcript

establishes the patently frivolous nature of Proper's Rule 600 claim. As part of the

certified record, the Superior Court can rely upon the transcript in determining whether

the Court's decision to deny the amended PCRA petition without an evidentiary hearing

is supported by the evidence of record.

       It is well settled that a court may take judicial notice of pleadings and judgments

in other proceedings where appropriate. See In re Estate of Schultz, 392 Pa. 117,

123, 139 A.2d 560, 563 (1958); Krenzel v. Southeastern Pennsylvania

Transportation Authority, 840 A.2d 450, 454 n.6 (Pa. Cmwlth. 2003). A court may

also take judicial notice of established matters in publicly-available dockets for cases

filed in its own jurisdiction. See Deyarmin v. Consolidated Rail Corp., 931 A.2d 1, 15

n.10 (Pa. Super. 2007). This technique of judicial notice has been permitted for

evaluating "speedy trial" claims. See Commonwealth v. Jackson, 269 Pa. Super.

249, 253-54, 409 A.2d 873, 875 (1979).

       Here, the extra-record document of which this Court properly took judicial notice

was the Rule 600 Hearing transcript included in the official record for the case of

Proper's co-defendant Cristo-Munoz (No. 1591-2017), which case had been

consolidated with Proper's for purposes of discovery and trial. The testimony of

Attorney Blanck, who was subpoenaed by the Commonwealth to testify regarding his



                                             9
                                                                                           2_Opinion and Order




understanding of the allocation of time in these capital cases for purposes of Rule 600,

was under oath and subject to cross-examination, and thus constituted a ready,

accurate and reliable source of information upon which this Court properly relied in

assessing the potential of a viable Rule 600 claim by Proper. 15 This transcript has

further been certified now as part of the official record of Proper's case for appellate

review, and the Superior Court's review of the issue is not, therefore, hindered in any

way.


       B.      Ineffective Assistance of Counsel


       Here, Proper argued the ineffectiveness of trial counsel coerced him into a plea

agreement that was not knowing and voluntary. "Allegations of ineffectiveness in

connection with the entry of a guilty plea will serve as a basis for relief only if the

ineffectiveness caused [the defendant] to enter an involuntary or unknowing plea."

Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582, 587 (1999) (emphasis added).

In determining whether a defendant entered into a guilty plea knowingly, voluntarily and

intelligently, the PCRA court "is free to consider the totality of the circumstances

surrounding the plea, ... including, but not limited to, transcripts from other

proceedings, 'off-the-record' communications with counsel, and written plea

agreements." Allen, supra at 146-47, 732 A.2d at 588-89 (emphasis added).

       15
           Rule 201 of the Pennsylvania Rules of Evidence provides that "[a] court may judicially
notice a fact that is not subject to reasonable dispute because it: (1) is generally known within
the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned." Pa.R.E. 201(b)(1)-(2). Trial
attorney Blanck's testimony regarding the need for a general continuance on the defense for
purposes of his mitigation specialist completing the death-penalty investigation of Proper
amounts to the kind of objective information of which a court may take judicial notice.

                                               10
                                                                                        2_Opinion and Order




       Initially, Proper charged trial counsel with ineffectiveness for failing to file and

litigate a Rule 600 motion to dismiss the charges prior to his plea. See Amended

PCRA Petition at ,I 11 (a). By entering a guilty plea, Proper agreed to forego the right to

file any pretrial motions and defenses. See Written Guilty Plea Colloquy at 2 (wherein

Proper acknowledged that by pleading guilty, he was waiving his right to file pretrial

motions or appeal any adverse decisions on such motions); see also N.T., Guilty

Plea/Sentencing at 14 (wherein Proper acknowledged during the oral colloquy that by

pleading guilty he was waiving the right to file and litigate any pre-trial motions).

       Further, in pleading guilty, Proper effectively waived all claims except for the

validity of the plea, the jurisdiction of the court accepting his plea, and the legality of the

sentence. See Written Guilty Plea Colloquy at 5-6; see also Commonwealth v.

Eisenberg, 626 Pa. 512, 98 A.3d 1268, 1275 (2014) ("upon entry of a guilty plea, a

defendant waives all claims and defenses other than those sounding in the jurisdiction

of the court, the validity of the plea, and what has been termed the 'legality' of the

sentence imposed"); Commonwealth v. Tareila, 895 A.2d 1266, 1267 (Pa. Super.

2006) (same). This includes Rule 600 claims. See Commonwealth v. Barbaro, 94

A.3d 389, 391 n.2 (Pa. Super. 2014) (holding defendant waived claim of error pursuant

to Rule 600 by entering guilty plea).

       Thus, a defendant who pleads guilty cannot successfully raise a Rule 600

challenge unless he can show that the Rule 600 violation affected the voluntariness of

the plea itself. Gibson, supra at 1242.

       Where, however, the [petitioner] can demonstrate that he did not
       knowingly waive his right to challenge said violation, and if he can
       demonstrate that the violation of Rule 1100 [now Rule 600] induced

                                            · 11
                                                                                2_Opinion and Order




      his guilty plea, he may be entitled to pursue his claim. As such, the
      [petitioner] may allege that the waiver resulted from the ineffective
      assistance of trial counsel. In asserting a claim of ineffective
      assistance of trial counsel, a [petitioner] must demonstrate that his
      underlying claim is of arguable merit.

Id.

       In his amended PCRA petition, Proper essentially charged that his guilty plea

was coerced by the alleged deprivation of his speedy trial rights. He challenged the

voluntariness of his plea based on counsel's advice which failed to consider a Rule 600

motion. See Amended PCRA Petition at ,i 11(b)-(c). Proper claimed that had counsel

filed and litigated a Rule 600 motion, the Court "would have dismissed the charges"

against him, and no guilty plea would have been entered. Id. at ,i 12.

      Generally, Rule 600 requires the Commonwealth to bring a defendant to trial

within 365 days from the date on which the complaint is filed. Pa.R.C.P. 600(A)(2)(a).

See also Commonwealth v. Moore, 214 A.3d 244, 248 (Pa. Super. 2019).

      However, a defendant is not automatically entitled to discharge under
      Rule 600 where trial starts more than 365 days after the filing of the
      complaint. Rather, Rule 600 provides for dismissal of charges only in
      cases in which the defendant has not been brought to trial within the
      term of the adjusted run date, after subtracting all excludable and
      excusable time. The adjusted run date is calculated by adding to the
      mechanical run date, i.e., the date 365 days from the complaint, both
      excludable time and excusable delay. 'Excludable time' is classified
      as periods of delay caused by the defendant. Pa.R.Crim.P. 600(C)(2).
      'Excusable delay' occurs where the delay is caused by circumstances
      beyond the Commonwealth's control and despite its due diligence.

Id. at 248-49 (citations and internal quotation marks omitted). See Commonwealth v.

Goldman, 70 A.3d 874, 879-80 (Pa. Super. 2013).




                                           12
                                                                                   2_Opinion and Order




       On February 19,2017, Proper was charged with two counts of criminal homicide,

and related offenses. Therefore, the initial Rule 600 mechanical run date was February

19,2018.

       After the Commonwealth filed a Rule 802 Death Penalty Notice on March 22,

2017,a pre-trial conference was held in chambers on April 6, 2017. In attendance at

the conference were counsel for co-defendants Proper and Cristo-Munoz, and the

Commonwealth's prosecuting attorney. Defense counsel Blanck advised the Court and

the Commonwealth at that time that the Proper defense team would be retaining a

mitigation specialist and that they would need at least 18 months at a minimum to

complete their investigation for this capital case. See N.T., Cristo-Munoz Pretrial

Conference,March 2,2018 (No. 1591-2017) at 34-35. Counsel "certainly understood

... that [this] time would be on the defense." Id.at 36-37. It was also understood by

the Court that it would be a general continuance on the defense to allow counsel to

prepare their case and that the Commonwealth would continue to produce discovery as

it was received. No formal continuance forms were submitted to the Court at that time,

nor was any formal allocation of time put on the record. Id.at 37-38. Once the

mitigation investigation was completed,Attorney Blanck would notify the Court that they

were ready to discuss possible trial dates. Id. at 36. Just days later, on April 13,2017,

Proper's formal arraignment took place.

      On February 13,2018, approximately one year after the charges were filed, the

Commonwealth requested a pre-trial status conference to address the status of

mitigation and to assess the need to schedule a trial date. The conference took place



                                           13
                                                                                             2_Opinion and Order




in chambers on February 20, 2018, at which time, defense counsel for Proper executed

a Rule 600 waiver and continuance request to September 17, 2018.

        The unequivocal testimonial evidence by Proper's defense attorney established

that the entire delay in the prosecution of this case from April 6, 2017, through

September 17, 2018, was attributable to Proper. A general continuance was orally

requested on April 6, 2017, and granted so defense counsel could assemble a

mitigation team to investigate the case for death penalty purposes. On February 20,

2018, a written request for a defense continuance was again granted as the mitigation

investigation was still on-going. Therefore, even if counsel had filed a Rule 600 motion

to dismiss prior to the tender of the guilty plea on September 24, 2018, Proper would

not have had a viable claim. See Pa.R.Crim.P. 600(C)(3)(b); Goldman, supra. Thus,

Proper's challenge to the voluntariness of his plea based on counsel's advice which

failed to consider the Rule 600 motion was patently frivolous and had no support either

in the record or other evidence. Accordingly, no evidentiary hearing was required. 16




        16Proper filed a "certification regarding witnesses" with his amended PCRA petition in
which he identifies Attorneys Blanck and Spotts as intended witnesses at the requested
evidentiary hearing. He averred that both counsel would testify "that there was no strategic
reason for" (1) failing to file and litigate a Rule 600 motion, (20 waiving his Rule 600 rights, and
(3) advising him to plead guilty when he was entitled to dismissal pursuant to Rule 600. See
Amended PCRA Petition, Certification Regarding Witnesses at ,m 1-2. To so testify, Attorney
Blanck would have had to perjure himself. His original testimony at the March 2, 2018, hearing
was under oath, and subject to cross-examination. I found his testimony to be credible and it
convinced me beyond a reasonable doubt that counsel for Proper had requested a general
continuance in this case, with time on the defense for purposes of Rule 600, to conduct the
mitigation investigation necessitated by the death penalty notice. No further evidence was
required as Proper's "claim [wa]s patently frivolous and ha[d] no support either in the record or
other evidence." Wah, supra at 338.

                                                 14
                                                                                   2_Opinion and Order




Ill.   Conclusion


       For the reasons set forth above, it is respectfully requested that the appeal of

Joshua Michael Proper from the denial of his Amended PCRA Petition be dismissed.

       Accordingly, I enter the following:




                                             15
                                                                                   2_Opinion and Order




 IN THE COURT OF COMMON PLEAS OFLANCAS TERCOUN TY, P ENNSYLVANIA
                           C RI M I N AL


COMMONWEALTH OF PENNSYLVANIA

                   V.                                No. 1592 - 2017

     JOSHUA MICHAEL PROPER


                                      O RDE R


      AND NOW, this 27th day of January, 2020, the Court hereby submits this Opinion

pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.




                                                     L. ASHWORTH
                                                   SIDENT JUDGE




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