J-S42030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DANIEL SETH LEPPIEN                      :
                                          :
                    Appellant             :   No. 1568 MDA 2017

                 Appeal from the PCRA Order April 18, 2017
   In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0000409-2012


BEFORE:    BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                  FILED SEPTEMBER 24, 2018

      Daniel Seth Leppien appeals from the ordering denying his petition filed

under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Leppien

alleges his appellate counsel was ineffective for failing to challenge on appeal

the denial of a pre-trial motion for a continuance and the discretionary aspects

of his sentence. We affirm.

      Leppien was charged with committing numerous sexual offenses against

five female victims, who were 15 or 16 years of age. The charges were lodged

at four separate docket numbers.

      On October 22, 2012, Leppien filed a motion for a continuance of the

trial, alleging that two defense witnesses, Leppien’s mother and aunt, were

unavailable on the scheduled trial date because they were caring for their sick

mother. On October 26, 2012, after considering “[Leppien’s] motion to


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* Retired Senior Judge assigned to the Superior Court.
J-S42030-18



continue trial, counsel’s subsequent correspondence and a conference with

both counsel,” the trial court denied the motion. Order, filed Oct. 26, 2012.

Leppien’s mother testified at trial; his aunt did not.

       On November 12, 2012, a jury found Leppien guilty of: one count of

rape by forcible compulsion, one count of involuntary deviate sexual

intercourse with a person less than 16 years of age, one count of involuntary

deviate sexual intercourse by forcible compulsion, two counts of sexual

assault, three counts of statutory sexual assault, four counts of unlawful

contact with minors, four counts of corruption of minors, one count of criminal

attempt to commit aggravated indecent assault of a person less than 16 years

of age, one count of indecent assault, and one count of furnishing alcohol to

a minor.1 Trial Court Order and Opinion, filed April 18, 2017, at 1-2 (“TCO”).

On March 8, 2013, the trial court sentenced Leppien to 28 to 65 years’

incarceration. Id. at 2. On April 11, 2014, this Court affirmed.

       On May 8, 2015, Leppien filed a timely PCRA petition seeking, in part,

reinstatement of his right to file a petition for allowance of appeal with the

Pennsylvania Supreme Court nunc pro tunc. The PCRA court granted the

petition, and Leppien filed a Petition for Allowance of Appeal. On December

21, 2016, the Supreme Court denied Leppien’s Petition.




____________________________________________


118 Pa. C.S.A. §§ 3121(a)(1), 3123(a)(7), 3123(a)(1), 3124.1, 3122.1, 6318,
6301, 901, 3126, and 6310.1, respectively.


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       On January 5, 2017, Leppien filed a timely, counseled PCRA petition

alleging, among other things, that his appellate counsel was ineffective for

failing to challenge the denial of the motion for a continuance and for failing

to challenge the discretionary aspects of his sentence.

       The PCRA court held a hearing.2 Appellate counsel testified that “if the

issue was that a continuance was not granted when witnesses were

unavailable and the Commonwealth did not provide any evidence of prejudice,

then I can’t think of any reason why I didn’t raise it on direct appeal.” N.T.,

11/13/15, at 10. Further, he stated that he raised a challenge to the

discretionary aspects of Leppien’s sentence in his concise statement of issues

on appeal, but did not include it in his appellate brief because he “believe[d]

Judge Cullen wrote a fairly substantial statement of justification that would

have led me to abandon that” on direct appeal. Id. at 13.

       Leppien’s aunt, Karen Hoffman, testified regarding the continuance

request. Ms. Hoffman stated that she met one of the victims, A.M., in 2011.

Id. at 46. A.M. told Ms. Hoffman that she was 20 years old and then, shortly

after, said she was 17. Id. at 46, 50. Ms. Hoffman stated that the victim also

claimed her sister was 20, until Leppien’s mother said that the victim and her

sister were twins. Id. at 50. Ms. Hoffman stated she was unable to testify at

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2The hearing was held after Leppien filed the May 8, 2015, PCRA petition, and
before the re-instatement of Leppien’s right to file a petition for allowance of
appeal. The hearing, however, addressed the counsel ineffectiveness claims
at issue in this appeal, which were raised in both his May 8, 2015 and his
January 5, 2017 PCRA petitions.

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trial because she was caring for her mother, who had had a stroke. Id. at 50-

51.

        On cross-examination, Ms. Hoffman stated that Leppien’s mother was

present during the conversation with the victim. Id. at 53. She stated that

she and Leppien’s mother stayed with their mother and only occasionally

would leave to get something, that hospice caretakers came two times a week,

and that she could not make arrangements for someone else to care for her

mother. Id. at 60, 62. She stated they could not have made an arrangement

where Leppien’s mother went to the courtroom and, when she returned, Ms.

Hoffman went to the courtroom. Id. at 64. Ms. Hoffman stated that she had

her own “medical problems, and [she] wouldn’t be able to sit in the

courtroom.” Id. She did not know whether she would be able to sit in the

courtroom for 15-20 minutes. Id.

        The PCRA court denied the petition. Leppien received permission to file

an appeal of the denial nunc pro tunc, and then filed a timely notice of appeal

at only one of the four docket numbers at which he was charged, docket CP-

36-CR-0000409-2012 (“Docket 409”). He did not file a notice of appeal at CP-

36-CR-0000408-2012,       CP-36-CR-0000416-2012,          or   CP-36-CR-0005623-

2011.

        On appeal, Leppien raises the following issues:

          1. Did the PCRA court err when it denied [Leppien’s] claim
          that his appellate counsel was ineffective for failing to raise
          on direct appeal the trial court’s denial of a defense
          continuance request because said denial resulted in the


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          unavailability of a necessary and indispensable defense
          witness?

          2. Did the PCRA court err when it denied [Leppien’s] claim
          that his appellate counsel was ineffective for failing to
          challenge the discretionary aspects of sentencing because
          the sentence imposed, while within the guideline range,
          involved circumstances where the application of the
          guidelines was pat[]ently unreasonable[?]

Leppien’s Br. at 4 (unnecessary capitalization omitted).

       We must first address whether we have jurisdiction over Leppien’s

claims. Although Leppien filed his PCRA petition and his concise statement of

matters complained of on appeal at all four dockets, he filed a notice of appeal

at only Docket 409, and the only trial court docket listed on that notice of

appeal is Docket 409. We, therefore, have jurisdiction to review the case only

as it relates to Docket 409. Commonwealth v. Hardy, 99 A.3d 577, 579

(Pa.Super. 2014).3 However, Leppien’s issues on appeal do not relate to the

conviction or sentence at Docket 409. Ms. Hoffman’s testimony addressed the

credibility of A.M., and Docket 409 did not charge Leppien with crimes against

A.M. Rather, Docket 409 charged him with committing crimes against a

different victim, K.B. Further, Leppien’s claim that counsel was ineffective for

failing to challenge the discretionary aspects of sentence focuses on the total
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3  In Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018), the
Pennsylvania Supreme Court determined that where a party fails to file
separate appeals from an order that resolves issues arising on more than one
docket, the appellate court must quash the appeal. It found, however, that
the bright-line rule would apply only to cases appealed following the court’s
decision, which was issued on June 1, 2018. Id. In Walker, the appellant had
filed a single notice of appeal that listed multiple docket numbers. Id. at 972.
Here, although Leppien filed his notice of appeal before June 1, 2018, he filed
a single notice of appeal and listed only one docket number.

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aggregate sentence, with no mention of the sentences imposed at Docket 409.

Leppien’s Br. at 18. Accordingly, because Leppien filed a notice of appeal only

at Docket 409, and because the claims he raises in this appeal do not address

the conviction or sentence at Docket 409, we lack jurisdiction to consider the

issues raised in this appeal.

      Although we have jurisdiction over the order entered on Docket 409,

Leppien has failed to preserve any issue for our review. We, therefore, affirm

the order denying the PCRA petition. In re K.L.S., 934 A.2d 1244, 1246 n.3

(Pa. 2007) (noting a court should quash an appeal “where the court lacks

jurisdiction over the appeal in the first instance,” but should affirm the appeal

if the appellant failed to preserve, and therefore waived, issues on appeal).

      Further, even if we were to review the claims, we would still affirm.

      When reviewing the dismissal of a PCRA petition, we examine the PCRA

court’s “findings of fact to determine whether they are supported by the

record, and . . . its conclusions of law to determine whether they are free from

legal error.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)).

      To prevail on an ineffectiveness claim, a petitioner must establish: “(1)

his underlying claim is of arguable merit; (2) counsel had no reasonable basis

for his action or inaction; and (3) the petitioner suffered actual prejudice as a

result.” Id. (citing Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010)).

“Counsel is presumed effective” and the petitioner bears the burden of

demonstrating ineffectiveness. Id. To establish prejudice, the petitioner must

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prove “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (quoting

Strickland v. Washington, 466 U.S. 668, 694 (1984)).

      Leppien maintains his appellate counsel was ineffective for failing to

raise on appeal a challenge to the trial court’s denial of the motion for a

continuance. We disagree.

      “The grant or denial of a motion for a continuance is within the sound

discretion of the trial court and will be reversed only upon a showing of an

abuse of discretion.” Commonwealth v. Brooks, 104 A.3d 466, 469 (Pa.

2014) (quoting Commonwealth v. Randolph, 783 A.2d 1277, 1281 (Pa.

2005)). “[D]iscretion is abused when ‘the law is overridden or misapplied, or

the judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill-will, as shown by the evidence or the record.’” Id.

(quoting Randolph, 783 A.2d at 1281). Further, “[t]rial judges necessarily

require a great deal of latitude in scheduling trials. Not the least of their

problems is that of assembling the witnesses, lawyers, and jurors at the same

place at the same time, and this burden counsels against continuances except

for compelling reasons.” Commonwealth v. Sandusky, 77 A.3d 663, 671

(Pa.Super. 2013) (quoting Morris v. Slappy, 461 U.S. 1, 11 (1983)).

      Here, the PCRA court found the underlying claim lacked merit,

reasoning:




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          In this case, the Court attempted to work out an
          accommodation whereby [Leppien’s] mother and aunt could
          testify while simultaneously considering the needs of
          [Leppien’s] multiple victims, the public, counsels’
          availability and the scheduling issues that a continuance
          would entail.13 Such considerations were exacerbated by the
          fact that, while [Leppien] sought a two month continuance,
          there is nothing in the record to indicate that [Leppien’s]
          grandmother’s condition would have changed during that
          time so as to allow [Leppien’s] aunt to testify.
              13 At the time of [Leppien’s] request for a continuance,
              it was just over a year since the first criminal
              complaint had been filed against [Leppien] and nearly
              nine months since the first information had been filed.
              [Leppien] had already requested two continuances.
              Status orders granting those continuances were filed
              on March 20, 2012, and April 17, 2012. A third status
              order, filed on August 28, 2012, indicates a third
              continuance was granted but does not indicate to
              whom it was charged. Moreover, the Commonwealth
              had issued subpoenas for 15 witnesses, including six
              young women between 16 and 18 years of age, two
              police officers and officials of the high school the
              victims attended.

TCO at 9.4

       The PCRA court further found that, even if the underlying claim had

merit, Leppien’s ineffectiveness claim still would fail because he cannot

establish prejudice. The court reasoned Ms. Hoffman’s testimony would have

been used to impeach one victim. The trial court further noted that Leppien’s

____________________________________________


4 The PCRA court further noted that, at the PCRA hearing, Leppien’s “aunt’s
testimony indicates that she was as much resistant to testifying as she was
unavailable. She testified that, even if it could have been arranged for her to
come to court, her own unspecified health problems would have prevented
her from sitting in court and testifying. She made this claim notwithstanding
the fact that she was sitting in court and testifying at the PCRA hearing.” TCO
at 9-10.

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mother testified at trial, and was present when Ms. Hoffman met the victim.

Therefore, Ms. Hoffman’s testimony would have been cumulative. The PCRA

court concluded that Leppien “has failed to demonstrate that there was a

reasonable probability that the outcome of the case would have been different

had the continuance request been granted such that he was prejudiced by the

denial of his request.” TCO at 10.

      The PCRA court did not err in finding the ineffectiveness claim lacked

merit because the underlying issue was meritless and the denial of the motion

for a continuance did not prejudice Leppien. The trial court considered the

motion and the Commonwealth’s response, and met with counsel. Its decision

to deny the continuance request was not an abuse of discretion. Further, as

the PCRA court noted, Leppien’s mother was present when Ms. Hoffman met

A.M., and Leppien’s mother testified at trial. Therefore, because Leppien’s

mother could have testified regarding the conversation, Leppien cannot

establish prejudice.

      Leppien next alleges that his appellate counsel was ineffective for failing

to challenge the discretionary aspects of his sentence.

      “Sentencing is a matter vested in the sound discretion of the sentencing

judge, and a sentence will not be disturbed on appeal absent a manifest abuse

of discretion.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.Super.

2013) (quoting Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super.

2012)).




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      The PCRA court found this claim lacked merit. It reasoned that when

sentencing Leppien, the trial court complied with “the applicable requirements

in imposing sentence.” TCO, at 13. The trial court reviewed the presentence

investigation report, the sentencing code provisions, and the sentencing

guidelines. Id. (citing N.T., 3/18/13, at 6-9, 16-17). The court considered

Leppien’s background, mental health history, and suicide attempts. Id. (citing

N.T., 3/18/13, at 14-16). It also “considered the circumstances of the

offenses,   the   authorized   penalties,     [Leppien’s]   rehabilitative   needs,

statements of [Leppien’s] attorney, letters submitted on [Leppien’s] behalf

and the statements of the assistant district attorney.” Id. The court further

noted that the reasons for imposing an aggravated-range sentence were on

the record, and it “considered all relevant information and imposed a sentence

that addressed the need to protect the public from such crimes, the gravity of

the offenses as they related to the community and [Leppien’s] rehabilitative

needs.” Id. The court also took into account “all aggravating factors, including

the number and ages of the victims, that the offenses were repeated over an

extended period of time, that [Leppien] used his business as a lure for young

people and that he provided his victims with alcohol and marijuana.” Id.

(citing N.T., 3/18/13, at 17-18).

      At the sentencing hearing, after considering all factors mentioned

above, the court concluded:

         Essentially, you are an extremely dangerous individual. You
         presented yourself as someone who is totally innocuous in
         dealing with these young women. How it was that they

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        found themselves attracted to you and to this location, we
        will probably never know . . . .

        All these young women were under age. You knew that
        when you became involved with them. It is likely that you
        probably anticipated their reluctance to come forward and
        testify against you or to provide information against you for
        exactly the reasons I described. They got absolutely nothing
        out of this. You are the only one who got anything out of it
        for a brief period of time in that you got whatever
        satisfaction you wanted, you got whatever sense of power
        or control that you wanted, and you had that for an
        extremely short period of time.

        It is appropriate that you be under supervision probably for
        the balance of your life because it is clear that, given your
        age, you are not likely to be deterred from this type of
        conduct in the future unless you are supervised for the
        balance of your life.

N.T., 3/18/13, at 18-20.

     The PCRA court did not err in concluding that Leppien’s claim that

appellate counsel was ineffective for failing to raise a challenge to the

discretionary aspects of sentence lacked merit because the underlying claim

was meritless. The court considered all relevant information, made findings

on the record, and its sentence was not excessive.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2018


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