J-S01017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellee

                       v.

KERRY JOHN SIBBLE

                             Appellant                      No. 545 WDA 2014


                Appeal from the PCRA Order December 30, 2013
               In the Court of Common Pleas of Venango County
              Criminal Division at No(s): CP-61-CR-0000118-2012
                                          CP-61-CR-0000157-2011


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                                    FILED MAY 14, 2015

        Kerry John Sibble (“Appellant”) appeals from the order of the Venango

County Court of Common Pleas denying his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We affirm.

        On March 22, 2011, Appellant was charged at CP-61-CR-0000157-

2011 with driving under the influence/general impairment (2nd offense),1

driving    under    the     influence/highest   rate   of   alcohol   (2nd   offense),2

restrictions of alcoholic beverages,3 and careless driving.4            On March 8,
____________________________________________


1
    75 Pa.C.S. § 3802(a)(1).
2
    75 Pa.C.S. § 3802(c).
3
    75 Pa.C.S. § 3809(a).
4
    75 Pa.C.S. § 3714(a).
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2012, Appellant pled guilty to all charges.      He requested a continuance of

his sentencing hearing because he had a separate case pending and wanted

to be sentenced for both cases at the same hearing.

        The charges in the second case, CP-61-CR-0000118-2012, stemmed

from an April 1, 2011 criminal information, alleging criminal conspiracy to

manufacture a controlled substance (methamphetamine)5 and possessing

precursors with intent to manufacture.6 On April 12, 2012, Appellant pled

guilty to the conspiracy to manufacture count and the Commonwealth nolle

prossed the possessing precursors count.

        On April 12, 2012, the trial court granted Appellant’s motion to change

the sentencing date to April 27, 2012 and to impose sentences for both

convictions at the same hearing.

        On April 27, 2012, the trial court sentenced Appellant at CP-61-CR-

0000157-2011 (the March 8, 2012 conviction) to one to five years’

incarceration for DUI/highest rate and imposed $25.00 fines for the

summary offenses of restrictions of alcoholic beverages and careless driving.

The trial court did not impose a sentence for DUI/general impairment, which

it found merged with DUI/highest rate. The trial court sentenced Appellant

at CP-61-CR-0000118-2012 (the April 12, 2012 conviction) to 2 to 5 years’


____________________________________________


5
    18 Pa.C.S. § 903(a)(1); 35 P.S. § 780-113(a)(30).
6
    35 P.S. § 780-113.1(a)(3).



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incarceration for criminal conspiracy, which was to run consecutive to the

sentence imposed at CP-61-CR-0000118-2012.

        Appellant filed a motion to reconsider sentence, which the trial court

denied on May 7, 2012. Appellant did not appeal.

        On January 10, 2013, Appellant filed a timely PCRA petition.      The

PCRA court appointed counsel7 and held a hearing on November 1, 2013.

On December 30, 2013, the PCRA court denied the petition. Appellant filed

a pro se notice of appeal.8 On March 31, 2014, the court granted Appellant

in forma pauperis status.          On April 30, 2014, Appellant filed a pro se

statement of errors complained of on appeal pursuant to Pennsylvania Rule

of Appellate Procedure 1925(b). On May 13, 2014, the PCRA court issued a

1925(a) opinion adopting its December 30, 2013 opinion denying Appellant’s

PCRA petition.

        On January 30, 2015, this Court remanded the case to the trial court

to conduct a Grazier9 hearing to determine whether Appellant wanted to
____________________________________________


7
    Counsel did not file an amended PCRA petition.
8
  The court issued the order denying his PCRA petition on December 30,
2013. Appellant’s proof of service states he mailed his notice of appeal on
January 23, 2014. The clerk of court did not docket the notice until March
25, 2014. Pursuant to the prisoner mailbox rule, the notice was timely.
Commonwealth v. Hopfer, 965 A.2d 270, 272 n.2 (Pa.Super.2009)
(“Pursuant to the ‘prisoner mailbox rule,’ we deem [an appellant’s]
documents filed on the date when he placed them in the hands of prison
authorities for mailing.”).
9
    Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa.1998).



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proceed pro se on appeal. On February 13, 2015, the PCRA court conducted

the hearing and found Appellant made a knowing, intelligent, and voluntary

waiver of his right to counsel and wished to proceed pro se. The PCRA court

granted Appellant’s request to proceed pro se and granted counsel’s request

to withdraw.

      We will now review the claim raised in Appellant’s pro se appellate

brief. Appellant raises the following issue on appeal:

          Did the lower court judge erred [sic] when he denied my
          ineffective counsel claims?

Appellant’s Brief at 1.       Appellant claims a co-defendant, Stacy Dunkle,

provided a statement implicating Appellant and his counsel was ineffective

for withholding it.      Appellant’s Brief at Summary of Argument; Motion for

Post Conviction Relief, at 3.         He further claims counsel should have

withdrawn her representation of Appellant because counsel also represented

Dunkle, which created a conflict of interest. Id.

      Our standard of review from the denial of post-conviction relief “is

limited to examining whether the court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley,      21   A.3d    1238   (Pa.Super.2011)   (citing   Commonwealth   v.

Morales, 701 A.2d 516, 520 (Pa.1997)).

      For ineffective assistance of counsel claims, the petitioner must

establish:    “(1) that the underlying claim has merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) but for


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the errors or omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different.” Ousley, 21 A.3d at

1244    (quoting     Commonwealth      v.   Rivera,   10   A.3d   1276,   1279

(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove

any one of the three [ineffectiveness] prongs results in the failure of

petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).

       “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.

Hickman, 799 A.2d 136, 141 (Pa.Super.2002) (citing Commonwealth v.

Allen, 732 A.2d 582 (Pa.1999)). Whether a plea was voluntary “depends on

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

attorneys in criminal cases.” Commonwealth v. Lynch, 820 A.2d 728, 733

(Pa.Super.2003) (quoting Hickman, 799 A.2d at 141).

       Appellant alleges two bases for trial counsel ineffectiveness: (1)

counsel failed to review discovery and withheld, or did not locate, a

statement by his co-defendant implicating Appellant; and (2) counsel’s

representation of co-defendant Dunkle created a conflict of interest.      The

claims lack merit.

       The PCRA court found that (1) Appellant did not establish he suffered

prejudice as a result of the statement and (2) counsel did not coerce

Appellant into pleading guilty. Opinion, 12/31/2013, at 8. The court noted

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the charges stemmed from Appellant’s role in a conspiracy to manufacture

methamphetamine.      Opinion, 12/31/2013, at 6.     Appellant purchased six

boxes of over-the-counter Sudafed at various locations in Venango County.

Id. At the PCRA hearing, counsel testified that prior to the guilty plea she

had reviewed the voluminous discovery packet and was unable to locate a

written statement by co-defendant Dunkle that Appellant alleged existed.

Id. In preparing for the PCRA hearing, counsel found a statement made by

Dunkle. Id. at 7. She did not discover the statement earlier because the

statement was oral, not written.    Id.    The statement was contained in a

police interview.   Id.   Dunkle requested an interview with the police and

made a statement that the “true meth lab” was at Mitchell Bills’s residence

and Appellant, Bills, and Aaron Miller traveled to Ohio and Erie, PA to obtain

pills to use in the lab. Id. The trial court noted the statement was never

used against Appellant and was unrelated to the charges, which stemmed

from Appellant’s purchase of Sudafed in Venango County, not Ohio or Erie

County.   Id.   The PCRA court concluded there was no prejudice from the

statement and “the record does not reflect any hint of coercion on the part

of defense counsel towards [Appellant]. Rather, [Appellant’s] choice was the

result of reasoned reflection on his part that his interest was served by

pleading guilty.” Id. at 8. The PCRA court’s conclusion is supported by the

record and free of legal error.




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      The PCRA court also found Appellant’s claim trial counsel was

ineffective because she had a conflict of interest to be meritless. Opinion,

12/31/13, at 5-6. The Supreme Court of Pennsylvania has held:

         An appellant cannot prevail on a preserved conflict of
         interest claim absent a showing of actual prejudice.
         Nevertheless, we presume prejudice when the appellant
         shows that trial counsel was burdened by an actual—rather
         than mere potential—conflict of interest. To show an
         actual conflict of interest, the appellant must demonstrate
         that: (1) counsel actively represented conflicting interests;
         and (2) those conflicting interests adversely affected his
         lawyer’s performance.

Commonwealth       v.   Lopez,   51   A.3d   195,   200   (Pa.2012)      (quoting

Commonwealth v. Collins, 957 A.2d 237, 251 (Pa.2008)).

      The PCRA court found counsel was not ineffective because she was not

actively representing conflicting interests. The PCRA court noted Appellant

knew his counsel represented his co-defendant Dunkle prior to Appellant’s

sentencing.   The court further noted counsel’s representation of Dunkle

concluded before she began to represent Appellant on the conspiracy

charge, and Dunkle was sentenced seven months before Appellant was

sentenced.    N.T., 11/1/2013, at 23, 19; Opinion, 12/31/13, at 6.           The

PCRA’s court’s finding is supported by the record and free of legal error.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/2015




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