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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
CHRISTOPHER PETER FICK,                     :
                                            :
                          Appellant         :     No. 2975 EDA 2013


               Appeal from the PCRA Order September 26, 2013
                In the Court of Common Pleas of Chester County
               Criminal Division No(s).: CP-15-CR-0001052-1999

BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 06, 2014

        Appellant, Christopher Peter Fick, appeals pro se from the order

entered in the Chester County Court of Common Pleas dismissing without a

hearing his petition filed pursuant to the Post Conviction Relief Act1



second revocation of a probationary term. In this appeal, Appellant raises

several claims of ineffective assistance of trial counsel, as well as the denial

of his rights to written notice of the charges and a speedy probation

revocation hearing. We affirm.



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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      The underlying facts of this case are not necessary to our disposition.

On April 17, 2000, Appellant pleaded nolo contendere to burglary and

received a sentence of twelve to twenty-

                                                     of 2005, the trial court

revoked and reinstated his probation for the first time, for failing to pay

restitution.

           A bench warrant was issued on July 13, 2006 in regard to
           four new burglary convictions in the state of New
           Jersey[; ] however, [Appellant] was serving a New Jersey
           sentence at that time.       A detainer was issued on
           [Appellant.     N]onetheless, due to an unknown
           administrative mistake, [Appellant] was released from
           custody in New Jersey on August 25, 2009. [Once the
           Commonwealth learned of this, o]n April 28, 2010, a bench
           warrant was reactivated and executed on June 21, 2011.

Commonwealth v. Fick, 2701 EDA 2011 (unpublished memorandum at 2)

(Pa. Super. filed Jul. 24, 2012) (direct appeal) (quoting Trial Ct. Op.,

1/17/12, at 1-2); see also N.T. 9/6/11, at 3.

      On September 6, 2011, the trial court conducted a Gagnon II

hearing2

New Jersey burglary convictions and failing to pay outstanding monies. The

court imposed the underlying sentence


2
    Gagnon I hearing is a pre-revocation hearing to determine if probable
cause exists that a violation was committed. After this determination is
made, a Gagnon II hearing is conducted where the Commonwealth is

Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa. Super. 2011)
(citation omitted).



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with credit for time served.

        Appellant took a timely appeal with this Court.     In an unpublished

memorandum, this Court denied relief and affirmed the judgment of

sentence on July 24, 2012.

        On June 11, 2013, Appellant filed the underlying, timely pro se PCRA

petition,3 averring the following: (1) trial counsel failed to state at the

Gagnon II




Appellant met trial counsel for the first time ten minutes before the hearing

and trial counsel had no grasp of the complexities of the case; (4) in trial

           Anders4 brief to the Superior Court on direct appeal, trial counsel




aware; (5) the New Jersey Department of Corrections notified the District




3

was the thirty-day deadline for filing a petition for allowance of appeal to the
Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P.
1113(a). Appellant then had until August 23, 2013 to file a PCRA petition
under the general one-year filing period. See 42 Pa.C.S. § 9545(b)(1). As
stated above, the instant petition was timely filed on June 11, 2013.
4
    Anders v. California, 386 U.S. 738 (1967).



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Relief, 6/11/13, at 3, 6. We note that trial counsel, P.J. Redmond, Esq., also

represented Appellant in the direct appeal, but was granted leave to

withdraw pursuant to Anders.

      The PCRA court appointed counsel to represent Appellant.        Counsel

then filed a petition for leave to withdraw pursuant to Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On August 23, 2013,

the court issued notice of intent to dismiss the PCRA petition pursuant to

Pa.R.Crim.P. 907(1). Appellant filed a pro se response, repeating the claims

in his PCRA petition.    On September 26, 2013, the court entered the




statement of errors complained of on appeal.




                                                Commonwealth v. Henkel,

90 A.3d 16, 20 (Pa. Super. 2014) (en banc

and prove ineffective assistance of counsel a petitioner must establish: (1)



objective reasonable basis; and (3) actu



                     Id. at 30 (citations omitted).



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because he met Appellant for the first time ten minutes before the Gagnon

II

was no possible way that an effective defense can be established in 10



     In response to this claim, the PCRA court opined that Appellant


        changed the outcome of this Gagnon II hearing. The
        record clearly shows [Appellant] was convicted of four new
        burglaries in the state of New Jersey in 2005 and 2006 . . .
        while [he] was on probation in Pennsylvania. The four new
        burglary convictions provide dispositive evidence that the
        outcome of the [revocation hearing] would have remained
        the same.

Notice of Intent to Dismiss PCRA Petition, 8/

We agree.      Appellant does not dispute that acquiring new criminal

convictions was grounds for revocation of his probation, nor does he explain

how a purported better-prepared attorney would have overcome a petition

to revoke probation. See

order of probation upon proof of the violation of specified conditions of the



not proven prejudice. See Henkel, 90 A.3d at 30; 907 Notice at 4 n.1.

     Appellant next avers trial counsel was ineffective because he should

have been in possession of Chester County docket entries which clearly state

that the Commonwealth rescinded and closed this probation case and

warrant in 2006 and 2007. Appellant contends that counsel either hid these


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                                                                         -10.



prison in New Jersey due to an unknown administrative mistake. Instead,




Id. at 14.

      In support, Appellant attaches copies of the trial docket, with emphasis

on these docket entries:

         02/14/2006     Do Not Pursue Delinquency
         05/17/2006     Pursue Delinquency
         07/13/2006     Bench Warrant (Rescinded-Closed)
                        Violation of Probation
         01/29/2007     Do Not Pursue Delinquency
         12/11/2007     Pursue Delinquency




and cites two entries dated May 8, 2009:


         Spoke with Brian, needs to pull file to find out of [sic] VOP
         warrant is still active.

                                  *    *    *




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          Warrant 15-BW-0001515-2008, issued out of Chester Co.



                       -5.



this violation of probation case and declined to take custody when notified



argument that the Commonwealth had the authority to terminate any

revocation proceedings       is mistaken.    Instead, Section 9771(a) of the

                                  The court may at any time terminate

continued supervision or lessen or increase the conditions upon which an

order of probation has been



                                                                                was

executed in New Jersey two days later on July 13th, 2006. [Appellant] was




of him.

      Additionally, Appellant fails to persuade this Court that notes or logs in

a   purported   copy   of    a   New   Jersey   prison   report   establishes   the

Commonwealth declined to take custody of him.             Additionally, as stated

above, whether the Commonwealth took custody of Appellant is not

                                                                          See 42



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Pa.C.S. § 9

ineffectiveness claims fail. See Henkel, 90 A.3d at 30.



                                                                     s closed




Brief at 19.   These allegations are distinct from the claims of ineffective

assistance of counsel above. Additionally, Appellant cites the constitutional

right of a defendant to have compulsory process for obtaining witnesses in



situation in this present case, with the Commonwealth not disclosing



are waived because they could have been raised on direct appeal. See 42

Pa.C.S. § 9544(b).



court dismissing his PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2014




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