J-S07014-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

STEPHEN EUGENE JILES

                            Appellant              No. 1063 MDA 2016


                Appeal from the PCRA Order December 10, 2015
                 In the Court of Common Pleas of York County
                           Criminal Division at No(s):
                           CP-67-CR-0002718-2009
                           CP-67-CR-0002719-2009
                           CP-67-CR-0002745-2010
                           CP-67-CR-0003039-2009



BEFORE: BOWES, LAZARUS, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                            FILED JUNE 08, 2017

       Stephen Eugene Jiles appeals from the order denying his PCRA

petition. Appellant’s case returns to us after we remanded this matter with

directions to counsel to file a Turner/Finley1 brief addressing the issues

raised by Appellant in his original pro se PCRA petition.      Counsel has

complied with our order. Following review, we grant counsel’s application to

withdraw and affirm.

____________________________________________


1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)                       and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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      We reiterate the relevant factual and procedural history as previously

set forth by this Court:

            Following his convictions for numerous counts of robbery
      and other related offenses at the above docket numbers,
      Appellant was sentenced to an aggregate term of nine to twenty-
      one years’ imprisonment. In a consolidated appeal, this Court
      affirmed Appellant’s judgment of sentence on April 4, 2012.
      Commonwealth v. Jiles, 48 A.3d 469 (Pa.Super. 2012)
      (unpublished memorandum).

            On January 4, 2013, Appellant pro se timely filed a petition
      pursuant to the [PCRA], raising, inter alia, a claim that counsel
      was ineffective for failing to file a petition for allowance of appeal
      to the Supreme Court of Pennsylvania from this Court’s
      affirmance of his judgment of sentence.               The PCRA court
      appointed John Hamme, Esquire, as counsel. On April 24, 2013,
      following a hearing, the PCRA court granted Appellant’s petition
      with respect to that claim and reinstated Appellant’s right to file
      a petition for allowance of appeal nunc pro tunc. The PCRA court
      denied the petition in all other respects.

             On May 16, 2013, Appellant filed a counseled notice of
      appeal to this Court from the PCRA court’s April 24, 2013 order.
      On May 23, 2013, Appellant filed a counseled petition for
      allowance of appeal to our Supreme Court, which was denied on
      October 2, 2013. Commonwealth v. Jiles, 76 A.3d 539 (Pa.
      2013). On March 5, 2014, Appellant pro se filed another PCRA
      petition. Appellant also requested the appointment of counsel.
      On April 15, 2014, this Court affirmed the PCRA court’s April 24,
      2013 order. Commonwealth v. Jiles, 102 A.3d 533 (Pa.Super.
      2014). On May 1, 2014, the PCRA court appointed William Graff,
      Esquire, to represent Appellant for purposes of his March 5, 2014
      PCRA petition.

             On June 26, 2014, the PCRA court held a hearing on
      Appellant’s petition. At the hearing, Attorney Graff presented
      two issues to the PCRA court, but rather than advocate for his
      client, Attorney Graff essentially informed the PCRA court that
      the issues did not warrant relief. Following the hearing, the
      PCRA court dismissed Appellant’s PCRA petition.



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             Notwithstanding the procedural irregularities already
      outlined above, at this point, the procedural posture of this case
      begins to fall into complete disarray. A review of the record
      clearly reveals that Appellant sought to appeal the dismissal of
      his March 5, 2014 petition, but the clerk of courts and the PCRA
      court failed to handle appropriately his pro se filings evidencing
      that fact, and his appointed counsel failed to act altogether. As
      a result, Appellant was denied his right to appeal the PCRA
      court’s June 26, 2014 order dismissing his petition.

            Appellant then filed his “Motion to Re-Instate Appeal Rights
      or, in the Alternative, to Have Docketed Notice of Appeal
      Processed by the Clerk of Courts” on August 20, 2014. On
      August 28, 2014, the PCRA court denied Appellant’s motion.

Commonwealth v. Jiles, 131 A.3d 94 (Pa.Super. 2015) (unpublished

memorandum at 1-2).

      In the following appeal, Appellant argued that the PCRA court erred in

failing to re-instate his appellate rights where Appellant evinced a clear

intent to appeal the PCRA court’s decision, and appointed counsel failed to

take the appropriate steps to do so.     In addition, Appellant reiterated the

four issues he presented in his March 5, 2014 PCRA petition. We found that

Attorney Graff’s numerous errors effectively denied Appellant his right to

representation by counsel. Thus, we remanded for the appointment of new

counsel, and the filing of an amended PCRA petition or Turner/Finley no-

merit letter.   As such, we did not reach the merits of the four issues

Appellant raised in his PCRA petition.

      On remand, the PCRA court appointed George Margetas, Esquire, to

represent Appellant during his PCRA proceedings. Attorney Margetas did not



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file an amended PCRA petition. The PCRA court held a hearing on December

10, 2015, wherein counsel argued the issues raised in Appellant’s pro se

PCRA petition. The PCRA court denied relief, and Appellant indicated, on the

record, that he wanted appellate review.     Attorney Margetas did not file a

notice of appeal, nor did he seek to withdraw as counsel.       Subsequently,

Appellant again petitioned the court for reinstatement of his appellate rights.

The PCRA court appointed Heather A. Reiner, Esquire, and, after a hearing

on May 31, 2016, the court re-instated Appellant’s appeal rights.

      Appellant filed the present timely, counseled notice of appeal and

complied with the court’s order to file a Rule 1925(b) statement of errors

complained of on appeal.     On November 14, 2016, counsel filed with this

Court a Turner/Finley letter and an application to withdraw as counsel.

Thereafter, Appellant filed an application for relief requesting that the Court

permit him to file an amended Rule 1925(b) statement in order to include

the four issues he raised in his March 5, 2014 PCRA petition. We denied this

relief, but permitted Appellant an extension of time to file a response to

counsel’s no-merit letter.    Appellant did so, contending that appellate

counsel had filed a Rule 1925(b) statement without his input, and that

statement failed to include the issues for which he seeks redress on appeal.

      Subsequently, we reviewed counsel’s Turner/Finley letter and brief,

and found that she had not meet the technical requirements enunciated in

Turner/Finley in order to be permitted to withdraw. Specifically, we found

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that counsel had failed to address the issues presented by Appellant in his

original pro se PCRA petition, and discerned no justification for failing to do

so. Thus, we remanded the matter with instructions to counsel to refile her

Turner/Finley brief addressing those concerns, or in the alternative, to file

an advocate’s brief.    Counsel has presented an amended Turner/Finley

brief. This matter is now ready for our review.

      PCRA counsel’s Turner/Finley brief directs this Court’s attention to

four issues of possible merit:

   1. Whether trial counsel, Kevin Hoffman, rendered ineffective
      assistance by failing to move for dismissal of case No. CP-67-CR-
      00[2]745-2010 based on a denial of due process and
      prosecutorial misconduct?

   2. Whether trial counsel, Kevin Hoffman, rendered ineffective
      assistance for offering erroneous advice with regard to accepting
      or rejecting a plea offered by the Commonwealth that was
      significantly less onerous than the prison time imposed following
      trial?

   3. Whether Appellant was subjected to structural error when a
      Judge who decided pre-trial motions was involved in an intimate
      relationship with the assistant district attorney, who prepared
      and submitted said motions, resulting in a denial of due process?

   4. Whether trial and direct appeal counsel, Kevin Hoffman, was
      ineffective for failing to file an application for relief in appellate
      court when he discovered that the pre-trial motions Judge was
      intimately involved with the assistance district attorney who
      prepared and submitted several pre-trial motions decided by that
      Judge?

Turner/Finley brief, 1/23/17, at 6.




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      As a preliminary matter, we must address whether counsel has met

the requirements of Turner/Finley.         The Turner/Finley decisions provide

the manner for post-conviction counsel to withdraw from representation.

The holdings of those cases mandate an independent review of the record by

competent counsel before a PCRA court or appellate court can authorize an

attorney’s withdrawal.   Counsel must then file a “no-merit” letter detailing

the nature and extent of her review and list each issue the petitioner wishes

to   have   examined,        explaining    why   those   issues   are   meritless.

Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa.Super. 2014).

Counsel is required to contemporaneously serve upon her client her no-merit

letter and application to withdraw along with a statement that, if the court

granted counsel’s withdrawal, the client may proceed pro se or with a

privately retained attorney. Id. at 774. This Court must then conduct its

own independent evaluation of the record and agree with counsel that the

petition is meritless. Id.

      Here, we find that counsel has complied with the requirements of

Turner/Finley.    Counsel detailed her review of the record and concluded

that Appellant’s claims are meritless. She notified Appellant, and furnished

him with a copy of her no-merit letter, advising him of his right to proceed

pro se or to retain private counsel.        Thus, we turn to the merits of the

instant appeal.




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      We review an order denying a PCRA petition to determine whether the

PCRA court’s ruling is supported by the evidence of record and is free from

legal error. Commonwealth v. Watley, 153 A.3d 1034, 1039 (Pa.Super.

2016).   We will not disturb the PCRA court’s findings unless there is no

support for the findings in the certified record. Id. at 1039-1040.

      Three of Appellant’s issues involve allegations that trial counsel,

Attorney Hoffman, rendered ineffective assistance of counsel. To establish

ineffective assistance of counsel, a PCRA petitioner must show that the

underlying claim has arguable merit, counsel’s actions lacked any reasonable

basis, and counsel’s actions prejudiced the petitioner.     Id. at 1040.    We

commence our analysis under the presumption that counsel was effective.

Id. The failure to satisfy any prong of the test will cause the claim to fail.

Id.

      Appellant contends first that trial counsel was ineffective for failing to

move for the dismissal of the offenses charged at action number 2745-2010,

which he insists were improperly brought by the Commonwealth.               The

following procedural history is relevant to Appellant’s argument.           The

Commonwealth brought charges against Appellant for crimes he committed

on March 26, 2009. Those charges included one count of robbery graded as

a second-degree felony pursuant to 18 Pa.C.S. § 3701(a)(1)(iv), and one

count of robbery graded as a third-degree felony pursuant to 18 Pa.C.S. §




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3701(a)(1)(v).2      After a preliminary hearing, the magisterial district court

dismissed the second-degree felony robbery charge.

       Subsequently, the Commonwealth filed bills of information erroneously

charging Appellant with both original offenses. Appellant filed an omnibus

pre-trial motion which, in part, challenged the inclusion of the second-degree

robbery offense in his charging documents.       The court granted Appellant’s

motion in part, and dismissed the case in its entirety. The Commonwealth

refiled the charges, and Appellant was arraigned on April 4, 2010.            A

preliminary hearing was held on April 28, 2010, after which all charges,

including both counts of robbery, were held over for trial.        The court of

common pleas docketed the new matter at action number 2745-2010.

Following trial, Appellant was found not guilty of second-degree robbery, and

guilty on all other counts.

       Essentially, Appellant contends that his due process rights were

violated since he was not re-arrested for the revived charges at 2745-2010,

cannot remember a preliminary hearing being conducted following the

refiling of these charges, and the Commonwealth otherwise ignored the rules

of criminal procedure in bringing this case before the court.        Hence, he
____________________________________________


2
  The Crimes Code defines these offenses as robbery where, “in the course
of committing a theft, he: . . . (iv) inflicts bodily injury upon another or
threatens another with or intentionally puts him in fear of immediate bodily
injury; . . . (v) physically takes or removes property from the person of
another by force however slight[.]” 18 Pa.C.S. § 3701(a)(1)(iv) and (v).



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concludes that trial counsel was ineffective for failing to move to have the

case docketed at action number 2745-2010 dismissed as a result of the

Commonwealth’s procedural missteps.

      Instantly, the record reflects that the magisterial court held a

preliminary hearing on April 28, 2010, wherein Appellant’s charges were

held for court, including one count of robbery graded as a second-degree

felony.   Appellant’s failure to recall this hearing is no defense, nor does it

raise the specter of prosecutorial misconduct. The refiling of these charges

was authorized by the district attorney’s office, accompanied by the required

documentation, and occurred while Appellant was confined awaiting trial in

other cases. The record reveals no prosecutorial misconduct in this regard.

See Commonwealth v. Pettersen, 49 A.3d 903, 910 (Pa.Super. 2012)

(finding Commonwealth may refile charges prior to expiration of statute of

limitations if the refiling is not intended to harass defendant or would not

prejudice defendant).

      Nevertheless, assuming, arguendo, that the Commonwealth erred in

refiling the charges at action number 2745-2010, we find that Appellant is

not entitled to relief. Appellant concedes that he was acquitted of second-

degree robbery following his trial.     We have long held that in order to

establish prejudice, the petitioner “must show that there is a reasonable

probability that the outcome of the proceedings would have been different

but for counsel’s action or inaction.”      Watley, supra at 1040 (citation

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omitted).     Ultimately, the jury vindicated the first magisterial court’s

dismissal of the second-degree robbery charge by acquitting him of that

offense.    On appeal, we affirmed Appellant’s judgment of sentence in all

respects.    See Commonwealth v. Jiles, 48 A.3d 469 (Pa.Super. 2012)

(unpublished memorandum).        Thus, despite trial counsel’s alleged error,

Appellant has not established that the outcome of the proceedings would

have been different, and therefore, Appellant is not entitled to relief.

      Appellant next asserts that trial counsel was ineffective for offering

him flawed advice regarding a global plea offer of seven to fourteen years

incarceration presented by the prosecution prior to trial.             Appellant

maintains that counsel exaggerated his chances of acquittal and failed to

inform him of the maximum sentence he faced for each case. In reliance on

counsel’s advice, Appellant proceeded to trial wherein he was sentenced to a

harsher punishment than offered in the plea deal. Appellant insists that, if

counsel had presented an accurate account of the likelihood of success, then

he would have accepted the plea offer. We find this issue lacks merit.

      During a hearing held on September 13, 2011, the trial court reviewed

the contents of Appellant’s plea offer, and confirmed his desire to go to trial.

The court questioned Appellant’s motive for rejecting the plea deal as

follows:

      The Court: What do you need to think about, [Appellant]? You
      either get 7 to 14 concurrent or you go to trial and if you lose
      one of them, you’re going to get more.

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     Appellant: I understand.

     ....

     The Court: They’ve offered you concurrent time, which means
     that the sentences you’ve received on the pending cases would
     all run with sentences you’ve received. By going to trial, if found
     guilty, any sentence you would receive, they’re going to request
     that be run consecutive to the sentences you’ve already
     received.

     Appellant: Yes.

     The Court: Okay. [Appellant], you can lead a horse to water,
     but you can’t make him drink. I can’t imagine anyone under the
     circumstances that was acting rationally that would make the
     same decision that you’ve just made.

     Appellant: Well, I --

     The Court: I don’t need to know why, I’m just - - I’m a little bit
     confounded. It’s entirely up to you, but I want you to think
     about what you’re going to be dreaming about seven years from
     now when you think, you know, I may have looked tough in
     court when I rejected the offer, but, geez, I really wish I had
     taken that offer.

     Appellant: I don’t have nothing to be tough about, Your Honor,
     you know what I mean? They didn’t go through the proper
     procedures, I brought it to you -- . . . Every hearing you shot me
     down. I got the law on my side, but you – you – I come to you,
     then they have a sheriff’s warrant, you don’t suppress that. The
     warrant’s not time stamped, that didn’t happen until after they
     went into my house, but you want transcripts stating that I want
     these to be time stamped, they need a search warrant, but you
     do nothing about it[.]

     ....

     The Court: . . . So the reason why I said what I said is I don’t
     want you laying in bed, you know, seven years from now and



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      saying, you know what, I don’t know what I was trying to prove,
      but I really wish I was out right now.

      Appellant: Or in a few months or whatever I do get turned over
      and I am out by now. There’s still that chance that I took into
      consideration, you know what I mean?

N.T. Hearing, 8/13/20, at 2, 4-7, 9.

      During the PCRA hearing relevant to this appeal, Appellant’s trial

counsel, Attorney Hoffman, testifying as a witness, further explained

Appellant’s rationale for rejecting the plea offer:

      Prosecutor:     And   did   you    discuss   [the   plea]   offer   with
      [Appellant]?

      Attorney Hoffman: We did.

      Prosecutor:  And what was your position to him regarding
      whether he should take the offer or not?

      Attorney Hoffman: I just told him what the offer was. I didn’t
      tell him whether or not he should take it. I did explain to him
      that this was the offer, that we had a lot of other trials to go
      because I believe at that point we had only had one trial and
      there were a lot of outstanding suppression issues that had been
      decided against us that he didn’t want to lose on appeal if we
      pled guilty.

      Prosecutor: And did you advise him that if he didn’t take the
      offer, he could be facing additional time?

      Attorney Hoffman: Yeah. We’ve had that conversation a lot
      about the fact of the matter is a lot of charges we don’t know
      what the judge was going to do at sentencing.

      Prosecutor:    Did you recommend going to trial over taking the
      offer?

      Attorney Hoffman: No. I always left that decision in his hands.
      I did explain to him, though, that if we did enter a plea, he

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      wouldn’t be able to fight the suppression issues which he had –
      which he felt strongly about fighting in the future.

N.T. PCRA Hearing, 12/10/15, at 17-18. On cross-examination, trial counsel

reiterated that Appellant “felt very strongly” about his desire to appeal the

suppression motions, and that, as a result, Appellant “wanted to go to trial.”

Id. at 19-20.    Nonetheless, he conceded that he did not discuss the

maximum and minimum sentences Appellant faced for each charge. Id. at

20.

      Herein, the PCRA court credited Attorney Hoffman’s testimony that

Appellant’s motivation for rejecting the plea deal was fueled by his desire to

overturn certain adverse rulings.    The record supports this finding.    The

record does not support Appellant’s contention that trial counsel led

Appellant to believe he would likely receive an acquittal if he went to trial.

Indeed, Attorney Hoffman asserted, and the record reflects, that Appellant

made the decision to reject the plea offer based on his belief that his

suppression contention would be validated on appeal, and that he would be

released from prison shortly thereafter.      Appellant’s comments during the

hearing also suggest a strong desire to seek absolution upon appeal

regardless of the sentences he faced.        Appellant has not shown, and the

record does not reflect, that, but for trial counsel’s advice, Appellant would

have accepted the plea offer. Hence, this issue is without merit.




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      As Appellant’s third and fourth issues are related, we consider them

together. Appellant insists that he was subject to “structural error” because

a prosecutor who litigated some of the motions during his trial was engaged

in a romantic relationship with the presiding judge.      Turner/Finley brief,

1/23/17, at 12. In addition, he claims that trial counsel rendered ineffective

assistance for failing to file an application for relief after he learned of the

supposed affiliation. Further, Appellant counters the Commonwealth’s claim

that this matter was previously litigated by contending that our decision

related to similar claims in a prior proceeding pertained only to his case at

action   number    5684-2009,    which    is   not   implicated   here.    See

Commonwealth v. Jiles, 102 A.3d 533 (Pa.Super. 2014) (unpublished

memorandum).

      We observe that Appellant filed a pro se PCRA petition on January 4,

2013, at action numbers 2718-2009, 2719-2009, 2745-2010, 3039-2009,

and 5684-2009. In that petition, under a heading related to action number

5684-2009, Appellant raised the precise issues implicated here, that is,

structural error caused by the presiding judge’s alleged relationship with a

prosecuting attorney, and Attorney Hoffman’s ineffective assistance of

counsel arising therefrom. Id. at *2.

      As to the first issue, we found that Appellant failed to present any

evidence of a relationship between the attorney and the presiding judge or

that the alleged relationship occurred during Appellant’s criminal trial. Id. at

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*3. In regards to Appellant’s ineffectiveness claim, we found that, due to

Appellant’s lack of evidence pertaining to the improper relationship, this

claim also lacked arguable merit. Id. Thus, we found that the PCRA court

did not err in denying Appellant’s petition.             We did not, as Appellant

apparently suggests, render this opinion solely for his action arising at

number 5684-2009. Hence, Appellant’s claims were previously litigated and

cannot form the basis of PCRA relief.3             42 Pa.C.S. § 9543(a)(3) (“To be

eligible for relief under this subchapter, the petitioner must plead and prove

by a preponderance of the evidence all of the following . . . [t]hat the

allegation of error has not been previously litigated[.]”); 42 Pa.C.S. §

9544(a)(2) (“For purposes of this subchapter, an issue has been previously

litigated if . . . the highest appellate court in which the petitioner could have

had review as a matter of right has ruled on the merits of the issue[.]”).

Thus, Appellant’s claims fail.

       Our independent review of the record confirms that Appellant’s

averments in his PCRA petition cannot afford him relief. Hence, we concur
____________________________________________


3
  We note that, even if Appellant were correct in his assertion that this
matter was not previously litigated as to action numbers 2718-2009, 2719-
2009, 2745-2010, and 3039-2009, then these issues would be waived since
he could have raised them concomitantly with his challenge at action
number 5684-2009 in his first PCRA petition. Commonwealth v. Oliver,
128 A.3d 1275 (Pa.Super. 2015) (stating, “An issue is waived if [a
petitioner] could have raised it but failed to do so before trial, at trial, . . . on
appeal or in a prior state [PCRA] proceeding.”); 42 Pa.C.S. § 9543(a)(3).
Thus, he would still not be entitled to relief.



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with counsel’s assessment that there is no merit to his request for PCRA

relief.     Hence, we discern no error in the PCRA court’s decision to deny

Appellant’s PCRA petition.

          Petition of Heather A. Reiner, Esquire, to withdraw granted.   Order

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2017




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