J-S26013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEPHEN HARLEY ZUBER                       :
                                               :
                       Appellant               :   No. 1483 EDA 2018

                   Appeal from the PCRA Order April 17, 2018
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0004397-2012


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.:                       FILED SEPTEMBER 05, 2019

        Stephen Harley Zuber appeals, pro se, from the order denying his

petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§

9541-9546. We affirm.

        On September 19, 2013, Appellant was convicted of attempted criminal

homicide and related offenses after shooting his girlfriend and holding their

child hostage.       On November 1, 2013, he was sentenced to not less than

twenty nor more than forty years of incarceration. Appellant filed a timely

post-sentence motion, which the trial court denied on March 12, 2014.

Appellant did not file a direct appeal.

        Appellant subsequently filed his first PCRA petition.   The PCRA court

found that counsel had abandoned Appellant by not filing an appeal, granted

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*   Retired Senior Judge assigned to the Superior Court.
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the petition, and reinstated his direct appeal right. Appellant filed a timely

direct appeal of his sentence.

       In response to the trial court’s concise statement order, counsel filed a

statement of intent to file an Anders brief.        See Pa.R.A.P. 1925(c)(4).

Counsel filed his Anders brief on December 7, 2015, together with a letter

stating that Appellant had the right to proceed pro se or with privately retained

counsel if counsel were permitted to withdraw.

       This Court issued a per curiam order instructing counsel that he had

improperly characterized Appellant’s right to proceed pro se. Counsel then

sent a second letter on explaining his error and notifying Appellant that he

had the current right to pursue the appeal pro se. See Commonwealth v.

Zuber, 2973 EDA 2015, 6-7, n.10 (Pa. Super. filed July 15, 2016)

(unpublished memorandum). Appellant filed no further submissions. On July

15, 2016, this Court affirmed Appellant’s judgment of sentence. See id.

       On July 11, 2017, Appellant filed a pro se PCRA petition.1 The PCRA

court appointed counsel, who filed a Turner/Finley “no merit” letter and a

petition for permission to withdraw from representation.2 On February 12,



____________________________________________


1Appellant filed a pro se motion to correct illegal sentence on July 11, 2017,
which the PCRA court treated as a PCRA petition, followed by a pro se PCRA
petition on July 12, 2017.

2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).



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2018, the court conducted a hearing on counsel’s petition, and granted him

permission to withdraw from representation.3

       During the hearing, the PCRA court notified Appellant that it was going

to send notice of its intent to dismiss his petition, after which Appellant would

have twenty days to respond. The court denied Appellant’s request for more

time, noting that the rule only requires twenty days from the date of receipt

and explaining that it would be some time before Appellant received the

notice. See N.T. Hearing, 2/12/18, at 7-8.

       Two weeks after the hearing, on March 1, 2018, the PCRA court issued

notice of its intent to dismiss Appellant’s petition. See Pa.R.Crim.P. 907(1).

Appellant filed a petition for new sentencing on March 6, 2018, which listed

several ineffective assistance of counsel claims. On March 29, 2018, the PCRA

court treated the petition for new sentencing as a PCRA petition, and dismissed




____________________________________________


3 Counsel filed his motion to withdraw on February 6, 2018, and met with
Appellant on February 10, 2018. During the February 12, 2018 hearing,
counsel testified that as a result of meeting with Appellant, he did not want to
change his motion to withdraw. See N.T. Hearing, 2/12/18, at 2. The court
had previously continued the PCRA hearing on two occasions to permit counsel
the opportunity to meet with Appellant in person.




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it because the first petition was pending.4         On April 17, 2018, the court

dismissed Appellant’s PCRA petition.5 This timely appeal followed.

       Appellant    filed   his   court-ordered   concise   statement   of   matters

complained of on appeal. The PCRA court filed its opinion on July 9, 2018.

See Pa.R.A.P. 1925.

       Appellant raises four issues on appeal.

       A. Whether the PCRA Court erred as a matter of law and/or abuse
          of discretion when denying Appellant’s reasonable request for
          an extension of time to adequately prepare his pro se response
          to appointed-counsel’s Finley/Turner “no-merit” [l]etter upon
          only learning during evidentiary hearing held on February 12,
          2018, that his court-appointed counsel was being granted his
          withdrawal without any prior advance notice?

       B. Whether the PCRA Court erred as a matter of law and/or abuse
          of discretion when granting Robert Sletvold, Esquire, his
          motion to withdraw as court-appointed PCRA counsel during
          the February 12, 2018 evidentiary hearing, without first
          inquiring if counsel had actually at least met with his client to
          discuss issues prior to submitting his Finley/Turner “no-
          merit” [l]etter, as previously directed to do so by the [PCRA
          c]ourt on January 2, 2018?

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4 In its order, the court noted that if this petition were Appellant’s attempt to
respond to the notice of intent to dismiss, the petition raised new non-PCRA
counsel ineffectiveness claims. The court explained that such claims could not
be raised in a response, but must be raised in an amended PCRA petition.
Appellant did not request permission to file an amended petition.

5 Appellant claims to have mailed a letter to the PCRA judge requesting an
extension to amend his petition. See Appellant’s Brief, at 41. However no
such letter appears in the certified record. “The responsibility rests upon the
appellant to ensure that the record certified on appeal is complete in the sense
that it contains all of the materials necessary for the reviewing court to
perform its duty.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super.
2006) (citation omitted).

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      C. Whether the PCRA Court erred as a matter of law and/or abuse
         of discretion when denying a reasonable request for thirty (30)
         day enlargement of time to submit an amended PCRA Petition
         once learning that Appellant had never timely received the
         Court’s 907 Notice of Its Intent to Dismiss that was issued
         March 1, 2018, postmarked March 7, 2018, but not physically
         received until March 16, 2018?

      D. Whether the PCRA Court erred as a matter of law and/or abuse
         of discretion when adopting court-appointed PCRA counsel’s
         Finley/Turner “no-merit” [l]etter that even suggests that
         Appellant’s prior counsel Matthew J. Rapa, Esquire, whose
         improperly framed language had improperly obstructed
         Appellant’s ability to timely submit any response to the
         Anders’ Brief was without merit?

Appellant’s Brief, at 5.

      To the extent review of the PCRA court’s determinations is
      implicated, an appellate court reviews the PCRA court’s findings of
      fact to determine whether they are supported by the record, and
      reviews its conclusions of law to determine whether they are free
      from legal error. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation

marks and citations omitted).

      Preliminarily, with respect to Appellant’s first two issues, we note that

Appellant stated that he did not object to the PCRA court granting counsel’s

petition to withdraw from representation. See N.T. Hearing, at 6-7.         As a

result, Appellant cannot raise these issues on appeal. See Pa.R.A.P. 302(a).

Appellant’s first two issues are waived.

      In his third issue, Appellant claims that the PCRA court abused its

discretion when it denied his request for an extension of time to respond to




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the court’s notice of intent to dismiss. See Appellant’s Brief, at 37-43. We

disagree.

      Pennsylvania Rule of Criminal Procedure 907(1) grants a petitioner

twenty days to respond to the court’s notice of intent to dismiss.         See

Pa.R.Crim.P. 907(1). “The decision to grant a continuance is within the sound

discretion of the [PCRA] court, and we will reverse only if the court has abused

its discretion.”   Commonwealth v. Paddy, 15 A.3d 431, 470 (Pa. 2011)

(citations omitted).

       Here, the record reflects that, after Appellant explained that he needed

more time because of transfers between corrections institutions and limited

access to the law library, the PCRA court waited sixteen days before it issued

its notice of intent to dismiss. See N.T. Hearing, at 7-8. Therefore, the PCRA

court afforded Appellant nearly forty days (from the February 12, 2018

hearing during which the court notified Appellant it would issue the 907(1)

notice, until March 21, 2018, twenty days after the date of the notice) to file

its response to the proposed dismissal.

      Upon review, we conclude that the PCRA court did not abuse its

discretion by denying Appellant’s request for an extension of time to file his

response to the notice. See Paddy, 15 A.3d at 470. Appellant’s third issue

does not merit relief. See Spotz, 84 A.3d at 311.

      In his final issue, Appellant asserts a layered ineffectiveness claim. He

argues that PCRA counsel rendered ineffective assistance by failing to advance




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Appellant’s claim that direct appeal counsel was ineffective. See Appellant’s

Brief, at 46-49.

      “Counsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on the appellant.” Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa. Super. 2010) (citation omitted).

      To plead and prove ineffective assistance of counsel a petitioner
      must establish: (1) that the underlying issue has arguable merit;
      (2) counsel’s actions lacked an objective reasonable basis; and
      (3) actual prejudice resulted from counsel’s act or failure to act.
      Where the defendant asserts a layered ineffectiveness claim he
      must properly argue each prong of the three-prong ineffectiveness
      test for each separate attorney.

Commonwealth v. Rykard, 55 A.3d 1177, 1189–90 (Pa. Super. 2012),

(citations omitted). A failure to plead or prove any prong will defeat an

ineffectiveness claim. See Commonwealth v. Grove, 170 A.3d 1127, 1138

(Pa. Super. 2017).

      Appellant contends that PCRA counsel knew direct appeal counsel failed

to correctly explain Appellant’s right to respond pro se to the Anders brief,

there was no reasonable basis for counsel’s decision not to raise an

ineffectiveness claim based on such error, and Appellant was prejudiced

because he was deprived of his right to collateral review. See id. at 49. We

disagree because we find Appellant cannot establish prejudice.

      “A petitioner establishes prejudice when he demonstrates that there is

a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”      Commonwealth v.



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Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations and internal quotation

marks omitted).

       Here, to establish prejudice, Appellant must prove that direct appeal

counsel’s failure to explain that Appellant’s right to proceed pro se was

effective immediately caused actual prejudice; i.e., but for counsel’s deficient

failure to tell Appellant that the right to proceed pro se would attach

immediately, Appellant would have immediately filed a response to the

Anders brief.

       Upon review, we conclude that Appellant has failed to meet his burden

to prove actual prejudice. Appellant had myriad opportunities to respond pro

se to counsel’s Anders brief during the six month period between when

counsel sent the corrected notification of Appellant’s right to proceed pro se

(January 25, 2016) and when the judgment of sentence was affirmed (July

15, 2016), and yet never once did he file a response, or request an extension

of time to do so. Based on his later inaction, it appears unlikely that Appellant

would have sent a pro se response immediately upon receiving the Anders

brief if he had been informed that he had the right to do so. Appellant has

not established actual prejudice because of direct appeal counsel’s failure to

act.   Therefore, he cannot meet his burden of proving that direct appeal

counsel   was   ineffective   and   his   layered   ineffectiveness   claim   fails.

Appellant’s fourth issue is meritless.

       Appellant’s issues are all either waived or meritless. Accordingly, we

affirm the PCRA court’s order dismissing Appellant’s PCRA petition.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/19




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