Com. v. Kilgus, D. (memorandum)

Annotate this Case

Download PDF

J-S22040-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DAVID LEE KILGUS, Appellant No. 1632 MDA 2012 Appeal from the Order August 22, 2012 In the Court of Common Pleas of Lycoming County Criminal Division at Nos.: CP-41-CR-0001213-2009 CP-41-CR-0001713-2009 BEFORE: DONOHUE, J., ALLEN, J., and PLATT, J.* MEMORANDUM BY PLATT, J. FILED MAY 07, 2013 Appellant, David Lee Kilgus, appeals from the order dismissing his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9451-9456, without a hearing. We affirm. On July 12, 2010, Appellant pleaded guilty to statutory sexual assault and related offenses. On December 22, 2010, the court sentenced Appellant to an aggregate term of not less than ten nor more than twenty years incarceration with a consecutive ten years of probation and ordered lifetime Megan s Law registration. Appellant did not file a post-sentence motion or a direct appeal. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S22040-13 On July 16, 2011, Appellant filed a pro se motion for writ of habeas corpus that the court treated as a first PCRA petition. The court appointed counsel who filed a second amended petition on May 29, 2012. On July 3, 2012, the court issued a notice of its intention to dismiss Appellant s petition without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907 along with a thorough and well-reasoned opinion in support thereof. Appellant filed timely objections to the Rule 907 notice and, on August 22, 2012, the court entered an opinion that addressed the issues raised by the filing and an order that dismissed the petition. In its July 3, 2012 opinion, the PCRA court fully and correctly sets forth additional relevant facts and procedural history of this case. Therefore, we have no reason to restate them here. (See PCRA Court Opinion, 7/03/12, at 1-4). Appellant raises one issue for our review: Whether the PCRA court erred in dismissing [Appellant s] petition because the court s findings were not supported by the record and were not free of legal error? (Appellant s Brief, at 7). Specifically, Appellant argues that the court erred in dismissing his PCRA petition without a hearing because trial counsel was ineffective for failing to seek a psychiatric evaluation of him to determine his competency -2- J-S22040-13 to enter a valid guilty plea.1 Additionally, he alleges that counsel rendered ineffective assistance when he failed to challenge the validity of Appellant s waiver of Miranda2 warnings and to move to suppress the subsequent statements made to police. (See id. at 11).3 Our standard of review for an order denying PCRA relief is well-settled: This Court s standard of review regarding a PCRA court s order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record. Moreover, a PCRA court may decline to ____________________________________________ 1 Generally, failure to petition to withdraw [a] plea, combined with the failure to pursue direct appeal will bar consideration of an attack on one s plea in collateral proceedings. Commonwealth v. Mendoza, 730 A.2d 503, 507 n.8 (Pa. Super. 1999) (citation and internal quotation marks omitted). In the case sub judice, the record reflects that Appellant failed to petition the trial court to withdraw his plea and did not pursue a direct appeal. However, ineffectiveness claims are distinct[] from those claims that are raised on direct appeal. Commonwealth v. Collins, 888 A.2d 564, 573 (Pa. 2005). Accordingly, we will not find waiver. 2 Miranda v. Arizona, 384 U.S. 436 (1966). 3 As a general rule, no point will be considered which is not set forth in the statement of questions involved. See Commonwealth v. Roman, 714 A.2d 440, 441 n.4 (Pa. Super. 1998), appeal denied, 729 A.2d 1128 (Pa. 1998); see also Pa.R.A.P. 2116(a). Here, Appellant s vague issue in his statement of questions involved does not raise his ineffective assistance of counsel claims. (See Appellant s Brief, at 7). However, because the argument section of Appellant s brief identifies specific issues, this error does not impede our meaningful appellate review, and we therefore will not find waiver on this basis. See Savoy v. Savoy, 641 A.2d 596, 598 (Pa. Super. 1994) (addressing appellant s issues in spite of failure to include a statement of questions involved where argument section of brief specifically identified them and thus, procedural error did not impact Superior Court review). -3- J-S22040-13 hold a hearing on the petition if the PCRA court determines that a petitioner s claim is patently frivolous and is without a trace of support in either the record or from other evidence. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations and quotation marks omitted).4 Further, it is well-established that: In evaluating claims of ineffective assistance of counsel, we presume that counsel is effective. To overcome the presumption of effectiveness, Appellant must establish three factors: first that the underlying claim has arguable merit; second, that counsel had no reasonable basis for his action or inaction; and third, that Appellant was prejudiced. Counsel s assistance is deemed constitutionally effective once this Court determines that the defendant has not established any one of the prongs of the ineffectiveness test. Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (citations and quotation marks omitted) (emphasis in original). Here, although Appellant s issue is, in effect, premised on allegations of counsel s ineffectiveness, he has failed to provide meaningful discussion regarding any of the three required factors. (See Appellant s Brief, at 1114); see also Rolan, supra at 406. Although the brief lists the criteria that must be established, (see Appellant s Brief, at 11-12), it abandons any ____________________________________________ 4 We begin by noting that, when he entered his guilty plea, Appellant waived his allegations regarding counsel s claimed ineffectiveness in failing to challenge his Miranda warnings and to file a motion to suppress his statements. See Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super. 2012) ( [W]hen a defendant enters a guilty plea, he or she waives all defects and defenses except those concerning the validity of the plea, the jurisdiction of the trial court, and the legality of the sentence imposed. ) (citation omitted). -4- J-S22040-13 argument about them and their applicability to this case. 18). Accordingly, Appellant s issue is waived. (finding waiver where appellant failed to (See id. at 14- See Rolan, supra at 406 address three prongs of ineffectiveness test). Moreover, after a thorough review of the record, Appellant s brief, the applicable law, and the well-reasoned July 3 and August 22, 2012 opinions of the PCRA court, we conclude that there would be no merit to the arguments Appellant has raised on appeal. The PCRA court properly addresses and disposes of Appellant s ineffective assistance of counsel allegations. (See PCRA Ct. Op., 7/03/12, at 7-13 (finding that: (1) Appellant s ineffectiveness claims lack arguable merit and counsel s actions did not prejudice him; (2) guilty plea was knowingly, intelligently, and voluntarily entered in spite of low IQ and episodic ataxia; (3) Appellant knowingly and intelligently waived his Miranda rights; and (4) counsel was not ineffective for failing to file a motion to suppress Appellant s confession to police; see also PCRA Court Opinion, 8/22/12, at 1-3 (finding that: (1) Appellant did not offer sufficient facts, witnesses or medical certifications to justify a PCRA hearing; and (2) mere fact of Appellant s low IQ did not render his confession to police involuntary)). Accordingly, we would affirm on the basis of the PCRA court s July 3, 2012 and August 22, 2012 opinions, even if Appellant had not waived his issue. Order affirmed. -5- J-S22040-13 Donohue, J., files a Dissenting Memorandum. Judgment Entered. Deputy Prothonotary Date: 5/7/2013 -6- ,,' :; ""' ! - , .I IN THE COURT OF COMMON PLEAS OF LYCOMING COll{TY, PENNSYLVANIA COMMONWEALTH No. CR-1213-2009; CR-1713-2009 vs. /. ~!. 0 :c. ~ ~::.. ~~ o DAVID L. KILGUS, Defendant o ~" ' - ;;t:,q Opinion and Order Dismffimgr: peRA Petition g~~ l c:;oJll :::0-< 0 "1 cnRor -i OPINION AND ORDER I'TJ - ( r--.:. ;Qt"--.I , r- - '~ ~ · .1, c~::.. c-) :,-. - c.:-..:~ c,: - ""'t,. _ t. ", - - -- G -) ::r: - N N C') (J 1] r:y U1 '..0 c: :~~: --I - 'l, ~ This Opinion is written in response to Defendant's objections to the Comt's proposed dismissal of his Post Conviction Relief Act (PCRA) petition, In addition to the reasons set forth in its notice of intent to dismiss, the Court would add the following observations regarding Defendant's claims that he was not competent to waive his Miranda rights or to enter a guilty plea, In response to the proposed dismissal, defense counsel argues an evidentiary hearing is needed to determine the extent of Defendant's mental infirmities as will be revealed by testimony from Defendant's treating neurologist and his family members, Defendant has not offered to call any psychiatrist as a witness in this case, Under PelIDsylvania law, competency evaluations are conducted by psychiatrists, See 50 P,S, §7402, FUlthelIDore, Defendant has not provided a certification from any medical professional stating that he was incompetent on July 23, 2009 (the date Defendant was interviewed by the police) or on July 12,2010 (the date when Defendant entered his guilty plea). In fact, Defendant has not submitted a signed certification with respect to any potential witness in violation of Rule 902(A)(15) and 42 Pa.C.S. §9545(d)(1). FurthelIDore, it appears from the medical records submitted with Defendant's petition that Defendant's neurologist, 1 /I r Cl [ I ..' Dr. Jeffrey, last examined Defendant in March 2004, years before Defendant was interviewed by the police and then tendered a guilty plea. Even if a person can be easily influenced, he or she is not necessarily incompetent. In order to prove he is incompetent, a defendant must establish that he was either unable to understand the proceedings against him or to pruiicipate in his own defense. In its proposed dismissal, the Court noted that Defendant's responses at the guilty plea hearing showed that he was competent. In addition, it is evidence from Defendant's pro se filings that he wlderstands that he is incarcerated because he had sexual relations with a minor female, T.F. In fact, in his original pro se petition for habeas corpus, which the Court treated as a PCRA petition, Defendant makes several allegations against the minor victim, including claiming that she was promiscuous; she consented to and was the instigator of the sexual relations; and she nanled another individual as the father of her baby, which was proven false by DNA testing. Notably, Defendrult does not deny having sexual relations with the minor victim, but rather blames her for the sexual acts occUlTing. Thus, Defendant understrulds the nature of the proceedings and is capable of palticipating in his own defense. Unfortunately the infonnation alleged by Defendant, does not provide him with a defense in this case because consent is not a defense due to the age of the victim, J and her alleged promiscuity is not admissible as evidence under the Rape Shield Law, 18 Pa.C.S.§31 04. With respect to Defendant's waiver of his Miranda rights, the Cowt would I See 18 Pa.C.S.§311(c)(ineffective consent); Commonwealth v. Duffy, 832 A.2d 1132, 1140 (Pa. Super. 2003)("the governmental interest sought to be protected by the statutory sexual assault statute is in protecting younger minors from the degradations of older, more mature individuals, even if the minors consent to the sexual conduct."); Pa.SSJI (Crim) 15.3123D (consent is no defense to involuntary deviate sexual intercourse with child over 12 and under 16); Pa,SSJI (Crim) 15.3125D (consent of the child is no defense to aggravated indecent assault of a child less than 16). 2 1/ r ) \. .' rely on Commonwealth v. Chacko, 500 Pa. 571,459 A.2d 311 (1983). In Chacko, the PelIDsylvania Supreme Court found that "the fact that a defendant possesses a low LQ. does not in itself render his confession involuntary." 459 A.2d at 317. Instead, the Comi must view the totality of the circumstances including: The duration and methods of intenogation; the length of delay between arTest and arTaignment; the conditions of detailIDlent; the attitudes of the police toward defendant; defendarlt's physical and psychological state; and all other conditions present which may serve to drain one's power ofresistance to suggestion or to undemline one's selfdetennination. Id. Defendant has not alleged any facts regarding the circumstances sunounding his detainment and intenogation to show how the police undennined his self-detennination. The mere fact that he possesses a low LQ. is insufficient to show that the waiver of his Miranda rights was involUlltary. ORDER AND NOW, this .e3.:t- day of August 2012, after review of defense counsel's response to the Comi's Order giving notice of its intent to dismiss Defendant's Post Conviction Relief Act (PCRA) petition, the Court DISMISSES Defendant's PCRA petition. Defendant is hereby notified that he has the right to appeal from this order to the PelIDsylvania Superior Court. The appeal is initiated by the filing of a Notice of Appeal with the Clerk of Courts at the Lycoming COUllty courthouse, and sending a copy to the trial judge, the court reporter and the prosecutor. The fonn arld contents of the Notice of Appeal shall confonn to the requirement set forth in Rule 904 of the Rules of Appellant Procedure. The Notice of Appeal shall be filed within thiliy (30) days after the entry of the order from which the appeal is taken. Pa.R.App.P. 903. If the Notice of Appeal is not filed in the Clerk 3 1/ of Courts' office within the thiliy (30) day time period, Defendant may lose forever his right to raise these issues. The Prothonotary shall mail a copy of this order to the defendant by certified mail, return receipt requested. By The Court/l ~aJ Marc F. Lovecchio, Judge cc: A'~leth Osokow, Esquire (ADA) ~lY Boring, Esquire /'David L. Kilgus, JV-9535 (regular and certified mail) 175 Progress Drive, Waynesburg, PA 15370 ""-Work file .!?ary Weber, Esquire (Lycoming Reporter) /Suzanne Fedele, Prothonotary/Clerk of COUlis 4 /I

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.