Com. v. Krueger, J. (memorandum)

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J-S39008-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JEFFREY KRUEGER, Appellant No. 1195 WDA 2013 Appeal from the PCRA Order Entered July 15, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0012273-2004 BEFORE: BENDER, P.J.E., WECHT, J., and PLATT, J.* MEMORANDUM BY BENDER, P.J.E.: FILED JULY 11, 2014 Appellant, Jeffrey Krueger, appeals from the July 15, 2013 order denying his petition for post-conviction relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm. On November 7, 2007, Appellant proceeded to a nonjury trial. At the conclusion of trial, Appellant was found guilty of two counts of aggravated assault, two counts of recklessly endangering another person, and two violations of the Motor Vehicle Code, 75 Pa.C.S. § 101 et. seq. On February See ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S39008-14 Commonwealth v. Krueger, 988 A.2d 722 (Pa. Super. 2009) (unpublished memorandum). On February 24, 2010, Appellant filed a timely pro se PCRA petition. The court subsequently appointed counsel, who filed a motion to withdraw as counsel on July 8, 2010, and an accompanying Turner/Finley1 ng Appellant lacked any meritorious issues worthy of PCRA relief. On October 6, 2010, the PCRA court dismissed all issues in regarding restitution. Following a hearing on Appell the court denied PCRA relief on February 25, 2011. On December 20, 2011, ineffective for failing to file a Petition for Allowance of Appeal to the Supreme See Commonwealth v. Krueger, 40 A.3d 199 (Pa. Super. 2011) (unpublished memorandum). At the close of that hearing on June 13, 2013, the court issued an order timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he presents two issues for our review: ____________________________________________ 1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988 (en banc). -2- and J-S39008-14 I. Whether the [PCRA] court erred in finding counsel effective when counsel knew [] Appellant intended to continue his appeal and counsel failed to file a [Petition for Allowance of Appeal]? II. Whether the [PCRA] court erred in finding counsel effective when he failed to consult with [] Appellant regarding the advantages and disadvantages of filing an appeal to the Supreme Court? standard of review from the grant or denial of post-conviction relief is limited Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received ineffective assistance of counsel, our Supreme Court has stated that: [A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner. To obtain relief, was deficient and that the deficiency prejudiced the petitioner. A unprofessional errors, the result of the proceeding would have posits that: (1) the underlying legal issue has arguable merit; -3- J-S39008-14 (3) actual prej omission. Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations omitted). because he failed to discuss with Appellant the advantages and disadvantages of filing a petition for allowance of appeal to our Supreme Court. Rather, Appellant claims, their consultation was inadequate as it Attorney Debbis testified at the June 13, 2013 PCRA hearing that he corresponded with Appellant via email, and those emails were entered into evidence at the hearing. N.T. Hearing, 6/13/13, at 10. In these emails, Attorney Debbis informed Appellant that filing a petition for allowance of expected it Appendix, at 4. Attorney Debbis advised Appellant that, given the record in the instant case, as well as the applicable law, the Supreme Court was unlikely to grant Appellant relief on his challenge to the weight of the evidence supporting his conviction. Id. Moreover, Attorney Debbis fact that appeals to the Supreme Court are not of right. Id. at 1 2. Attorney Debbis informed Appellant that the Supreme Court selects a small -4- J-S39008-14 question of law the Court would be likely to review. Id. In addition, Attorney Debbis testified at the PCRA hearing that ineffectiveness of counsel, claims. Id. at 13. i.e., He informed Appellant that such claims were cognizable in a PCRA petition. Id. In response, Appellant Id. at 14. As such, we conclude that the record was sufficient to establish that Attorney Debbis acted effectively when he consulted with Appellant regarding his filing of a petition for allowance of appeal to our Supreme Court. Next, Appellant claims that Attorney Debbis failed to file a petition for allowance of appeal after Appellant directed him to do so. We conclude that this claim is likewise belied by the record. As the emails clarify, Attorney Debbis repeatedly and explicitly asked Appellant if he wished to file a 4, 5, 7, 9. Appellant ultimately told Attorney Debbis not to file the petition. Id. Supreme Court could consider an issue not raised in the Superior Court. Id. would be limited to the issues raised in Superior Court. Id. In his final forgo it, and move on to the PCRA. Do you have any suggestions on how I -5- J-S39008-14 Id. at 1. Accordingly, the record is sufficient to establish that Attorney Debbis was not ineffective when he did not file a petition for allowance of appeal to our Supreme Court on behalf. In sum, our review of the record reveals that the PCRA court did not err in concluding that Attorney Debbis acted effectively. Accordingly, we Order affirmed. Judge Wecht did not participate in the consideration or decision of this case. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/11/2014 -6-

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