Com. v. Kress, J. (memorandum)

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J-S35021-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JONATHAN ROBERT KRESS Appellant No. 1254 MDA 2013 Appeal from the PCRA Order of June 17, 2013 In the Court of Common Pleas of Lycoming County Criminal Division at Nos.: CP-41-CR-0001279-2008 CP-41-CR-0001990-2008 BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J.* MEMORANDUM BY WECHT, J.: FILED JULY 01, 2014 Jonathan Kress appeals the June 17, 2013 order dismissing his petition §§ 9541-46. We affirm. On December 4, 2008, Kress pleaded guilty to one count each of involuntary deviate sexual intercourse and sexual abuse of children. 1 guilty pleas as follows: On July 11, 2008, [Kress] invited the fourteen (14) year[-]old movies. [Kress] and the victim were neighbors, and [Kress] ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. §§ 3123 and 6312, respectively. On J-S35021-14 in these activities. On this particular occasion, [Kress] asked the victim to watch [] pornography and instructed him to undress. [Kress] rubbed the victim all over his body, including his genitals. On two subsequent occasions, [Kress] engaged in anal intercourse with the victim and performed oral sex on him. The over nine thousand (9000) digital images depicting children engaged in sexual acts. The age range of the children in the images was between two (2) and fifteen (15) years old. Commonwealth v. Kress, No. 813 MDA 2009, slip op. at 1-2 (Pa. Super. March 16, 2010). incarceration, and a consecutive seven-year term of probation. After an evaluation, Kress also was designated to be a sexually violent predator designation on direct appeal. Id. at 1, 8. Thereafter, Kress filed a timely petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on October 4, 2011. Commonwealth v. Kress, 29 A.3d 372 (Pa. 2011) (per curiam). On December 6, 2012, Kress filed a timely pro se PCRA petition.2 On December 13, 2012, the PCRA court appointed counsel to represent Kress ____________________________________________ 2 To be timely, a PCRA petition must be filed within one year of the date that a judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking (Footnote Continued Next Page) -2- J-S35021-14 during the PCRA proceedings. On February 11, 2013, appointed counsel filed a petition to withdraw as counsel pursuant to the dictates of Turner/Finley.3 On April 16, 2013, the PCRA court issued an opinion and PCRA petition lacked merit. The court issued a separate order granting dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. On July 9, 2013, Kress filed a pro se notice of appeal. On August 20, 2013, this Court entered an order directing the PCRA court to appoint counsel to represent Kress on appeal, because a PCRA petitioner is entitled to counsel on a first PCRA petition. On August 29, 2013, the PCRA court entered an order clarifying for this Court that Kress already had been appointed an attorney, but that attorney withdrew pursuant to Turner/Finley. As such, Kress no longer was entitled to court-appointed (Footnote Continued) _______________________ Id. appeal was denied on October 4, 2011. Kress had ninety days from that date to file a petition for a writ of certiorari with the United States Supreme Court. See became final on or about January 2, 2012. To be timely, Kress had to file a PCRA petition within one year of that date. Kress filed his petition on December 6, 2012, well within that time limit. was timely filed. 3 See Commonwealth v. Turner, 544 A.2d 927 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). -3- (Pa. 1988); J-S35021-14 2013 order and appointed a second attorney to represent Kress. On this Court vacated its earlier order requiring the PCRA court to appoint counsel. The PCRA court did not direct Kress to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Accordingly, Kress did not file a concise statement. Nonetheless, on November 14, 2013, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a), wherein the court adopted its ratio forth in its April 16, 2013 opinion and order. Presently, Kress raises the following issues for our consideration: 1. Does the Pennsylvania Constitution afford the Court of Common Pleas the right to, the legislature, the right to, or any other entity the right to prosecute [Kress] for said 2. Did judicial misconduct exist, and if so, does it warrant a new trial, a dismissal of the case, or other relief? 3. Did the Court of Common Pleas, an Evidence lack jurisdiction and did it prejudice [Kress]? 4. [Were] the facts of the case misrepresented and was a valid defense presented at [the] Guilty Plea Stage, thereby invalidating the plea due to making it unintelligent? 5. Did the Court of Common Pleas [err] in not allowing [Kress] the right to amend/supplement his petition (PCRA)? -4- J-S35021-14 6. Was there enough evidence of Ineffective Assistance of Counsel to render Attorney equate [sic] to a prejudice of [Kress]? 7. plea? 8. 9. Did a conflict of interest or prejudice exist with Attorney Donald Martino? 10. Does the Sexual Abuse of Children Statute violate the constitution, and should it be repealed?-- [Kress] understands this question is one for the Supreme Court but is preserving it in this petition. 11. Was there a lack of subject matter jurisdiction in the charging and convicting of [Kress]? 12. Is the charging of crimes again on a new docket illegal? 13. voluntarily, and intelligently? 14. Do the mandatory minimum statutes, of which [Kress] was sentenced under violate the PA or US Constitution[s]? 15. Was [Kress] charged with valid laws and convicted appropriately under such laws? 16. Did the actions of the Williamsport Police department cause [Kress] to be prejudiced, and if so, is it reversible error or does it require action to be taken? 17. Are the errors on the criminal Informations that were filed wrot [sic] with enough errors to cause them to be inadmissible, and/or unenforceable. Additionally do they tutional rights? Brief for Kress at 1-3 (unpaginated). Our review of an order granting or denying PCRA relief is limited to ascertaining whether the record supports the determination of the PCRA court and whether the ruling is free of legal error. -5- Commonwealth v. J-S35021-14 Johnson, 966 A.2d 523, 532 (Pa. 2009). Where the record supports a post- determination. Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa. Super. 1999). Although Kress lists seventeen issues for our review, his brief only addresses the first six listed issues. Kress provides no merits-based discussion whatsoever relevant to issues seven through seventeen. those issues are waived. Thus, ll be See divided into as many parts as there are questions to be argued; and shall have at the head of each part--in distinctive type or in type distinctively displayed--the particular point treated therein, followed by such discussion 4 and citation of authori Kress comingles some of these issues and provides only passing reference to others. Nonetheless, each issue is addressed in some form, although rambling and incoherent at times. However, Kress does not support any of ____________________________________________ 4 In his brief, Kress notes that he ran out of time to adequately prepare his brief on these issues, and requests that we grant him the right to supplement his brief with discussion of those issues. We decline the request. Although we recognize that prisons do not provide the ideal environment for the satisfactory construction of an appellate brief, the proper remedy for seeking more time to complete a brief is a motion for an extension of time. Kress could have, and should have, filed for an extension of time if he did not have sufficient time to complete his brief. Because he did not, we will not grant his request for more time to brief his issues at this juncture. -6- J-S35021-14 these arguments with citations to applicable and binding case law in violation of Rule 2119(a). The failure to support an argument with such authorities results in waiver of that claim. Commonwealth v. Antidormi, 84 A.3d meaningfully addressing his claims, and necessarily produce the type of cited no legal authorities nor developed any meaningful analysis, we find Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa. Super. 2012) (citing Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)); Pa.R.A.P. 2119(a). (unpaginated). We disagree. Recently, in Commonwealth v. Elia, 83 A.3d 254, 265 (Pa. Super. 2013), we explained the subject matter jurisdiction possessed by the courts of common pleas over crimes committed in this Commonwealth: [I]n Commonwealth v. Seiders, 11 A.3d 495 (Pa. Super. 2010), we set forth the following governing standards pertaining Subject matter jurisdiction speaks to the competency of a court to hear and adjudicate the type of controversy presented. Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003). Jurisdiction is purely a question of law; the appellate standard of review is de novo and the scope of review is plenary. Commonwealth v. John, 854 A.2d 591, 593 (Pa. Super. 2004). . . . Controversies stemming -7- J-S35021-14 from violations of the Crimes Code are entrusted to the original jurisdiction of the courts of common pleas for resolution. Bethea, 828 A.2d at 1074; 18 Pa.C.S. § 102. All jurists within that tier of the unified judicial system are competent to hear and resolve a matter arising out of the Crimes Code. Bethea, 828 A.2d at 1074; Pa. Const. Art. 5, § 5 (establishing the jurisdiction of the courts of common pleas within the unified judicial system); 42 Pa.C.S. § 931(a) (defining the unlimited original jurisdiction of the courts of common pleas). While each court of common pleas in this state possesses the same subject matter jurisdiction to decide cases only be exercised beyond the territorial boundaries of the judicial district in which it sits in the most limited of Bethea, 828 A.2d at 1074. The law is clear that the locus of a crime is always in issue, for the court has no jurisdiction [over] the offense unless it occurred within the county of trial, or unless, by some statute, it need not[.] For a county to take jurisdiction over a criminal case, some overt act involved in that crime must have occurred within that county. In order to base jurisdiction on an overt act, the act must have been essential to the crime, an act which is merely incidental to the crime is not sufficient. Commonwealth v. Boyle, 532 A.2d 306, 309-10 (Pa. 1987). Seiders, 11 A.3d at 496-97 (footnote omitted; some citations modified). Elia, 83 A.3d at 265 constituted crimes under our Crimes Code, and occurred within the boundaries of Lycoming County. Thus, the trial court had subject matter arily fails. -8- J-S35021-14 In issue six, Kress argues that his trial counsel was ineffective for induced Kress to elect to proceed with a trial instead of pleading guilty. Kress does not specify except for the implication that some evidence may have existed to demonstrate that he did not know that his victim was fourteen years old and that mistake of age may have been a potential defense to the crimes to which he pleaded guilty. Among other things, Kress identifies other instances of alleged ineffectiveness as follows: [Trial counsel] did not argue the change in terms of the preliminary waiver (from supervised bail to intensive supervised), (from can move to Mifflin County with parents, to must stay in Lycoming), refused to present requests on appeal (noted in Superior Court Docketing Statement he filed) violation [of] rules of Prof. Cond. 1.2a, did not provide [Kress] with legal documents, refused to gather exculpatory evidence, to the guilty plea form, misrepresented the law in regard to mistake of age, allowed [Kress] to plead guilty when he had informed him that he believed [ critical age. [Counsel] did not pursue conflict of interest/prejudice with the [assistant district attorney] (was the defense attorney, and lost in a case where I was the victim.) forget the citation, but the Williamsport Sun Gazette was on the prosecution side of things. [Counsel] made no attempt to gather the cell phone data, the video showing the illegal entry into s] laptop to show is over sixty porn websites he was frequenting of male and female actors that he had visited prior to the alleged events. [Counsel] failed to do any investigation and provided practically no representation, let alone adequate representation. Brief for Kress at 13 (unpaginated). -9- J-S35021-14 The principles governing claims of ineffective assistance of counsel are well-settled. In Pennsylvania, counsel is presumed effective, and a defendant bears the burden of proving otherwise. In order to be entitled to relief on a claim of ineffective assistance of counsel, the PCRA petitioner must plead and prove by a preponderance of the evidence that (1) the underlying claim has arguable merit; (2) counsel whose effectiveness is at issue did not have a reasonable basis for his action or inaction; and (3) the PCRA omissions were reasonable, we do not question whether there were other more logical course of actions which counsel could decisions had any reasonable basis. Further, to establish prejudice, a petitioner must demonstrate that but for the act or omission in question, the outcome of the proceedings would have been different. Where it is clear that a petitioner has failed to meet any of the three, distinct prongs . . ., the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met. Commonwealth v. Steele, 961 A.2d 786, 796-97 (Pa. 2008) (citations and internal quotation marks omitted); see Commonwealth v. Pierce, 527 -established criteria for review, a petitioner must set forth and individually discuss substantively each prong of the Pierce Steele, 961 A.2d at 797 (citations omitted). Kress makes no meaningful attempt to address each of the three prongs of the Pierce test. Kress sets forth only the laundry list of claims that we set forth above, but does not discuss each individually in terms of whether the claims have arguable merit under our current laws. Moreover, - 10 - J-S35021-14 be [no] reasonable Kress at 13. Such undeveloped claims and bald assertions fall well short of ineffective. See Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. - 11 - J-S35021-14 Order affirmed.5 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/1/2014 ____________________________________________ 5 Kress has filed two documents with this Court. The first is a motion, 2013 order from this Court. In our order, we noted that we were denying the petition without prejudice to re-raise his concerns in his brief. As was the case when we originally entered the order, it is difficult to discern what relief Kress actually was seeking in the motion. attempt by Kress to provide additional background on this case, including his understanding of the relationship that he had with the victim and his understanding of the law at the time of his offenses. Kress appears to make no specific request for relief, other than to request that we reconsider his to pursue relief from this panel, we grant his request to reconsider his we can decipher, Kress presents to this Court a litany of questions that he believes remain unanswered in his case. Many of the questions pertain to the earlier procedural history of the case and the motions and request that were denied by the trial cour clear that Kress seeks review of multiple legal issues that have arisen in his case. We may only address the legal issues that are preserved and presented to this Court, and those that fall within the purview of the PCRA. We cannot sidestep these basic requirements, and address substantive legal - 12 -

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