Com. v. Nuttall, A. (memorandum)
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J-S78007-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ANTHONY WAYNE NUTTALL, Appellant No. 1647 WDA 2015 Appeal from the PCRA Order Entered September 16, 2015 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003461-2006 BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.* MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 30, 2016 Appellant, Anthony Wayne Nuttall, appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant asserts two ineffective assistance of counsel (IAC) claims, both pertaining to the allegedly deficient performance of his trial attorney. After careful review, we affirm. On January 17, 2008, Appellant was convicted by a jury of numerous offenses1 related to the sexual molestation of his stepdaughter, M.M. The ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 The jury convicted Appellant of one count of Rape, 18 Pa.C.S. § 3121(a)(1); three counts of Involuntary Deviate Sexual Intercourse, 18 Pa.C.S. § 3123(a)(7); one count of Aggravated Indecent Assault, 18 Pa.C.S. § 3125(a)(8); one count of Indecent Assault, 18 Pa.C.S. § 3126(a)(1); two counts of Unlawful Communication or Contact with a Minor, 18 Pa.C.S. § (Footnote Continued Next Page) J-S78007-16 offenses occurred over the course of many years, beginning just before M.M. turned twelve years old, and continuing until she was seventeen, when she finally revealed the abuse to friends and family.2 The sentencing court, after first determining that Appellant met the criteria to be deemed a sexually violent predator, sentenced Appellant to an aggregate term of 33 years’ and 2 months’ to 112 years’ incarceration. Appellant’s initial direct appeal was quashed. However, Appellant successfully sought restoration of his direct appeal rights, as his appellate counsel had abandoned him by failing to file an appellate brief on his behalf. Thereafter, Appellant filed a nunc pro tunc notice of appeal on May 16, 2011. On June 22, 2012, this Court affirmed Appellant’s judgment of sentence. Commonwealth v. A.W.N., 53 A.3d 938 (Pa. Super. 2012) (unpublished memorandum). Appellant did not seek further review of that decision. Thus, [Appellant’s] judgment of sentence became final on or about July 22, 2012, at the expiration of time for seeking review. [Appellant] filed the instant[,] timely PCRA petition … on or about June 24, 2013. … A PCRA hearing was held before this Court on or about April 14, 2015 and briefs of the respective parties were ordered. … [Appellant]'s Memorandum of Law in support [of] the Post-Conviction Petition was filed on or about June 24, 2015. … The Commonwealth's Response … was filed on or about August 4, 2015. (Footnote Continued) _______________________ 6318(a)(1); two counts of Corruption of Minors, 18 Pa.C.S. § 6301(a)(1); and one count of Criminal Solicitation, 18 Pa.C.S. § 902(a). 2 A full recitation of the facts underlying Appellant’s conviction can be found in the PCRA court’s opinion. See PCRA Court Opinion (PCO), 9/16/15, at 37. -2- J-S78007-16 PCO at 2-3. On September 16, 2015, the PCRA court entered an order denying Appellant’s PCRA petition, id. at 25-26, and simultaneously issued an opinion setting forth the reasons for its decision. Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on November 16, 2015. On November 18, 2015, the PCRA court entered an order adopting its September 16, 2015 opinion in lieu of issuing a Rule 1925(a) opinion. Appellant now presents the following issues for our review, restated herein for clarity: 1. Was trial counsel ineffective for failing to request a priorbad-acts cautionary instruction, where the trial court, in admitting the prior-bad-acts evidence, represented that it would give such an instruction but failed to do so? 2. Was trial counsel ineffective for presenting no character witnesses on Appellant’s behalf, where Appellant testified at the PCRA hearing that such witnesses would have been available at trial, and where trial counsel could not recall the reason why he failed to call them to testify? See Appellant’s Brief at 1. After reviewing the certified record, the parties’ briefs, and the relevant law, we conclude that the well-reasoned opinion of the Honorable Rita Donovan Hathaway thoroughly addresses each of Appellant’s IAC claims, and correctly concludes they lack merit. Accordingly, we adopt the portions of the PCRA court’s September 16, 2015 opinion addressing these matters as our own, and affirm the PCRA court’s denial of Appellant’s PCRA petition on the basis of that opinion. See TCO at 11-16 (addressing and -3- J-S78007-16 rejecting Appellant’s prior-bad-acts cautionary instruction IAC claim); at 2224 (addressing and rejecting Appellant’s character witness IAC claim). Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/30/2016 -4- Circulated 11/10/2016 02:20 PM
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