Com. v. Myhre, J. (memorandum)

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J-S12043-21 J-S12044-21 J-S12045-21 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. JOSEPH KALIN MYHRE Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1490 EDA 2020 Appeal from the PCRA Order May 6, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002356-2017 COMMONWEALTH OF PENNSYLVANIA v. JOSEPH KALIN MYHRE Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1634 EDA 2020 Appeal from the PCRA Order Entered May 6, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0003076-2017 COMMONWEALTH OF PENNSYLVANIA v. JOSEPH KALIN MYHRE Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1635 EDA 2020 Appeal from the PCRA Order Entered May 6, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0003077-2017 J-S12043-21 J-S12044-21 J-S12045-21 BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED MAY 18, 2021 Joseph Kalin Myhre (“Myhre”), pro se, appeals, nunc pro tunc, from the Orders1 dismissing his first Petitions for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).2 We affirm. The PCRA court set forth the history underlying the instant appeal as follows: While a resident of Montgomery County, Pennsylvania, [Myhre] physically victimized his wife and children on multiple occasions. Specifically, from 2015-2017, [Myhre] struck his wife, Jill Myhre [(“Ms. Myhre”),] at least ten (10) times on separate occasions. These assaults involved [Myhre] using his fist and striking Ms. Myhre in the head with a stick as well as other items. In one instance, [Myhre] hit Ms. Myhre on the ear repeatedly, causing disfigurement of her ear known as cauliflower ear. In 2015, [Myhre] grabbed his wife’s hand and hit it with enough force to cause a fracture[,] which required surgery and the insertion of screws. On one occasion, [Myhre] stabbed Ms. Myhre’s hand with a steak knife[,] which resulted in a permanent scar. From 2015-2017, [Myhre], on several occasions, placed himself on top of Ms. Myhre, pinned her down with his legs and proceeded to strangle her. In March 2017, [Myhre] put his hand around Ms. Myhre’s neck and impeded her ability to breathe. On or about March 14, 2017, [Myhre] repeatedly hit his wife in the ____________________________________________ Myhre filed identical Petitions at each docket number. The PCRA court entered identical Opinions at each docket number. In addition, Myhre and the Commonwealth have entered identical briefs at each docket number. Accordingly, we will address the issues raised in one Memorandum. 1 2 42 Pa.C.S.A. §§ 9541-9546. -2- J-S12043-21 J-S12044-21 J-S12045-21 back of her head[,] which ultimately caused her to suffer a skull fracture. [Myhre] struck his son and daughter, [the (“Children”)] in their heads repeatedly, resulting in traumatic brain injuries. During these incidents, [Myhre] used a PVC pipe, sticks and sometimes a closed fist. [Myhre] hit [Children] at least weekly in the period from 2015-2017. During this same period, [Myhre] would occasionally pin [Children] on the ground and sitting [sic] on them so they could not move, and he would strike or strangle them at the same time. Also during this time period, [Myhre] placed lancets under [Children’s] nails[,] which caused them pain. On one occasion, [Myhre] commanded [the Children] to place a shock collar on their bodies and he would activate the collar, thereby causing [Children] to suffer pain. Between January 1, 2017[,] and March 14, 2017, [Myhre] strangled [Children] by putting his hands around their necks and squeezing, thereby impeding their ability to breathe. Authorities arrested [Myhre] on March 15, 2017, following the March 14, 2017[,] assault in which his wife suffered a skull fracture. On February 27, 2018, [Myhre] entered into a negotiated plea agreement in which he pled guilty to three (3) counts of aggravated assault (serious bodily injury), two (2) counts of aggravated assault (serious bodily injury with a deadly weapon), two (2) counts of aggravated assault (serious bodily injury where victim is less than 13 years of age), three (3) counts of strangulation, eighteen (18) counts of simple assault, one (1) count of unlawful restraint, two (2) counts of unlawful restraint of a minor where offender is victim’s parent[,] and two (2) counts of endangering the welfare of a child.[FN] As part of the plea agreement, the court sentenced [Myhre] to the agreed aggregate sentence of twenty (20) to forty (40) years of imprisonment and twenty-seven (27) years of concurrent probation…. [See] 18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4), 2702(a)(9), 2718(a)(1), 2701(a)(1), 2902(a)(1), … 2902(c)(1) and 4304(a)(1)[,] respectively. [FN] -3- J-S12043-21 J-S12044-21 J-S12045-21 On February 14, 2019, [Myhre] filed a timely PCRA Petition. On February 27, 2019, the court appointed PCRA counsel. On March 26, 2019, counsel filed a “no-merit” letter dated March 27, 2019[,] and a supplemental “no[-]merit” letter dated April 2, 2019, in accordance with Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) [(en banc)], together with a Petition to Withdraw as Court Appointed Counsel for [Myhre] dated March 27, 2019. PCRA Court Opinion, 9/15/20, at 1-3 (footnote in original). After appropriate Notice pursuant to Pa.R.Crim.P. 907, to which Myhre responded, the PCRA court granted counsel’s Petition to Withdraw, and dismissed Myhre’s PCRA Petition. The interim procedural history is not relevant to the instant appeal.3 Ultimately, on July 7, 2020, the PCRA court issued an Order reinstating Myhre’s right to appeal the dismissal of his first PCRA Petition, nunc pro tunc, within 30 days. Myhre’s pro se Notice of Appeal at 1490 EDA 2020 was docketed on August 17, 2020. This Court issued a Rule to Show Cause as to why Myhre’s appeals at the remaining docket numbers should not be quashed as untimely filed. In his Response to the Rule, Myhre indicated that he filed three separate Notices of Appeal, one for each of his three docket numbers, in a single envelope, on July 31, 2020. However, Myhre claimed that only the ____________________________________________ On appeal of a second PCRA Petition filed by Myhre, this Court reinstated Myhre’s appeal rights, as to the dismissal of his first PCRA Petition, nunc pro tunc. See Commonwealth v. Myhre, 239 A.3d 43 (Pa. Super. 2020) (unpublished memorandum). 3 -4- J-S12043-21 J-S12044-21 J-S12045-21 appeal at 1490 EDA 2020 was properly noted on the docket. Myhre claims that he alerted the county clerk of courts as to the error, but the error was not corrected. Myhre has since provided a copy of the envelope he used to mail the Notices of Appeal, date stamped July 31, 2020. Myhre also has provided a cash slip for the mailing. The cash slip does not indicate whether the envelope was mailed. However, under these circumstances, we will consider Myhre’s Notices of Appeal to be timely filed.4 Myhre presents the following claims for our review: 1. [Whether] trial counsel was ineffective for failing to respond, reject, or rebut the Motion to Amend filed by the Commonwealth[?] Furthermore, [c]ounsel was aware of an alibi defense pre-Motion to Amend[,] and instead advised [] Myhre to rush [into] a plea agreement, thereby compromising the integrity of the defense. 2. [Whether] sentencing counsel was ineffective for failing to request a Pre-Sentence Investigation (PSI) and instead waive it in open court[?] …. 3. [Whether] trial/sentencing counsel was ineffective for failing to request that [] Myhre receive an evaluation pursuant to the Pennsylvania Mental Health Procedures Act[,] 50 P.S. § 1701[] et seq. [(“MHPA”),] to determine whether he was fully competent to stand trial due to his documented mental health issues and psychiatric treatment[?] 4. Did [] Myhre suffer layered ineffective assistance of counsel [] on appeal[,] where counsel failed to investigate/argue the inherent issues herein[?] ____________________________________________ See Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa. Super. 2019) (recognizing that, in accordance with the “prisoner mailbox rule,” “a pro se prisoner’s document is deemed filed on the date he delivers it to prison authorities for mailing.”). 4 -5- J-S12043-21 J-S12044-21 J-S12045-21 Brief for Appellant at 5-6 (unnumbered) (some capitalization omitted). As our Supreme Court has explained, [u]pon reviewing an order in a PCRA matter, we must determine whether the findings of the PCRA court are supported by the record and whether the court’s legal conclusions are free from error. The findings of the PCRA court and the evidence of record are viewed in a light most favorable to the prevailing party. The PCRA court’s credibility determinations, when supported by the record, are binding; however, this [C]ourt applies a de novo standard of review to the PCRA court’s legal conclusions. We must keep in mind that the petitioner has the burden of persuading this Court that the PCRA court erred and that such error requires relief. Finally, this Court may affirm a valid judgment or order for any reason appearing of record. Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations omitted). Myhre’s claims each assert the ineffective assistance of his prior counsel. 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). To satisfy this burden, an appellant must plead and prove by a preponderance of the evidence that[] “(1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different.” Commonwealth v. Fulton, … 830 A.2d 567, 572 ([Pa.] 2003). Failure to satisfy any prong of the test will result in rejection of the appellant’s ineffective assistance of counsel claim. Commonwealth v. Jones, … 811 A.2d 994, 1002 ([Pa.] 2002). Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017). -6- J-S12043-21 J-S12044-21 J-S12045-21 Myhre first claims that his trial counsel rendered ineffective assistance by failing to “respond, reject, or rebut the Motion to Amend filed by the Commonwealth.” Brief for Appellant at 9 (unnumbered). Myhre argues that he was “charged by Montgomery County … for crimes alleged to have occurred approximately two (2) years prior to him residing in Pennsylvania.” Id. at 14 (unnumbered). In particular, Myhre challenges his counsel’s failure to respond to the Commonwealth’s Motion to Amend the Bills of Information, which sought to change the date ranges of the crimes alleged in the initial indictment. Id. According to Myhre, counsel instead informed him that the Commonwealth already had changed the dates and would be proceeding to trial. Id. According to Myhre, this information was false, and caused him to plead guilty. See id. Myhre asserts that the Commonwealth had lacked jurisdiction to prosecute these crimes, as he was not in the jurisdiction at the beginning of the date range set forth in the Commonwealth’s criminal Information. Id. Further, Myhre asserts that the Commonwealth would not have been allowed to amend the dates had counsel responded to the Motion to Amend. Id. This abandonment by counsel, Myhre asserts, was per se ineffective assistance of counsel. Id. at 15 (unnumbered). Myhre further argues that counsel’s misrepresentation to him constituted fraud. Id. In its Opinion, the PCRA court thoroughly addressed Myhre’s claim, and concluded that it is without merit. See PCRA Court Opinion, 9/15/20, at 412. The PCRA court’s findings are supported in the record, and its legal -7- J-S12043-21 J-S12044-21 J-S12045-21 conclusions are sound. See id. We therefore affirm on the basis of the PCRA court’s Opinion with regard to this claim. See id. In his second claim, Myhre argues that his counsel rendered ineffective assistance by not requesting a PSI. Brief for Appellant at 17 (unnumbered). Myhre asserts that his prior counsel had entered into an agreement with the Commonwealth that a PSI would be prepared prior to sentencing. Id. According to Myhre, this PSI “would have contained information that could have influenced the court to potentially impose a lesser sentence in the event that the court did not accept the plea agreement.” Id. at 17-18 (unnumbered). Myhre asserts that information regarding his prior record and mental health might have secured a more favorable plea and more lenient sentence. Id. at 18 (unnumbered). Myhre asserts “that he was ill-advised to state on the record that he wished to waive his PSI[,] as it is entirely plausible that the [c]ourt could have refused the negotiated plea[,] due to the potential findings[,] and as a result created a highly prejudicial situation.” Id. The PCRA court, in its Opinion, addressed this claim and concluded that it lacks merit. See PCRA Court Opinion, 9/15/20, at 12-14. We agree and affirm on the basis of the PCRA court’s Opinion with regard to this claim.5 See id. ____________________________________________ We note that Myhre expressly waived a PSI in his written guilty plea colloquy. Written Plea Colloquy, 2/28/16, ¶¶ 40-42. 5 -8- J-S12043-21 J-S12044-21 J-S12045-21 In his third claim, Myhre argues that his trial and sentencing counsel rendered ineffective assistance by failing to request that he receive a mental health evaluation in accordance with the MPHA. Brief for Appellant at 19 (unnumbered). According to Myhre, his counsel improperly failed to request a hearing to determine whether his diagnosis of autism and attention deficit hyperactivity disorder (“ADHD”) impacted his ability to participate in the court proceedings. Id. at 20 (unnumbered). Myhre states that counsel’s failure to conduct any pretrial investigation constitutes a clear case of ineffective assistance of counsel. Id. at 21 (unnumbered). According to Myhre, “if trial counsel would have conducted an investigation into [] Myhre’s background, she would have seen that he meets all of the requirements set forth in Commonwealth v. Miller, 888 A.2d 624 (Pa. 2005).6 Id. at 23 (unnumbered). Myhre argues that trial counsel had no reasonable basis for failing to investigate this issue. Id. ____________________________________________ In Atkins v. Virginia, 546 U.S. 304 (2002), the United States Supreme Court held that the federal Constitution “‘places a substantive restriction on the State[s’] power to take the life of a mentally retarded person,” id. at 321 (citation and internal quotation marks omitted). However, the Supreme Court left to the states the task of developing the appropriate procedures for enforcing this substantive restriction. Id. at 317. Recognizing the lack of legislation on this issue, our Supreme Court in Miller held that an individual, faced with the death penalty, is “intellectually disabled for purposes of the Eighth Amendment if he demonstrates (1) limited intellectual functioning; (2) significant adaptive limitations; and (3) onset prior to age 18.” Commonwealth v. VanDivner, 178 A.3d 108, 111 (Pa. 2018). The instant case does not involve the death penalty. 6 -9- J-S12043-21 J-S12044-21 J-S12045-21 Initially, we observe that Myhre did not raise this claim in his PCRA Petition. Rather, Myhre claimed that he was unaware of the consequences of his guilty plea. See PCRA Petition, 2/14/19, at 8 (stating “the court did not advise [Myhre] of potential consequences of pleading guilty.”). Consequently, we cannot address this claim for the first time on appeal. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the first time on appeal). In his fourth claim, Myhre argues that all prior counsel failed to investigate/argue “the inherent issues herein.” Brief for Appellant at 24 (unnumbered). In support, Myhre argues that “an appeal is a right and should be addressed by competent counsel. [] Myhre suffered clear [ineffective assistance of counsel] by both trial counsel and PCRA appointed [c]ounsel.” Id. at 24-25 (unnumbered). However, Myhre does not develop his claim of layered ineffective assistance by PCRA counsel.7 Myhre fails to present any argument on the three prongs of an ineffectiveness claim as to PCRA counsel. See Commonwealth v. Reid, 99 A.3d 470, 482 (Pa. 2014) (requiring that a petitioner must present argument, “in briefs or other court memoranda, on the three prongs of the [ineffectiveness test] as to each relevant layer of representation.”); Holt, supra. Because Myhre has failed to do so, we cannot grant him relief on his layered claim of ineffective assistance of PCRA counsel. ____________________________________________ As set forth above, Myhre’s prior claims of ineffective assistance of counsel lack merit. 7 - 10 - J-S12043-21 J-S12044-21 J-S12045-21 Orders affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/18/2021 - 11 - Circulated 04/20/2021 09:41 AM

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