Commonwealth v. Abebe

1

COMMONWEALTH OF PENNSYLVANIA v. HELINA ABEBE, Appellant

No. 540 MDA 2024

No. J-S35026-24

Superior Court of Pennsylvania

October 11, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered March 4, 2024 In the Court of Common Pleas of Clinton County Criminal Division at No(s) CP-18-CR-0000513-2020.

Benjamin D. Kohler, Esq.

BEFORE: PANELLA, P.J.E., MURRAY, J., and KING, J.

MEMORANDUM

MURRAY, J.:

Helina Abebe (Appellant) appeals from the order denying her first petition filed pursuant to the Post Conviction Relief Act (PCRA). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

Appellant entered a negotiated guilty plea to one count of aggravated assault^[1] on October 7, 2021. On April 12, 2022, the trial court sentenced Appellant, commensurate with the plea agreement, to a 10-year term of probation. The court also ordered Appellant to pay restitution of approximately $28,500.

Appellant was represented during the plea proceedings by court-appointed counsel, Fred Lingle, Esquire (Attorney Lingle). After sentencing, however, Appellant expressed her dissatisfaction with Attorney Lingle's representation. See N.T., 12/6/21, at 4. The trial court subsequently permitted Attorney Lingle to withdraw and appointed Marc A. Decker, Esquire (Attorney Decker or standby counsel), to represent Appellant.

Attorney Decker filed a post-sentence motion (PSM) on Appellant's behalf on April 28, 2022. In the interim, on April 18, 2022, Appellant filed a pro se notice of appeal from her judgment of sentence. This Court dismissed the appeal as prematurely filed, pointing out Appellant's PSM remained pending. Order (617 MDA 2022), 7/6/22 (citing Commonwealth v. Claffey, 80 A.3d 780, 783 (Pa. Super. 2013) (stating appeals filed while post-sentence motions remain pending are premature)).

The trial court held a hearing on Appellant's PSM on July 11, 2022 (PSM hearing). Appellant, represented by Attorney Decker, appeared remotely via Zoom. At the beginning of the PSM hearing, Attorney Decker stated, "[A]bout 20 minutes ago, [Appellant] indicated to me that she was going to be requesting to proceed pro se moving forward…." N.T., 7/11/22, at 3. The trial court conducted a thorough colloquy of Appellant to ensure she knowingly, voluntarily, and intelligently waived her right to counsel.^[2] See id. at 5-8; see also Pa.R.Crim.P. 121(A)(2). Appellant confirmed that it was her desire to proceed pro se, and to withdraw the pending PSM. N.T., 7/11/22, at 8; see also id. at 6 (Appellant stating, "I feel as though I'm fully capable of representing myself….").

Following the PSM hearing, the trial court issued an order stating,

The appointment of [Attorney] Decker … to represent [Appellant] is vacated. [Appellant] shall proceed pro se in representing herself. [Attorney] Decker … is appointed standby counsel for any future proceedings in this matter. The [PSM] … filed by [Attorney] Decker … is deemed withdrawn.

Order, 7/11/22, at 1 (emphasis added; formatting modified); see also Pa.R.Crim.P. 121(D) ("When the defendant's waiver of counsel is accepted, standby counsel may be appointed for the defendant. Standby counsel shall attend the proceedings and shall be available to the defendant for consultation and advice.").

On March 2, 2023, the Commonwealth filed a petition to revoke Appellant's probation, claiming she had committed several probation violations. The PCRA court described what next transpired in its opinion:

On March 14, 2023, th[e trial] court conducted an evidentiary hearing^[3] and found that [Appellant] had violated [her] probation by failing to cooperate with the Adult Probation Office of Clinton County and the supervising probation entity in the State of California [(i.e., Appellant's state of residence). Thus, the trial court] granted the [Commonwealth's] petition to revoke probation…. Resentencing in this matter was scheduled for May 9, 2023….^[4]

On May 9, 2023, [Appellant] refused to enter the Sheriff's vehicle for transportation from the Clinton County Correctional Facility [(CCCF or the correctional facility)] to the Clinton County Courthouse; [] therefore, th[e trial] court continued sentencing to May 16, 2023, instructing standby counsel to specifically warn [Appellant that] if [she] did not appear on May 16, 2023, that th[e trial] court intended to sentence [Appellant] in absentia.

PCRA Court Opinion, 3/4/24, at 5-6 (footnotes added; formatting and some capitalization modified).

The May 16, 2023, hearing is of import to the instant appeal. On that date, Appellant again refused transportation from the CCCF and failed to appear at the hearing. At the hearing, the Commonwealth recommended a probation revocation sentence of five to ten years in prison. The prosecutor emphasized Appellant's (a) repeated refusal to attend proceedings; and (b) "supervision history … [and] actions in this case." N.T., 5/16/23, at 2.

At the May 16, 2023, hearing, the trial court considered standby counsel's position in light of Appellant's absence. Id. at 2-3. Standby counsel stated, in relevant part:

To the extent, Your Honor, that I'm stand[]by counsel, but in advocating for [Appellant], I would suggest that Your Honor is certainly very familiar with [Appellant]. … I do believe, in my lay opinion, that she's in need of some sort of counseling or mental health treatment. I don't think [a sentence of] five to 10 years at a State Correctional Facility would be the place that would help [Appellant].

Id. at 3; see also id. at 3-4 (standby counsel requesting that the trial court "take into consideration heavily the mental health issues [that Appellant] has been apparently laboring over for quite some time now that don't appear to have been addressed to date."). The trial court stated it would continue sentencing to May 23, 2023, and again directed standby counsel to advise Appellant of the court's intention to sentence her in absentia if she refused to appear. Id. at 5.

Appellant's resentencing occurred, in absentia, on May 23, 2023. Prior to imposing sentence, the trial court noted that standby counsel, on two occasions, had visited the CCCF but Appellant refused to speak with him. N.T., 5/23/23, at 2. Standby counsel opined, "it appears that [Appellant's] mental health and appreciation for the circumstances has been deteriorating." Id. at 3. The trial court sentenced Appellant to serve 2 to 10 years in prison.^[5] Id. at 11. The court also directed standby counsel to advise Appellant of her appeal rights and provide her with a copy of the sentencing order. Id. at 12-13. Appellant did not timely file post-sentence motions or an appeal.

On September 6, 2023, Appellant filed a pro se, handwritten document titled, "Appeal to Revocation of Probation," which the PCRA court construed as a PCRA petition. See Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) (stating this Court has "repeatedly held that any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition." (citation and ellipses omitted)). The PCRA court appointed Brian W. Ulmer, Esquire (PCRA counsel),^[6] to represent Appellant, directed him to file an amended PCRA petition, and scheduled an evidentiary hearing for January 25, 2024. Order, 9/25/23.

On October 2, 2023, Appellant filed a pro se PCRA petition.^[7] PCRA counsel filed a timely, amended PCRA petition on November 30, 2023, asserting a claim of standby counsel's ineffectiveness. Specifically, the amended petition maintained Appellant

was denied her constitutional rights where stand[]by counsel, by specifically advocating for [Appellant] at a hearing on May 16, 2023, converted himself into counsel for [Appellant] and was subsequently lacking by failing to file either a post-sentence motion for relief and/or an appeal on [Appellant's] behalf, both of which were appropriate[,] … where she received a sentence that was above the aggravated range.

Amended PCRA Petition, 11/30/23, ¶ 13. The Commonwealth filed an answer to the PCRA petition on December 28, 2023.

The PCRA court held an evidentiary hearing on the PCRA petition on January 25, 2024. The PCRA court explained in its opinion that, at this hearing, "[Appellant] did not offer any evidence and indicated [that she] would rely upon the current record. The Commonwealth also did not offer any evidence…." PCRA Court Opinion, 3/4/24, at 7. The PCRA court denied Appellant's PCRA petition on March 4, 2024. This timely appeal followed. Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant presents the following issue for review:

Did error occur in the denial of post-conviction relief where stand[]by counsel, by specifically advocating for Appellant at a hearing on May 16, 2023, converted himself into counsel and subsequently failed to file either a post[-]sentence motion for relief and/or an appeal, both of which were appropriate in a matter where Appellant received a sentence that was above the aggravated range?

Appellant's Brief at 4.

We review the denial of PCRA relief for an error of law or an abuse of discretion. Commonwealth v. Greer, 316 A.3d 623, 631 (Pa. 2024).

We apply a de novo standard of review to the PCRA court's legal conclusions. The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level.

Commonwealth v. Conforti, 303 A.3d 715, 725 (Pa. 2023) (citations and quotation marks omitted); see also Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (stating appellate courts "grant great deference to the factual findings of the PCRA court and will not disturb them unless they have no support in the record." (citation omitted)).

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