Commonwealth v. Seifert

COMMONWEALTH OF PENNSYLVANIA v. RANDY EDWARD SEIFERT Appellant

No. 760 EDA 2022

No. J-S30029-22

Superior Court of Pennsylvania

December 30, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered February 18, 2022 In the Court of Common Pleas of Wayne County Criminal Division at No(s) CP-64-CR-0000031-2020

Joseph D. Seletyn, Esq.

BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

McCAFFERY, J.:

Randy Edward Seifert (Appellant) appeals, pro se, from the order entered in the Wayne County Court of Common Pleas dismissing his first petition filed pursuant to the Post Conviction Relief Act (PCRA).^[1] Appellant seeks relief from his guilty plea to charges of driving under the influence of alcohol (DUI), recklessly endangering another person (REAP) resisting arrest,^[2] and related offenses as a result of his involvement in a December 2019 motor vehicle crash. On appeal, Appellant argues: (1) he did not receive a prompt hearing following his apprehension on a bench warrant and plea counsel was ineffective for failing to raise this claim; (2) he is entitled to credit for time served as a result of his pretrial detention; and (3) PCRA counsel was ineffective for failing to amend his pro se petition after Appellant discovered new evidence to support his claims. For the reasons below, we affirm.

On December 8, 2019, Appellant was involved in a motor vehicle accident; he was driving the car, and his wife and two minors were passengers.^[3] See Affidavit of Probable Cause, 1/7/20, at 1; Criminal Information, 2/14/20, at 1. When the Pennsylvania State Police arrived, Appellant was visibly intoxicated and combative. See Affidavit of Probable Cause at 1. He was subsequently charged with 24 offenses,^[4] including aggravated assault,^[5] DUI and endangering the welfare of a child.^[6]

On February 4, 2020, a bench warrant was issued for Appellant when he failed to comply with a fingerprint order. He was arrested on February 26th. That same day, the trial court entered an order, setting bail at $50,000 unsecured, and placing Appellant on bail supervision by the Wayne County Adult Probation Department. See Order, 2/26/20.

On July 23, 2020, the Commonwealth filed a petition to revoke bail, asserting, inter alia, that Appellant was no longer checking in with his probation officer, and had been arrested for public drunkenness in a neighboring county. See Commonwealth's Petition to Revoke Bail, 7/23/22, at 1-2 (unpaginated). The trial court conducted a hearing on July 30th and entered an order revoking Appellant's bail that same day.

On August 11, 2020, the Commonwealth filed a petition for a bench warrant. It asserted that although "Wayne County Adult Probation [had] lost contact with [Appellant]," Appellant was "apprehended in Luzerne County" on unrelated charges on August 9th. See Commonwealth's Petition for Bench Warrant, 8/11/20, at 1-2 (unpaginated). The next day, the trial court issued a bench warrant for Appellant's apprehension. See Order, 8/12/20. Although the certified record is not entirely clear, it appears Appellant was released in Luzerne County, and another bench warrant was issued by Luzerne County for his arrest when he failed to appear for a preliminary hearing. See Motion to Withdraw as Counsel, 11/5/21, Exhibit A, Counsel's "No Merit" Letter, at 3. He was subsequently apprehended on September 27, 2020, and remained incarcerated in Luzerne County throughout these proceedings. The Wayne County bench warrant was rescinded on October 15, 2020.^[7]

On November 5, 2020, Appellant entered a guilty plea to one count each of DUI, REAP, resisting arrest, disorderly conduct,^[8] false reports to law enforcement,^[9] and driving while operating privilege is suspended.^[10] In exchange for the plea, the Commonwealth nolle prossed the remaining charges. Appellant appeared for sentencing on January 28, 2021. The court imposed an aggregate term of 24 to 48 months' imprisonment, consisting of the following consecutive terms: 12 to 24 months for REAP, 9 to 18 months for resisting arrest, and 3 to 6 months for DUI. The court also imposed concurrent terms of 6 to 12 months for disorderly conduct, and 60 days for driving under suspension, and a $200 fine for false reports to law enforcement. Appellant filed a timely post-sentence motion requesting reconsideration of his sentence, which the court denied on February 9, 2021. No direct appeal was filed. Appellant was represented by John J. Martin, II, Esquire, throughout these proceedings.

On June 17, July 6, and July 21, 2021, Appellant filed several pro se requests that the court award him credit for time served in pretrial detention ─ specifically, from February 23 to February 25, 2020, and from September 27, 2020, to January 28, 2021. See Appellant's Letter, 6/17/21; Appellant's Letter, 7/6/21; Appellant's Petition for Credit for Imprisonment While in Custody Prior to Sentence, 7/21/21. Thereafter, on August 5, 2021, Appellant filed the present, timely PCRA petition, asserting: (1) he was never "brought before a judge for a Bond Hearing within 72 hours" of his September 27, 2020, arrest on the bench warrant; (2) he was "incarcerated indefinitely" from September 27, 2020, to January 28, 2021, and did not receive credit for time served; and (3) he was never informed why his bail was revoked. See Appellant's Motion for Post Conviction Relief, 8/5/21, at 3-4. Appellant averred Attorney Martin was ineffective for failing to raise these claims before the trial court. See id. at 4. Less than a week later, on August 10th, the PCRA court appointed Christine Rechner, Esquire, as PCRA counsel. Meanwhile, Appellant continued to file redundant pro se requests seeking credit for time served, as well as a pro se motion to reduce his sentence. See Appellant's Motion to Modify and Reduce Sentence, 10/20/21.

On November 5, 2021, Attorney Rechner filed a motion to withdraw as counsel, and a Turner/Finley^[11] "no merit" letter, explaining why she believed Appellant's claims were meritless. See Motion to Withdraw as Counsel, 11/5/21, Exhibit A, Counsel's "No Merit" Letter. Attorney Rechner detailed her investigation of Appellant's claims, which included reviewing Appellant's criminal docket in Luzerne County and interviewing Attorney Martin. See Counsel's "No Merit" Letter at 2. She concluded: (1) Appellant was not entitled to time served credit in the present case for his pretrial detention in Luzerne County because he was in custody for Luzerne County charges; (2) Appellant's bail hearing was not unreasonably delayed because the records from the probation department "contained no information as to the day Wayne County officials were notified of" Appellant's September 27th Luzerne County arrest; and (3) Attorney Martin was not ineffective for failing to raise these claims. See id. at 4-5. Appellant filed a pro se response on November 30th, stating, inter alia, that he had proof Wayne County was promptly notified of his arrest in Luzerne County, namely, a September 29, 2020, Facebook posting of his "capture" by the Wayne County Sheriff's Department. See Appellant's Letter, 11/30/21, at 2 (unpaginated). Thus, he insisted "[t]here was a delay or failure by [Attorney Martin] to act in regards [sic] to the Wayne County Bench Warrant, issued . . . August 12, 2020." Id.

On December 6, 2021, the PCRA court entered an order advising Appellant of its intent to dismiss his petition pursuant to Pa.R.Crim.P. 907 and granting Attorney Rechner's motion to withdraw. See Order, 12/6/21. Appellant filed a pro se response, and on January 4, 2022, the PCRA court dismissed Appellant's petition. See Order, 1/4/22.

However, one week later, the PCRA court vacated both its December 6th and January 4th orders, and reinstated Attorney Rechner as PCRA counsel. Order, 1/11/22. Shortly thereafter, on January 21st, the PCRA court issued new notice of its intent to dismiss Appellant's petition pursuant to Rule 907, but included an opinion detailing its bases for doing so. See Opinion, Order, & Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907, 1/21/22 (PCRA Ct. Op.). The court agreed with Attorney Rechner's assessment of Appellant's claims, opining that Appellant was not entitled to credit for time served in Luzerne County prior to his Wayne County guilty plea and sentencing hearing, and that Attorney Martin was not ineffective for failing "to act with respect to the Wayne County bench warrant and the hearing required on its dismissal." See PCRA Ct. Op. at 3-5. By separate order, the PCRA court, once again, granted Attorney Rechner's motion to withdraw. See Order 1/21/22. Appellant filed an untimely response, asserting Attorney Rechner's ineffectiveness for failing to speak with him after her appointment as counsel. See Appellant's Answer to Pa.R.Crim.P. 907, 2/15/22, at 2.^[12]

On February 18, 2022, the PCRA court entered an order dismissing Appellant's petition, and Appellant filed this timely appeal. Thereafter, the trial court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Order, 3/31/22.^[13] Appellant complied with the court's directive, and filed a Rule 1925(b) statement raising the following claims: (1) the ineffective assistance of Attorney Martin and Attorney Rechner for "not challenging the bench warrant" so that the court could "have given [him] an opportunity to make bail[;]" (2) newly discovered evidence, which proved that Attorney Rechner was ineffective for rejecting his bench warrant claim; and (3) Attorney Martin's ineffectiveness for failing to request Appellant receive credit for time served at sentencing. Appellant's Pa.R.A.P. 1925(b) Concise Statement of Matters Complained Of, 4/20...