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[U] Commonwealth v. Deneau

Superior Court of Pennsylvania

July 16, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
NATHAN HOWARD DENEAU, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
NATHAN HOWARD DENEAU, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order September 18, 2012, Court of Common Pleas, Franklin County, Criminal Division at Nos. CP-28-CR-0000852-2009, CP-28-CR-0000853-2009

BEFORE DONOHUE, WECHT and COLVILLE, [*] JJ.

MEMORANDUM

DONOHUE, J.

Nathan Howard Deneau ("Deneau") appeals pro se from the order of court dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546, and permitting his court-appointed counsel to withdraw. For the following reasons, we affirm.

In 2010, Deneau was convicted of two counts of robbery, one count of theft by unlawful taking, and one count of attempted theft. These convictions arose in connection with Deneau's robbery of a Sheetz convenience store on April 21 and 22, 2009. This Court affirmed Deneau's judgment of sentence on April 15, 2011.

On December 19, 2011, Deneau filed a pro se PCRA petition. Counsel was appointed, but rather than filing an amended PCRA petition, Deneau's counsel filed a Turner/Finley petition seeking permission to withdraw. On July 31, 2012, the PCRA court provided notice of its intent to dismiss the PCRA petition pursuant to Pa.R.Crim.P. 907 and granted counsel's request to withdraw. Deneau did not respond to the Rule 907 notice, and on September 18, 2012, the PCRA court dismissed Deneau's PCRA petition. Deneau timely filed his notice of appeal pro se, and on October 5, 2012, the PCRA court ordered Deneau to file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal ("Rule 1925(b) statement") within 21 days.[1]Deneau never filed a 1925(b) statement of record; instead, he only forwarded it to the judge presiding over his PCRA proceedings, the Honorable Shawn D. Meyers, directly.

"If an appellant does not comply with an order to file a Rule 1925(b) statement, all issues on appeal are waived—even if the Rule 1925(b) statement was served on the trial judge who subsequently addressed in an opinion the issues raised in the Rule 1925(b) statement." In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007) (citing Commonwealth v. Schofield, 585 Pa. 389, 393-94, 888 A.2d 771, 773-74 (2005)). Thus, as Deneau did not file his Rule 1925(b) statement of record but only sent it to Judge Meyers, we are compelled to find that Deneau has waived all issues for purposes of appeal.

Even if we were not to reach this conclusion, we would still find that Deneau is not entitled to relief. In his brief, Deneau presents the claim that the evidence was insufficient to support his conviction for the robbery that occurred on April 22, 2009. Appellant's Brief at 9-14. To be eligible for PCRA relief, a petitioner must establish that his conviction or sentence resulted from one or more of enumerated errors or defects found in the PCRA and that the issues have not been previously litigated. Commonwealth v. Appel, 547 Pa. 171, 185-86, 689 A.2d 891, 899 (1997); see also 42 Pa.C.S.A. § 9543(a)(2)-(3). Assuming that the claim that Deneau seeks to raise is cognizable under the PCRA, he could not prove that this claim has not been previously litigated, as Deneau raised this exact claim on direct appeal. See Commonwealth v. Deneau, 26 A.3d 1181 (Pa. Super. 2011) (unpublished memorandum).

Deneau also presents a one paragraph argument that appears to raise the claim that his trial counsel was ineffective with regard to a plea bargain. Deneau did not raise this claim in his PCRA petition or in response to the PCRA court's Rule 907 notice, and so it has been waived for purposes of appeal. See Commonwealth v. Jones, 500 Pa. 202, 212, 912 A.2d 268, 278 (2006) (holding that an issue is waived on appeal where it was not raised before the PCRA court).

Order affirmed.


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