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[U] Commonwealth v. Gunter

Superior Court of Pennsylvania

November 20, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CLARENCE LEE GUNTER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order Entered January 2, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000288-2010

BEFORE: BENDER, P.J., GANTMAN, J., and OLSON, J.

MEMORANDUM

BENDER, P.J.

Appellant, Clarence Lee Gunter, appeals pro se from the trial court's order, entered January 2, 2013, denying his petition for relief filed pursuant to Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

Appellant was arrested and charged with fifteen counts of various offenses after he raped and sexually assaulted a mentally handicapped woman. His identity as the perpetrator of those crimes was confirmed by DNA evidence. See N.T. Guilty Plea Hearing, 8/26/10, at 34-38. On August 26, 2010, Appellant entered a negotiated plea agreement with the Commonwealth, pursuant to which he pled guilty to offenses including sexual assault, aggravated indecent assault, and indecent exposure. In exchange, the Commonwealth withdrew many of the charges pending against him. The Commonwealth also agreed to a sentence of five to ten years' imprisonment for Appellant's crime of sexual assault, with no further penalty for his remaining convictions. After a thorough colloquy, the trial court accepted the plea agreement and sentenced Appellant to the negotiated term. He did not file a direct appeal.

On January 3, 2011, Appellant filed a pro se PCRA petition. Counsel was appointed, but subsequently sought to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). The PCRA court granted that motion and dismissed Appellant's PCRA petition without a hearing. Appellant filed a timely notice of appeal, and a panel of this Court affirmed. Commonwealth v. Gunter, 50 A.3d 244 (Pa.Super. 2012) (unpublished memorandum). Appellant did not petition for permission to appeal to our Supreme Court.

On October 5, 2012, Appellant filed a pro se document purporting to be a PCRA petition. However, that filing did not present any claims; instead, it merely set forth a request for permission to file a PCRA petition. The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss this 'petition.' Thereafter, on October 30, 2012, Appellant filed a pro se document entitled "Petitioners Objections to the Court's Notice With The Intent to Dismiss." In that document, Appellant claimed that his guilty plea was invalid and his plea counsel rendered ineffective representation. He further asserted that his initial PCRA counsel was ineffective for seeking to withdraw rather than raising these claims. That same day, October 30, 2012, Appellant filed another pro se PCRA petition presenting the same arguments as posited in his response to the court's Rule 907 notice. On November 16, 2012, the PCRA court issued another Rule 907 notice of its intent to dismiss Appellant's petition.[1] Despite Appellant's filing multiple other pro se documents in response, the court issued an order dismissing Appellant's petition as untimely.[2]

Appellant filed a timely pro se notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he raises five issues for our review, reproduced verbatim:

1. Whether Appellant's guilty plea was unlawfully induced by ineffective trial counsel and trial judge, and both trial and PCRA counsel were ineffective?
2. Whether trial counsel was ineffective for failure to substantiate victim's mental abilities related to the allegations, and Appellant's mental deficiencies related to his ability to enter into a knowingly, voluntarily and intelligently made plea of guilty to charges he did not commit?
3. Whether PCRA counsel was ineffective for failure to raise ineffectiveness of trial counsel who led Appellant into entering a guilty plea that was not knowingly, voluntarily and intelligently made?
4. Whether PCRA counsel committed fraud on the court by receiving money to represent Appellant and then abandoning him without working on Appellant's case?
5. Whether PCRA counsel's refusal to comply with the January 9, 2012 order to produce records so Appellant could perfect his appeal constitutes a Brady[3] ...

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