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[U] Commonwealth v. Duzicky

Superior Court of Pennsylvania

February 20, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN A. DUZICKY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order May 30, 2013, Court of Common Pleas, Beaver County, Criminal Division at No. CP-04-CR-0002004-2009

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and PLATT [*], JJ.

MEMORANDUM

DONOHUE, J.

Appellant, John A. Duzicky ("Duzicky"), appeals from the order dated May 30, 2013 dismissing his amended petition for relief pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. For the reasons set forth herein, we conclude that Duzicky did not satisfy the requisite elements of a claim for ineffectiveness of counsel, and we therefore affirm the trial court's order.

On December 10, 2010, Duzicky entered open pleas of guilt, without any sentence recommendation from the Commonwealth, on two counts of corrupt organizations, 18 Pa.C.S.A. § 911(b)(3) and (b)(4); four counts each of delivery of marijuana and possession with intent to deliver marijuana exceeding 100 pounds, 35 P.S. § 780-113(a)(3); and two counts of attempt to commit delivery and/or possession with intent to deliver marijuana exceeding 100 pounds, 18 Pa.C.S.A. § 901(a).

On July 6, 2011, the trial court sentenced Duzicky to an aggregate term of imprisonment of not less than six years nor more than twelve years. The trial court also ordered Duzicky to pay fines of $250, 000 and make restitution to the Pennsylvania Office of the Attorney General, Bureau of Narcotics Investigation and Drug Control in the amount of $21, 705. The record remained open for a period of 30 days following sentencing so that plea counsel could receive confirming documentation regarding the amount of restitution from the deputy attorney general. Plea counsel did not file a post-sentence motion or direct appeal from the judgment of sentence.

On March 5, 2012, Duzicky filed a pro se Motion for PCRA Relief. On October 1, 2012, appointed counsel filed an amended PCRA petition, in which Duzicky claimed that his plea counsel, Attorney William Difenderfer ("Attorney Difenderfer"), was ineffective for failing to consult with him (Duzicky) following the judgment of sentence regarding the filing of a direct appeal. According to Duzicky, Attorney Difenderfer's ineffectiveness resulted in a loss of his appellate rights.

On December 21, 2012, the PCRA court held an evidentiary hearing. At the conclusion of the hearing, the PCRA court dismissed Duzicky's petition, concluding that Duzicky did not request an appeal, gave no indication that he wanted to file an appeal, and failed to show actual prejudice. Trial Court Opinion, 05/30/13, at 16. This appeal followed, in which Duzicky raises the following two issues for our determination:

1. Whether prior plea counsel was ineffective when prior plea counsel failed to consult with the defendant with regard to filing an appeal from the sentence imposed?
2. Whether there was actual prejudice to the defendant when prior plea counsel failed to consult with the defendant following sentencing which resulted in the loss of the defendant's appeal?

Duzicky's Brief at 7.

Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's findings of fact, and whether the PCRA court's determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005)), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012). A PCRA petitioner must establish the claim by a preponderance of the evidence. Commonwealth v. Gibson, 592 Pa. 411, 415, 925 A.2d 167, 169 (2007). Credibility determinations made by the PCRA court are binding on this Court where there is support in the record for the determination. Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (citing Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).

The test for ineffectiveness of counsel requires the petitioner to meet a three-prong test: (1) underlying the petitioner's allegation of ineffectiveness, there is a legal claim of arguable merit; (2) petitioner's counsel had no reasonable strategic basis for proceeding as he did; and (3) the petitioner was prejudiced by counsel's ineffectiveness. Commonwealth v. Clark, 599 Pa. 204, 213, 961 A.2d 80, 85 ...


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