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[U] Commonwealth v. Troutman

Superior Court of Pennsylvania

February 25, 2014



Appeal from the PCRA Order of January 24, 2013 In the Court of Common Pleas of Montgomery County Criminal Division at No.: CP-46-CR-0003674-2011

Appeal from the PCRA Order of January 25, 2013 In the Court of Common Pleas of Montgomery County Criminal Division at No.: CP-46-CR-0003674-2011




James Lee Troutman ("Appellant") appeals the PCRA court's orders dated January 24 and 25, 2013. The orders in question respectively denied Appellant's timely first petition under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541, et seq., and his subsequent self-styled amended PCRA petition.[1] We affirm both orders.

The trial court set forth the factual and procedural history of this case as follows:

Appellant first appeals from the Final Order of Dismissal dated January 25, 20131, dismissing his petition for post[-]conviction relief filed under the [PCRA]. The dismissal of Appellant's PCRA petition was based on counsel's no-merit letter submitted in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988), and this Court's independent review of the record.
1[Superior Court docket number 958 EDA 2013.]
Also, Appellant appeals from an Order dated January 24, 2013 2, dismissing an amended PCRA petition, which he was not granted leave to file.
2Superior Court docket number 827 EDA 2013.
Affidavit of Probable Cause
Appellant agreed to the facts as set forth in the Affidavit of Probable Cause. [(Negotiated Guilty Plea, 3/19/12, p. 23).] On May 9, 2011, at 7:11 p.m., the Souderton Borough Police Department responded to the Souderton Garden Apartments located at 203 East Chestnut Street, Souderton Borough, Montgomery County, for the report of a missing child. The child was identified as 9[-]year-old [S.K.], who was last seen by family members at approximately 5:00 p.m. [S.K.'s] mother told police that [S.K.] was wearing black pants, a yellow t-shirt and Ugg clogs.
Additional police arrived at the scene, and a search of the apartment building and surrounding area was conducted. While on location, Officer James Throop of the Souderton Police Department was approached by Waldamar Rios. Mr. Rios explained to the officer that he had discovered blood in the common basement of the apartment building. Rios led the officer to the common basement, which serves apartment numbers 33 through 36. Immediately upon entering the basement, Officer Throop observed a large pool of blood on the floor and suspected blood spatter on a nearby water heater. The officer also found a grey and tan colored clog, Ugg brand, lying on the basement floor.
Detective Edward Schikel of the Montgomery County Detective Bureau was investigating the scene when he encountered Appellant, a resident of the apartment complex. The detective observed what he believed to be blood on Appellant's right sneaker. Appellant relayed a story to Detective Schikel that occurred two weeks prior when he allowed two little girls inside his apartment to use his bathroom. According to Appellant, one of the little girls accidently locked herself in the bathroom. The girl panicked and started yelling and causing a commotion. The police were called. Detective Schikel advised Appellant that he was only interested in the current incident and asked him whether he saw anything that night. Appellant did not answer the detective's question. Rather, Appellant relayed a story about going to a football filed [sic], doing exercises, getting really dirty and muddy, coming home and showering and changing. Detective Schikel asked Appellant if he would be willing to assist the police in the investigation, and he agreed.
Detective Schikel went to Appellant's residence, apartment 33, and knocked on the door. Appellant's fiancé, Heather Clemens, answered, "come in." Ms. Clemens consented to a search of the apartment for the missing girl. During the search, the detective observed exercise style clothing in the master bedroom closet, which appeared to be extremely saturated with blood. Ms. Clemens agreed to assist in the investigation for [S.K.].
In the interim, Detective George Moyer of the Franconia Township Police Department was searching the surrounding area for additional evidence. At about 11:55 p.m., Detective Moyer searched the dumpster located behind the apartment complex. In the dumpster, the Detective Moyer uncovered a bloody multicolored, plaid striped comforter containing [S.K.'s] dead body.
On May 10, 2011, at approximately 12:43 a.m., Montgomery County Detectives Tedescung Bandy and James Carbo interviewed Ms. Clemens. She told the detectives that Appellant left the apartment around 5:00 p.m. the day before, May 9th, to play on his cell phone outside. Ms. Clemens told detectives that at about 5:45 p.m. she heard a female voice screaming loudly. The female voice said "no" once or twice and it was "long and drawn out when she said no, like noooooo! while she was still crying." Ms. Clemens also heard crashing sounds, like someone was being thrown to the ground. According to Ms. Clemens these noises lasted about three or four minutes. Ms. Clemens attempted to call Appellant, but got his voicemail. Appellant called back about five minutes later. Ms. Clemens further told detectives that when Appellant arrived back at the apartment about 15 to 20 minutes after their telephone conversation, he appeared dirty and sweaty and had "caked-on mud" on the front of his body, shirt, shorts, knees, shins and socks. Upon his return Appellant changed his clothes and put them in the hamper, took a shower and ate dinner.
Appellant was interviewed by Montgomery County Detective Christopher Kuklentz and Souderton Borough Police Detective Joseph Rudner. During the interview, Appellant admitted speaking to [S.K.] a little after 5:00 p.m. on May 9th, but denied involvement in her murder. Appellant stated that the blood on his clothes was from an earlier nosebleed. Later in the interview, Appellant admitted that he choked [S.K.] to death with his hands and that her head hit the floor at least a couple of times. Appellant explained that he walked [S.K.] into the common basement and while they were there he "snapped" and that "it was like a white out." Appellant admitted that he wrapped [S.K.'s] dead body in a blanket and got rid of her in the dumpster. When asked why he murdered [S.K.], Appellant told detectives that he knew that once he took her down the basement she could get him in trouble.
On May 10, 2011, an autopsy was performed on [S.K.'s] body. The autopsy determined that [S.K.] died from asphyxia and blunt force trauma, and that the manner of death was homicide. In addition the autopsy revealed that [S.K.] suffered significant vaginal trauma.
Appellant was arrested and charged with murder in the first degree, kidnapping, rape of a child with serious bodily injury and other related offenses.
Negotiated Guilty Plea Hearing
On March 19, 2012, Appellant agreed to enter a guilty plea to the charges of murder in the first degree, involuntary deviate sexual intercourse with a child, kidnapping and abuse of a corpse, and to be sentenced to a life term without the possibility of parole, followed by a 10 to 20[-]year term of imprisonment, in exchange for the Commonwealth's withdrawal of its intent to seek the death penalty.4
4 On July 20, 2011, the Commonwealth filed a notice of intent to seek the death penalty.
There was an extensive oral colloquy in addition to two written guilty plea colloquies which were reviewed and signed by Appellant. At the time that Appellant pleaded guilty, he was a 25 year-old man, with a high-school degree. (Negotiated Guilty Plea 3/19/12 p. 9). In response to questioning by guilty plea counsel, W. Craig Penglase, Appellant affirmed his understanding that he was there to plead guilty to all of the charges as outlined by the District Attorney and that he understood the proceedings in general. Id. at 5-6. Appellant acknowledged that he and Mr. Penglase spent significant time discussing the rights, duties and obligations that he was relinquishing by pleading guilty. Id. Upon questioning, Appellant also acknowledged that he thoroughly reviewed two written guilty plea colloquies with Mr. Penglase. Id. at 7-9.
During the extensive colloquy, Appellant told this Court that he and Mr. Penglase reviewed all of the offenses he was charged with and that Mr. Penglase explained to him what all of those charges were as well as the elements of each of those offenses. Id. at 10. Appellant represented to this Court that Mr. Penglase read for him an agreement as to the facts of the case which constituted the charges to which he would be pleading guilty and that he agreed that the summarization of those facts was true and accurate. Id. Appellant admitted that his attorney explained to him all of the things that a person must have done to be guilty of the crimes to which he is pleading guilty, and admitted that he had done all of the things a person must have done to be guilty of the crimes to which he is pleading guilty. Exhibit "D-1", Guilty Plea Colloquy, at 3. Appellant told this Court that he is in fact guilty. (Negotiated Guilty Plea 3/19/12 pp. 13-14).
Mr. Penglase asked Appellant pertinent questions about his mental health. Appellant affirmed that in the past he had received mental health treatment at various facilities, and that his last such treatment had been some time ago. Id. at 6. Appellant admitted that he was not currently under the care of a psychiatrist or taking medication for any mental health issue. Id. Appellant assured this Court that he was not under the influence of any substance that would inhibit his understanding of the guilty plea proceedings. Id.
In addition to the oral colloquy regarding Appellant's mental health, the two written colloquies also addressed issues surrounding Appellant's mental health, both of which were signed and dated by Appellant. Therein, Appellant denied being currently treated for a mental illness. See, Exhibit D-1, Guilty Plea Colloquy, p. 2. Appellant also checked off "yes", admitting that he was clear-headed and could understand the written colloquy. See, Exhibit D-2, Guilty Plea Colloquy, p. 1. Although Appellant acknowledged that he has a history of mental illness, he denied that he was currently taking any medication that could interfere with his ability to understand the proceedings or the colloquy itself. Id.
Later on during the oral colloquy the District Attorney revisited the issue of Appellant's mental health. The District Attorney wanted to make clear that although through Appellant's juvenile years he was in and out of a number of different facilities, his last mental health treatment took place on 2005, at the time Appellant was 17 years old, and that from the time Appellant was 18 until the [time of the colloquy, ] at which time he was 25 years old he had not undergone mental health treatment. (Negotiated Guilty Plea 3/19/12 pp. 24-25). Appellant reaffirmed that at he was thinking clearly at the guilty plea proceedings and that the decision to plead guilty was a voluntary decision he made in consultation with his attorneys. Id. at 25.
The Court then asked Appellant whether he was satisfied with the representation of his two attorneys, that he understood their advice and agreed to follow it. Appellant said "[a]bsolutely." Id. at 14. This Court then proceeded to explain the legal concept of murder and malice. Id. at 17. Appellant had no questions of this Court or for either of his attorneys. Id.
The District Attorney proceeded to outline all of the other charges Appellant was pleading guilty to and explained the elements of each offense as well as the factual basis to support each offense. Id. at 19-23. In addition, the District Attorney explained to Appellant the maximum sentences for each of those offenses as well as the negotiated sentence to which Appellant was agreeing to [sic]. Id. at 23. Further, the District Attorney laid out a summary of facts. Id. at 23-24. Finally, the District Attorney asked Appellant if he was satisfied with his attorneys' representation, to which Appellant responded in the affirmative. Id. at 25.
This Court accepted Appellant's guilty plea [as] voluntarily, intelligently and knowingly entered. Id. at 27.
Appellant did not file a direct appeal.
PCRA Petition
On September 21, 2012, Appellant filed a timely pro se PCRA petition. In his pro se petition, Appellant alleged the ineffectiveness of trial counsel for failing to file a direct appeal, for allowing him to enter a guilty plea without a legally sufficient factual basis and for failing to seek the suppression of his statements to police. Appellant also alleged that he is actually innocent of the crimes for which he pled guilty and that his guilty plea was not knowingly, voluntarily or intelligently entered.
On October 1, 2012, the Office of the Montgomery County Public Defender was appointed to represent Appellant in connection with his PCRA petition. On November 9, 2012, PCRA counsel determined that all issues lacked merit and submitted a no-merit letter, seeking to withdraw. Appellant filed an opposition to counsel's withdrawal request on November 23, 2012. Subsequently on December 6, 2012, and in accordance with Pa.R.Crim.P. 907, a Twenty[-]Day Dismissal Notice was issued [by the PCRA court], in which Appellant was notified of the proposed dismissal and of his right to file a response.
Appellant did respond to the proposed dismissal by filing a motion for leave to amend PCRA petition under Pa.R.Crim.P. 905 on January 14, 2013. Therein, he requested a copy of the guilty plea notes of testimony so he [could] file an amended petition. Without having been granted leave to file an amended petition, Appellant filed one anyway on January 22, 2013. In this improperly filed amended petition Appellant asserted that trial counsel was ineffective in failing to pursue an insanity defense rather than advising Appellant to plead guilty, that [Appellant] was incompetent to enter a guilty plea due to his mental illness, and that he is actually innocent of the charges and would be exonerated through DNA evidence analysis. On January 23, 2013, Appellant was denied leave to amend his PCRA petition and on January 24, 2013, Appellant's improperly filed amended PCRA petition was dismissed. The January 24, 2013 Order is currently the subject of this appeal. Finally, on January 25, 2013, the Final Order of Dismissal was issued, dismissing Appellant's PCRA petition without a hearing. The January 25, 2013 Order is also at issue in this appeal. Appellant filed these timely pro se appeals of both Orders.

PCRA Court Opinion ("P.C.O."), 4/8/2013, at 1-10 (footnote omitted; typographical revisions for clarity). Appellant filed a timely notice of appeal on February 11, 2013. The PCRA court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely filed his statement.[2] The PCRA court then filed its above-quoted Rule 1925(a) opinion on April 8, 2013.

Appellant raises the following issues before this Court:

I. Whether the lower court erred when it failed or neglected to serve the Appellant with a Rule 907 notice of its intentions to dismiss the PCRA petition, and the amended PCRA petition was wrongly denied?
II. Whether the Appellant was denied his 6th Amendment [r]ight to effective assistance of counsel when counsel failed to request a competency hearing following the psychiatric evaluation?
III. Whether the Appellant was denied due process of law when the court failed to hold a competency hearing sua sponte prior to accepting the guilty pleas?
IV. Whether the Appellant was denied the right to counsel at the psychiatric evaluation?
V. Whether the Appellant was denied due process of law when the court failed to make a competency determination of the Appellant within 20 days after the receipt of the report of the examination?
VI. Whether the Appellant was denied effective assistance of counsel when counsel instructed, advised, and persuaded the Appellant to plead guilty instead of pursuing an insanity defense?
VII. Whether the Appellant's guilty pleas were involuntarily entered due to his mental illness, and he is actually innocent of the charges that he pled guilty to?
VIII. Whether the Appellant was mentally competent to enter guilty pleas on March 19, 2012?
IX. Whether the Appellant's guilty pleas were involuntarily entered as a result of ineffective assistance of counsel?

Brief for Appellant at 6.

At issue are the PCRA court's orders denying PCRA relief. "In PCRA proceedings, an appellate court's scope of review is limited by the PCRA's parameters; since most PCRA appeals involve mixed questions of fact and law, the standard of review is whether the PCRA court's findings are supported by the record and free of legal error." Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009).

The PCRA court made quick work of all claims except Appellant's challenges to the effectiveness of plea counsel and the voluntariness of his plea. Specifically, the court found that, under Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super. 2012), it was bound to treat Appellant's putative amended PCRA petition, which was filed without leave of court, as a response in opposition to the PCRA court's Rule 907 notice of intent to dismiss regarding Appellant's first PCRA petition. P.C.O. at 12-13. As such, the amended petition was not a distinct second or subsequent petition under the PCRA, and not subject to the various restrictions that apply to such a petition. Id. However, as a response in opposition rather than a second petition, Rykard precluded Appellant from raising any issues not raised in the first petition, with the exception that Appellant could use a Rule 907 response to raise challenges to the effectiveness of PCRA counsel. Id.; see Rykard, 55 A.3d at 1192 ("While Appellant was explicitly instructed that he could respond [in the Rule 907 notice], and by law is authorized to file a response to the court's pre-dismissal notice, both [Commonwealth v. Williams, 732 A.2d 1167, 1191 (Pa. 1999)], and Pa.R.Crim.P. 905, suggest that in order to properly aver a new non-PCRA counsel ineffectiveness claim, the petitioner must seek leave to amend his petition.").[3]

Under Rykard, the PCRA court further observed, Appellant was free to seek leave to amend his first petition. If granted such leave by the court, Appellant then would be free to raise issues missing from his pre-amendment petition. P.C.O. at 12. However, such leave must be granted first, and no putative amendment filed without such leave is cognizable. Here, although Appellant sought leave to amend, he filed his amended petition before the PCRA court ruled on that motion. Thereafter, the PCRA court expressly denied Appellant's petition for leave.

In this case, Appellant in his putative amended petition did not challenge PCRA counsel's stewardship expressly. However, Appellant did seek to raise issues absent from his first petition. Specifically, he asserted a range of novel issues, corresponding to those numbered II through V (inclusive) before this Court, pertaining to issues surrounding his mental competency at the time that he entered into his guilty plea. The PCRA court determined that these issues were waived because they were absent from Appellant's first petition, and because the court had not granted Appellant leave to amend that petition. P.C.O. AT 13-14.

In a related ruling, the PCRA court rejected Appellant's first issue, concerning his entitlement to a Rule 907 notice of intent to dismiss his first petition. The PCRA court noted that transmission of the notice to Appellant's prison address was well-documented and docketed, and that it had been sent to the same address as many other documents that had reached Appellant without incident. P.C.O. at 12-13.[4]

Finally, the PCRA court considered at length Appellant's issues VI through VIII, and rejected them based upon the strength and thoroughness of the oral and two written guilty plea colloquies. Therein, the record confirms that Appellant unequivocally acknowledged all relevant sacrifices of his constitutional rights that were associated with pleading guilty, and signaled his satisfaction with the stewardship of counsel in connection with the plea bargaining process. We find that the PCRA court's detailed analysis of these issues, see P.C.O. at 14-20, is supported by the record and is free of legal error. Accordingly, we adopt the PCRA court's reasoning as our own, and we affirm. A copy of the PCRA court's Rule 1925(a) opinion is attached hereto for reference.

Order affirmed.

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