United States District Court, W.D. Pennsylvania
JAMES D. DINICOLA, Petitioner,
STEVEN GLUNT, et al., Respondents.
ARTHUR J. SCHWAB, District Judge.
Before this Court is a petition for a writ of habeas corpus filed by Petitioner, James D. Dinicola, pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). After careful consideration, the Court concludes that Petitioner is not entitled to habeas relief. Therefore, his petition is denied. A certificate of appealability also is denied.
On March 11, 2010, Petitioner appeared before the Court of Common Pleas of Erie County and pleaded guilty to charges of rape of a child, sexual intercourse with a child, endangering the welfare of a child, and corruption of minors. The victim in the case was Petitioner's stepdaughter, who was aged 11 and 12 at the time of the offenses. The trial court found Petitioner to be a sexually violated predator ("SVP"). Petitioner impregnated the victim and information in the record states that DNA testing indicated that the probability of Petitioner being the father of the victim's child was 99.999995%. The court sentenced Petitioner to a total aggregate sentence of 21 to 42 ½ years' imprisonment. (SCR No. 29, Commonwealth v. Dinicola, No. 2789-2008, slip op. at 1-2 (C.P. Erie Nov. 15, 2010) ("Dinicola I"); see also SCR No. 28 at 2).
While represented by appointed counsel, Nicole Sloane, Esq., Petitioner filed a timely statement of matters complained of on appeal that raised a single issue: whether the evidence presented was sufficient to sustain the trial court's designation of Petitioner as an SVP. (SCR No. 27). On November 15, 2010, the trial court issued a Memorandum Opinion in which it explained that it had appropriately determined that Petitioner was an SVP and, therefore, his appeal should be dismissed as meritless. (SCR No. 29, Dinicola I, No. 2789-2008, slip op. at 3-12). Thereafter, Petitioner filed a petition with the Superior Court of Pennsylvania to proceed pro se. The Superior Court remanded for the trial court to hold a Grazier hearing, at the end of which the trial court granted Petitioner's request to proceed pro se. (SCR No. 31).
On May 21, 2011, Petitioner filed what he called an "amended" statement of matters complained of on appeal. He contended that the trial court erred in accepting his guilty plea because it "was the result of a violation of the Fourteenth Amendment" since: (1) "the plea colloquy was deficient;" (2) "the plea was induced by threats from counsel;" and (3) "the plea was induced by county officials against his family." (SCR. No. 33).
On December 28, 2011, the Superior Court issued a Judgment Order in which it affirmed the trial court's classification of Petitioner as an SVP. As for the allegations Petitioner raised in his "amended" statement of matters complained of on appeal, the Superior Court concluded that they were "waived as they were not raised within a valid Rule 1925(b) statement." (SCR No. 38, Commonwealth v. Dinicola, Nos. 1457 & 1462 WDA 2010, slip op. at 3 (Pa.Super. Dec. 28, 2011) ("Dinicola II"). To this end, the Superior Court explained:
As previously noted, we remanded this appeal for a Grazier hearing. The trial court granted Dinicola's petition to proceed pro se. Dinicola, acting pro se, did not seek leave to file an amended Rule 1925(b) statement either with this court or with the trial court. An amended or supplemental Rule 1925(b) may only be filed "upon application of the appellant and for good cause shown[.]" Pa.R.A.P, Rule 1925(b)(2), 42 Pa.Cons.Stat.Ann. As Dinicola has never applied for such relief, his amended Rule 1925(b) statement is of no legal consequence and any issues that were not preserved in his prior 1925(b) statement are therefore waived.5
5 Under the circumstances of this case, we decline to find that Dinicola's appellate counsel was ineffective per se pursuant to Rule 1925(c) and Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009) ( en banc ), for failing to raise the issues in Dinicola's amended statement. It is not apparent from the face of the record that there could be no valid strategy designed to effect Dinicola's interests which involved not raising these additional issues.
In June 2012, Petitioner filed a pro se petition for relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.Cons.Stat. § 9541 et seq. (SCR No. 40). The trial court appointed William J. Hathaway, Esquire, to represent him. Attorney Hathaway subsequently filed a "no-merit" letter and a motion to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988), which establish the procedures for withdrawal of court-appointed counsel in a collateral attack of a judgment of sentence when counsel determines that the petitioner is raising or wants to raise issues that are without merit. (SCR No. 42). The court issued an Opinion and Notice of Intent to Dismiss PCRA Without a Hearing Pursuant to Pa.R.Crim.P. 907(1). (SCR No. 43). A "defendant may respond to the [court's] proposed dismissal [of his PCRA petition] within 20 days of the date of the notice." Pa.R.Crim.P. 907(1). Petitioner did not file a response. The court subsequently permitted Hathaway to withdraw and, on July 30, 2012, it denied the PCRA petition. (SCR No. 45).
Petitioner filed a pro se appeal to the Superior Court in which he raised the following seven claims:
1. Whether the Commonwealth violated Appellant's Fifth Amendment right to grand jury presentment, pursuant to the Supremacy Clause Article 6, Clause 2, and the Bill of Rights of the United States Constitution?
2. Whether the trial court erred in its failure to comply with Pa.R.A.P. Rule 1931, resulting in inaccurate, incomplete, and fraudulently certified transcripts, which precluded any type of meaningful review, and violated Appellant's right to due process and equal protection?
3. Whether the [PCRA] court erred in accepting counsel's no merit letter?
4. Whether the trial court erred in accepting Appellant's plea, where the plea colloquy was grossly deficient, resulting in a plea that was unknowingly, unintelligently and involuntarily entered in violation of the Fourteenth Amendment of the United States Constitution?
5. Whether Appellant's guilty plea was in violation of the Fourteenth Amendment where the plea was induced by threats from counsel?
6. Whether Appellant's guilty plea was in violation of the Fourteenth Amendment where the plea was induced by threats against Appellant's family by county officials?
7. Whether all prior counsel rendered ineffective assistance of counsel in violation of the Sixth Amendment?
(SCR No. 49, Commonwealth v. Dinicola, No. 1590 WDA 2012, slip op. at 3-4 (Pa.Super. Aug. 22, 2013) ("Dinicola III") (quoting Brief for Appellant at 3)).
On August 22, 2013, the Superior Court issued a Memorandum in which it affirmed the PCRA court's decision to deny post-conviction relief. (Id. at 3-11). It held that most of Petitioner's claims were waived. The Superior Court held that Claims 1, 4, and 6 were waived because they could have been litigated on direct appeal. (Id. at 5-6) (citing 42 Pa.Cons.Stat. §§ 9543(a)(3), 9544(b)). Because Petitioner represented himself on his direct appeal at his own request and filed a defective "amended" 1925(b) statement, the Superior Court held that "the failure to preserve these issues on direct appeal was not caused by counsel, but rather Appellant's own doing." (Id. at 6). It also held that any contention that Petitioner's direct appeal counsel was ineffective (Claim 7) had no merit because Petitioner proceeded ...