J-S20042-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THEOPHILUS L. BALDWIN : : Appellant : No. 1691 MDA 2023 Appeal from the PCRA Order Entered November 13, 2023 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000686-2015

BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.* MEMORANDUM BY STEVENS, P.J.E.: FILED: JULY 22, 2024 Theophilus L. Baldwin appeals from the November 13, 2023 order dismissing his second amended petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The PCRA court summarized the relevant facts and procedural history of this case as follows: Following the issuance of a presentment by the Thirty- Sixth Statewide Investigating Grand Jury, on January 29, 2014, the Commonwealth filed a criminal complaint charging [Appellant] with several violations of the Controlled Substance, Drug, Device, and Cosmetic Act (Drug Act) [and] Criminal Use of a Communication Facility. On February 19, 2014, after a preliminary hearing, the charges were held for court. ____________________________________________

* Former Justice specially assigned to the Superior Court.

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On March 5, 2014, an Information was filed. On June 20, 2014, [Appellant] filed an omnibus pretrial motion which included a motion to sever. On August 19, 2014, the Court issued an order granting the severance motion.

On November 3-4, 2014, a jury trial was held. [Appellant] was found guilty of counts one, two, three, and six. The trial court entered a nolle prosequi as to counts four and five. On December 18, 2014, [Appellant] was sentenced to an aggregate term of incarceration in a state correctional facility of ten to twenty years. On December 29, 2014, [Appellant] filed a post-sentence motion seeking modification of the sentence imposed to allow Recidivism Risk Reduction Incentive (RRRI) eligibility. On January 27, 2015, after a hearing, the trial court granted the post- sentence motion and issued an amended sentencing order. On February 24, 2015, [Appellant] filed a timely notice of appeal.

On appeal, [Appellant] challenged the sufficiency of the evidence, one of the Court’s jury instructions, an evidentiary ruling; and the discretionary aspects of his sentence. On March 1, 2016, the Superior Court of Pennsylvania affirmed [Appellant’s] judgment of sentence. [Appellant] did not seek allowance of appeal to the Supreme Court of Pennsylvania.[1] On March 31, 2015, the Commonwealth filed a motion to assign a new docket number to effectuate the Court’s August 19, 2014 severance order. On April 6, 2015, the Court granted the Commonwealth’s motion, and the instant docket was generated. On May 28, 2015, [Appellant] filed a motion to dismiss, alleging the Court lacked jurisdiction to proceed. An amended motion to dismiss was filed on July 1, 2015. On July 21, 2015, the Court issued an order denying the motion to dismiss. On July 24, 2015, [Appellant] filed a motion seeking amendment of the Court’s order to ____________________________________________

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permit the filing of an interlocutory appeal by permission and a motion to stay the proceedings pending the filing of a petition for permission to appeal[.] On August 19, 2015, the Court denied the motion to stay.

On September 24, 2015, [Appellant] entered guilty pleas to Delivery of a Controlled Substance, Criminal Conspiracy, and Criminal Use of a Communication Facility. On that date, [Appellant] was sentenced to serve three to six years of incarceration in a state correctional facility. This term of incarceration was ordered to be served consecutive to the term of incarceration imposed at docket number 302-2014[.]

On October 6, 2015, [Appellant] filed a post-sentence motion seeking credit for time-served. On October 15, 2015, the Court issued an order granting [Appellant’s] post-sentence motion in part which the Court amended on November 17, 2015. [Appellant] did not file a notice of appeal.

On March 10, 2016, [Appellant] filed a pro se PCRA petition. On June 20, 2016, [Appellant] filed a counseled amended PCRA petition challenging the trial court’s jurisdiction over the matter and alleging trial counsel was ineffective for, inter alia, advising [Appellant] not to appeal his judgment of sentence.

On September 19, 2016, the Commonwealth answered the amended petition. An evidentiary hearing was held on January 20, 2017. On March 23, 2017, this Court granted [Appellant’s] petition, in part, reinstating his direct appeal rights.

On April 20, 2017, filed a notice of appeal nunc pro tunc. On appeal, [Appellant] alleged that this Court lacked jurisdiction to accept his guilty plea and “the Commonwealth was barred from prosecuting [him] on any non-severed counts that could have been tried together at his jury trial” at docket number 302-2014.

On December 20, 2017, the Superior Court affirmed [Appellant’s] judgment of sentence, finding that this Court did have jurisdiction to assign a new docket number for the severed counts and that the -3- J-S20042-24

Commonwealth was not barred from filing an amended information and proceeding on the charges in this case following completion of his case at docket 302-2014[.][2] On October 9, 2018, Baldwin filed a pro se PCRA petition. On November 13, 2018, the Court appointed Ronald McGlaughlin, Esquire to represent [Appellant].

On June 14, 2019, [Appellant] filed a counseled amended PCRA petition. On June 15, 2022, [Appellant] filed a second amended PCRA petition.

This Court held an evidentiary hearing on May 2, 2023 and has since received briefs on the issues.

PCRA court opinion, 11/13/23 at 1-4 (citation omitted; footnotes added).

Following the May 2, 2023 evidentiary hearing, the PCRA court entered an opinion and order on November 13, 2023 dismissing Appellant’s second amended petition with prejudice. This timely appeal followed on December 11, 2023.3 Appellant raises the following issue for our review: I. Did the [PCRA] court commit an error of law or abuse of discretion in finding that Appellant’s [appellate] counsel was not ineffective in failing to discover a factual error in this court’s opinion of December 20, 2017, indexed to 675 MDA 2017?

II. Did the [PCRA] court commit an error of law or abuse of discretion in determining that all remaining issues raised in Appellant’s amended PCRA and second amended [PCRA] were ____________________________________________

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substantive issues that could have been raised previously, and therefore, are considered waived?

Appellant’s brief at 4 (extraneous capitalization omitted).

Proper appellate review of a PCRA court’s dismissal of a PCRA petition is limited to the examination of “whether the PCRA court’s determination is supported by the record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding.”

Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation omitted). In order to be eligible for PCRA relief, a defendant must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

These issues must be neither previously litigated nor waived. 42 Pa.C.S.A.

§ 9543(a)(3).

To prevail on a claim of ineffective assistance of counsel under the PCRA, a petitioner must establish the following three factors: “first[,] the underlying claim has arguable merit; second, that counsel had no reasonable basis for his action or inaction; and third, that Appellant was prejudiced.”

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014) (citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his -5- J-S20042-24

conviction or sentence resulted from the [i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation marks omitted; some brackets in original), citing 42 Pa.C.S.A.

§ 9543(a)(2)(ii).

“[C]ounsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487 (Pa. 2011).

Following our thorough review of the record, including the briefs of the parties, the applicable law, and the well-reasoned opinion of the PCRA court, we conclude that Appellant’s claims on appeal warrant no relief. The PCRA court’s November 13, 2023 opinion discussed each of Appellant’s issues and concluded that they were without merit. We find that the PCRA court’s conclusions are supported by competent evidence and are clearly free of legal error. Accordingly, we adopt the comprehensive and well-reasoned November 13, 2023 opinion of the Honorable Jonathan D. Grine as our own for purposes of this appellate review.4

____________________________________________

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Order affirmed; Applications denied.5 Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 7/22/2024

____________________________________________

Appellant’s applications, which were filed while he was presently represented Attorney McGlaughlin, are denied as untimely. See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (“This court held, however, that when an appellant requests pro se status after his counsel has filed an appellate brief, the request is untimely.”).

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r• IN THE COURT OF COMNION PLEAS OF CENTRE COUNTY, PENNSYLVAN6 CRIMINAL ACTION — LAW COMMONWEALTH OF PENNSYLVANIA, V. NO. CP-14-CR-686-2015 THEOPHILUS BALDWIN Defendant

Attorneyfor Defendant: Ronald S ,lltc-Glaughlin, Esquire Attorneyfor Commonwealth.. Christopher J. Schmidt, Esquire

OPINION AND ORDER Presently before the Court is the matter of the Theophius Baldwin's (Defendant) Second Amended Petition for Post- Conviction Relief filed on June 15, 2022. A hearing on this matter was heard on May 2, 2023. For the following reasons. Defendant's Amended Petition is DENIED.

FINDINGS OF FACT Following the issuance of apresentment by the Thirty- Sixth Statewide Investigating Grand Jury, on January 29, 2014, the Commonwealth filed acriminal complaint charging Baldwin with several violations of the Controlled Substance, Drug, Device, and Cosmetic Act (Drug Act) Criminal Use of aCommunication Facility. On February 19, 2014, after a preliminary hearing, the charges were held for court. On March 5, 2014, an Information was filed. On June 20, 2014, Baldwin Oiled an omnibus pretrial motion which included amotion to sever. On August 19, 2014, the Court issued an order granting the severance motion.

00 ❑ RD ❑ S Baldwin was sentenced to serve three to six years of incarceration in astate correctional facility.

This term of incarceration was ordered to be served consecutive to the term of incarceration imposed at docket number 302-2014, On October 6, 2015, Baldwin filed apost-sentence motion seeking credit for time-served.

On October 15, 2015, the Court issued an order granting Baldwin's post-sentence motion in part which the Court amended on November 17, 2015. Baldwin did not file anotice of appeal.

On March 10, 2016, Baldwin filed apro se PCRA petition. On June 20, 2016 ;Baldwin filed acounseled amended PCRA petition challenging the trial court's jurisdiction over the matter and alleging trial counsel was ineffective for, inter alia, advising Baldwin not to appeal his judgment of sentence. On September 19, 2016, the Commonwealth answered the amended petition. An evidentiary hearing was held on January 20, 2017. On March 23, 2017, this Cou rt granted Baldwin's petition, in part, reinstating his direct appeal rights.

On April 20, 2017, Baldwin filed anotice of appeal nuns pro lunc. On appeal, Baldwin alleged that this Court lacked jurisdiction to accept his guilty plea and "the Commonwealth was barred from prosecuting [Baldwin] on any non-severed counts that could have been tried together at his jury trial" at docket number 302-2014. On December 20, 2017, the Superior Court affirmed Baldwin's judgment of sentence, finding that this Court did have jurisdiction to assign a new docket number for the severed counts and that the Commonwealth was not barred from filing an amended information and proceeding on the charges in this case following completion of his case at docket 302-2014, Commvnivealth v. Balchvil7, No. 675 MDA 2015, slip op. at 5-8 (Pa. Super, Dec..20, 2017) (unreported memorandum).

On October 9, 2018, Baldwin filed apro se PCRA petition. On November 13, 2018, the Court appointed Ronald McGlaughlin, Esquire to represent Baldwin. On June 14, 2019, . Baldwin

00 ❑ RD ❑ S filed acounseled amended PCRA petition. On June 15, 2022, Defendant filed asecond amended PCRA petition. This Court held an evidentiary hearing on .May 2, 2023 and has since received briefs on the issues.

DISCUSSION Baldwin initially raised three claims in his PCRA petition. First.. he alleged aviolation of Brady v. Afao land, 373 U.S. 83 ( 1963), based on the Commonwealth's supposed failure to disclose evidence of the guilty plea entered by former State College Police Department Sergeant Thomas Dann. Second, he claimed that his trial counsel, Brandon Merritt, Esq., was ineffective for allowing him to enter aguilty plea. Finally, he claims that his appellate counsel, Steven Trialonas, Esq., was ineffective for failing to recognize what Baldwin characterizes as an "inherent error" in the Superior Count's December 20, 2017, opinion that affirmed Baldwin's judgment of sentence on direct appeal. Baldwin asserts that the " inherent error" establishes that the Superior Court erred in determining that this Court had jurisdiction to accept Baldwin's plea when his direct appeal from the first set of severed charges was pending on direct appeal.

Baldwin filed additional pleadings, which included asecond amended PCRA petition that added additional claims. Baldwin claims that the Commonwealth's prosecution violated the Commonwealth's Attorneys Act, 71 P.S. § 732-205. He also asserts that Attorney Merritt should have sought to dismiss the charges based on the Commonwealth Attorneys Act, should have sought to dismiss Count 2 (Conspiracy), and that he should have faced only three charges at the instant docket after severance, not five charges. Baldwin, himself, also appears to want to present adouble jeopardy/compulsory joinder claim.

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Where aPCRA evidentiary hearing occurs, this Court is the fact-finder. This Court, therefore, evaluates witness credibility and determines the facts. See Commonwealth v. MUI.6)7, A.3d 8.68, 888 ( Pa. 2010); Commonwealth v. Johnson, 966 A.2d 523, 540 ( Pa. 2009). This Court also makes conclusions of law. Pa.R.Crim.P. 908(D); Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015).

The Post- Conviction Relief Act "provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief." 42 Pa.C.S. § 9542. "In order to be eligible for PCRA relief, apetitioner must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found at 42 Pa.C.S. § 9543(x)(2) (setting forth the eligibility requirements of the PCRA)." Commonwealth v. Wei.vs, 986 A.2d 808, 817 (Pa. 2009) (quoting C'ommomwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009).

One of those circumstances is that the petitioner's " conviction or sentence resulted from [a] violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place." Pa.C.S, § 9543(a)(2)(i).

To be eligible for PCRA relief, petitioners must plead and prove " the allegation of error has not been previously litigated or waived." 42 Pa.C.S. § 9543(a)(3). " An issue is waived if the petitioner could have raised it but failed to do so before trial ;: at trial, during unitary review, on appeal or in aprior state post- conviction proceeding." 42 Pa.C.S. § 9544(b).

The May, 2023 PCRA evidentiary hearing supports the Commonwealth's argument that it did not violate Brady. The public guilty plea of Dann was available equally to the Office of

00 ❑ RD ❑S Attorney General and Baldwin. Further, the PCRA evidentiary hearing testimony revealed that Attorney Merritt told Baldwin that Dann had pled guilty before Baldwin entered his plea, which further defeats aBrady claim and aclaim that Attorney Merritt was inetTective in this regard.

Attorney Merritt testified that he spoke to Baldwin about the Dann issue and that counts 3and 4 concerned Dann. Attorney Merritt also took great lengths to prepare for this case, which reveals that he would have also taken the basic step of informing Baldwin of Dann's plea: Attorney Merritt met with Baldwin multiple times, including for hours on end on some occasions. It is not believable that Attorney Merritt took such extensive steps, discussed the Dann issue with Baldwin at length, watched Dann plead guilty, but theddid not inform Baldwin of Dann's plea.

Therefore, Defendant's claim concerning aBrady violation has no merit.

As described above, Attorney Merritt provided effective assistance by informing Baldwin of Dann's plea and thoroughly reviewing that issue and discussing it with Baldwin. Next, Attorney Merritt implemented areasonable strategy of advising Baldwin to enter aplea agreement where the two Dann-related counts were dropped; Baldwin would plead guilty to the other counts where success at trial was unlikely, Baldwin would receive only a3-to- 6year sentence where the Commonwealth's initial plea offer was higher, and Baldwin could still raise his claim that the trial court could not accept his plea because it lacked jurisdiction since jurisdiction cannot be waived.

Ultimately, Baldwin admitted that he pled guilty with the understanding that he could raise the issue of whether the trial court had jurisdiction to accept his plea by stating that " Itook my chances." Baldwin explained that he weighed numerous factors for along time period before lie chose to plead guilty and preserve the jurisdiction issue. He completed aguilty colloquy form

00 ❑ RD ❑ S with Attorney- IMerritt and an oral plea colloquy, all of which evidenced that Baldwin made a knowing, voluntary, and intelligent plea with the sound advice of Attorney Merritt.

Concerning the " inherent error" in the Superior Court's December 20, 2017 Opinion; Defendant is correct the final disposition of Defendant's direct appeal at CP-302-2014 was a Memorandum Opinion tiled March 1, 2016, which was after Defendant's entry of aguilty plea.

Commonnvealth v. Baldtii,,in, No. 675 MDA 2017, 2017 WL 6505788 (Pa. Super. Ct. Dec. 20, 2017). However, despite the Superior Court stating the only action taken on CP-0686-2015 was assigning aseparate docket number, Defendant fails to produce any legal authority to show the Court he suffered "preiudice as aresult of counsel's error such that there is areasonable probability that the result of the proceeding would have been different absent such error." Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (quoting Commonwealth v. Lesko, 15 A.3d 345, 373-74 ( Pa. 2011)) (alteration added in (Fears). Throughout multiple briefs, hearings, and appeals, Defendant has failed to show with reasonable probability acourt does not have jurisdiction to act on adocket Defendant asked to be severed.

The remaining issues raised by Defendant appear to be either substantive issues, which could have been raised previously and are considered waived for this second PCRA, or, with respect to issues of the amended information or Double Jeopardy, have previously been litigated. Commontirealth v. Tiiretsk) ,,925 A.2d 876. 879 (Pa. Super. 2007), Baldivin, 2017 WL 6505788. As such the Court enters the following:

ORDER AND NOW, this / ` 3day of November, 2023, upon review of Defendant's Second Amended Petition for Post-Conviction Relief filed on June 15, 2022, brief's on the issues, and

FAI0 ❑ RD ❑ S after an evidentiary hearing, the Court finds Defendant's claims are meritless. Accordingly, Defendant's Petition is DISMISSED with prejudice.

BY THE COURT,

Jonah : n D. Grine, President Judge

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