J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THEOPHILUS L. BALDWIN

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 summarize d the relevant fact s 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.J

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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 2 7, 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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1 Commonwealth v. Baldwin , ___ A.3d ___, 2016 WL 800677 (Pa.Super. 2016) (unpublished memorandum).J

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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 Co urt granted [Appellant’s] petition, in part, reinstating his direct appeal rights.

On April 20, 2017, filed a notice of appeal nun c pro t unc

. 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 t heJ

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- 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] c ounsel was not ineffective in failing to discover a f actual 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 o f discretion in determining that all remaining i ssues raised in A ppellant ’ s amended PCRA and s econd amended [PCRA] were

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2 Commonwealth v. Baldwin , ___ A.3d ___, 2017 WL 6505788 (Pa.Super. 2017) (unpublished memorandum).

3 Appellant and the PCRA court have complied with Pa.R.A.P. 1925.J

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- substantive issues that c ould have been raised previously, and therefore, a re 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 hisJ

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- 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

- reaso ned November

13, 2023 opinion of the Honorable Jonathan D. Grine as our own for purposes

of this appellate review. 4

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4 We instruct the parties to attach a copy of the PCRA opinion to any future filings.J

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-

Order affirmed ; Application s denied. 5

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 7/22/2024

_________________ __________ ______ ____ _______

5 On February 14, 2024, Appellant filed a pro se application for relief requesting the withdrawal of his appellate counsel. Thereafter, on March 13, 2024, Appellant filed a n application requesting permission to proceed pro se or that this matter be remanded for the appointment of new PCRA counsel

. 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.”).r• IN THE COURT OF COMNION PLEAS OF CENTRE COUNTY, PENNSYLVAN6 CRIMINAL ACTION — LAW

COMMONWEALTH OF PENNSYLVANIA,

V.

THEOPHILUS BALDWIN Defendant NO. CP-14-CR-686-2015

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 a presentment by the Thirty- Sixth Statewide Investigating

Grand Jury, on January 29, 2014, the Commonwealth filed a criminal complaint charging

Baldwin with several violations of the Controlled Substance, Drug, Device, and Cosmetic Act

(Drug Act) Criminal Use of a Communication 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 a motion to

sever. On August 19, 2014, the Court issued an order granting the severance motion.

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