Com. v. Kephart, T.

C
J-S11037-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIMOTHY LEE KEPHART                        :
                                               :
                       Appellant               :   No. 150 WDA 2020

             Appeal from the PCRA Order Entered January 8, 2020
     In the Court of Common Pleas of Clearfield County Criminal Division at
                       No(s): CP-17-CR-0000106-2015


BEFORE:      STABILE, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                               FILED: APRIL 30, 2021

        Appellant, Timothy Lee Kephart, pro se, appeals from the order denying

his first petition filed under the Post Conviction Relief Act (“PCRA”).1

We affirm.

        The facts underlying this case were fully and correctly set forth by this

Court in Commonwealth v. Kephart, No. 218 WDA 2016, unpublished

memorandum at 1-2 (Pa. Super. filed June 7, 2017). Therefore, we have no

reason to restate them at length here.

        For the convenience of the reader we briefly note that “Appellant ran

two trucking companies: (1) Dart Trucking, located in Columbiana, Ohio; and

(2) Kephart Trucking, located in Bigler, Pennsylvania.       Appellant’s criminal

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
J-S11037-21



acts with respect to Dart Trucking resulted in federal prosecution.”

Id. at

1.

  “The Commonwealth charged Appellant with 584 theft-related

offenses” related to Kephart Trucking, and Appellant eventually “pleaded

guilty to 96 counts of theft by failure to make required disposition of funds

received.”

Id. at 1-2

(footnote omitted).

     On July 31, 2015, the trial court held a sentencing/restitution
     hearing. Several [victims] testified about how Appellant’s actions
     affected them. Appellant also testified. The Commonwealth
     submitted 32 letters from victims and their family members, and
     Appellant submitted letters written on his behalf.           At the
     conclusion of the hearing, the court imposed a sentence of six
     months to two years’ incarceration for each of the first sixteen
     counts, to be served consecutively to one another, for a total of
     eight to thirty-two years. The terms imposed for the remaining
     counts were to be served concurrently.          Further, the state
     sentence was to be consecutive to Appellant’s federal sentence.
     The trial court also ordered Appellant to pay restitution to several
     [victims].

     On August 10, 2015, Appellant filed a post-sentence motion
     challenging the restitution order and the length and consecutive
     nature of his prison sentences. The court scheduled a hearing for
     November 17, 2015, but no testimony was taken because the
     parties stipulated that seven [victims] would testify that they
     incurred unpaid medical expenses as a result of having their
     insurance cancelled. The court ordered both parties to submit
     briefs on “any outstanding issues involving [Appellant]’s
     Postsentence Motion.” Order, 11/17/15. The Commonwealth
     submitted a brief, but Appellant did not. On January 8, 2016, the
     trial court granted the post-sentence motion, eliminating the
     restitution requirement and reducing the prison sentence to seven
     to twenty years. The court found that the Commonwealth had not
     met its burden of proving a basis for restitution. The court further
     explained that it reduced the maximum sentence because the
     original maximum was based on the court’s desire to ensure
     Appellant paid the full amount of restitution; once the restitution
     was eliminated, the court no longer believed that such a long
     maximum was necessary. Trial Ct. Op., 1/8/16, at 12. After the


                                    -2-
J-S11037-21


      court imposed the modified sentence, Appellant did not file
      another post-sentence motion.

Id. at 3-4

(footnote omitted). Appellant was not present at either the hearing

on his post-sentence motion or his resentencing hearing, because he “was in

the custody of the Federal government[.]”         PCRA Court Opinion, dated

January 8, 2020, at 3.

      Appellant filed a direct appeal, and this Court affirmed his judgment of

sentence on June 7, 2017. He did not petition for allowance of appeal with

the Supreme Court of Pennsylvania.

      On July 5, 2018, Appellant filed his first, counseled, timely PCRA

petition. On March 6, 2019, the PCRA court held an evidentiary hearing, at

which Appellant testified that he had communicated to trial counsel that he

desired to be present at all post-sentence hearings. N.T., 3/6/2019, at 53.

On January 8, 2020, the PCRA court denied Appellant’s petition by order and

opinion.

      On January 28, 2020, Appellant, pro se, filed this timely appeal. On

March 2, 2020, Appellant, pro se, filed his statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b). On June 24, 2020, the PCRA court

entered a statement that the opinion accompanying its order would serve as

its opinion for purposes of Pa.R.A.P. 1925(a).

      On July 16, 2020, this Court remanded the record to the trial court --

      for a period of time not to exceed 30 days during which time the
      trial court shall conduct a colloquy of Appellant pursuant to
      Commonwealth v. Grazier, 

713 A.2d 81

(Pa. 1998), in order to
      determine if Appellant desires to proceed pro se and, if so, if such
      request to proceed pro se is knowing, voluntary, and intelligent.

                                     -3-
J-S11037-21



Order, 7/16/2020. On August 18, 2020, this Court entered an order noting

that it had not received a response from the PCRA court “as to whether a[]

Grazier hearing was held or any results thereof” and ordering the PCRA court

“to comply with this Court’s July 16, 2020 Order[.]” Order, 8/18/2020. On

September 10, 2020, this Court entered the following order:

      AND NOW, as the [PCRA] court has returned the certified record
      to this Court, and as a review of the [PCRA] court docket reflects
      that the [PCRA] court held a Grazier hearing on August 28, 2020,
      and granted Appellant’s request to proceed in this Court pro se,
      Appellant is notified that he is proceeding on this matter in the
      Court pro se.

Order, 9/10/2020.

      Appellant now presents the following issues for our review:

      1)   Was [Appellant]’s trial counsel ineffective and his guilty plea
      unlawfully induced resulting in a manifest injustice?

      2)     Was trial counsel ineffective through acts of omission and
      therefore [Appellant] prejudiced at sentencing as a result of the
      court hearing victim impact statements from individuals that gave
      irrelevant and false statements regarding their medical bills?

      3)     Was trial counsel ineffective and [Appellant] prejudiced by
      trial counsel’s consenting to having [Appellant] re-sentenced in
      absentia and not filing a post sentence motion?

      4)   Was [Appellant] prejudiced and his appella[te] arguments
      compromised as a result of the trial court failing to provide the
      requested materials of record?

Appellant’s Brief at 2-3 (PCRA court’s answers omitted).

      “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 

209 A.3d 992

, 996 (Pa. Super. 2019) (quoting



                                     -4-
J-S11037-21


Commonwealth v. Brown, 

196 A.3d 130

, 150 (Pa. 2018)), reargument

denied (July 17, 2019).

      Preliminarily, we note that Appellant’s fourth issue was not included in

his concise statement of errors complained of on appeal and is therefore

waived.    Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement

and/or not raised in accordance with the provisions of this paragraph (b)(4)

are waived.”).

      All of Appellant’s remaining claims allege ineffective assistance of trial

counsel.

      Counsel is presumed to be effective.

      To overcome this presumption, a PCRA petitioner must plead and
      prove that: (1) the underlying legal claim is of arguable merit;
      (2) counsel’s action or inaction lacked any objectively reasonable
      basis designed to effectuate his client’s interest; and
      (3) prejudice, to the effect that there was a reasonable probability
      of a different outcome if not for counsel’s error.

      A failure to satisfy any of the three prongs of this test requires
      rejection of a claim of ineffective assistance.

Medina, 209 A.3d at 1000

(internal brackets, citations, and quotation marks

omitted) (some additional formatting).

      Appellant first contends that his “[t]rial counsel’s ineffectiveness

precipitated a causal nexus resulting in [him] entering a guilty plea that was

unlawfully induced, involuntary and unknowing.” Appellant’s Brief at 27. He

continues that “the unreasonable advice of trial counsel . . . caused [him] to

plead guilty to charges even though he was innocent.”

Id.

-5-

J-S11037-21



        After a thorough review of the record, the briefs of the parties, the

applicable    law,   and    the   well-reasoned     opinion   of   the   Honorable

Fredric J. Ammerman, we conclude Appellant’s first issue merits no relief. The

PCRA court opinion properly disposes of that question:

        [Appellant] fails to show that trial counsel’s actions had no
        reasonable strategic basis. This does not mean that “there were
        other more logical courses of action which counsel could have
        pursued: rather… whether counsel’s decisions had any reasonable
        basis.” Commonwealth v. Rollins, 

738 A.2d 435

, 441 (Pa.
        1999). At the time of the guilty plea, [Appellant] was facing 584
        charges. As part of the guilty plea, [Appellant] only plead to 96
        charges, meaning the Commonwealth withdrew 488 charges.
        [Appellant]’s trial was set for only several weeks after the time
        the guilty plea was entered. It is not unreasonable for trial counsel
        to advise [Appellant] to plea to only 96 charges, knowing it could
        significantly lower the sentence and number of convictions he was
        facing. Everyone, including [Appellant], was aware that there
        would be additional discovery made available prior to sentencing.
        This was remedied by trial counsel requesting a restitution hearing
        to determine what the appropriate restitution and grading of
        charges would be. While there were other options for [Appellant]
        and trial counsel to pursue, including proceeding to the scheduled
        jury trial, it is not an unreasonable course of action for [Appellant]
        to plead guilty and hold a restitution hearing prior to sentencing.

PCRA Court Opinion, dated January 8, 2020, at 1-2. Accordingly, Appellant

failed to establish that trial counsel’s action lacked any objectively reasonable

basis designed to effectuate Appellant’s interest; by failing to satisfy one prong

of the ineffective assistance of counsel test, we are required to reject

Appellant’s entire ineffectiveness claim on this basis. 

Medina, 209 A.3d at

1000

.

        Next, Appellant argues that “[t]rial counsel’s failure to object to victim

impact statements and restitution claims that were known to counsel at the


                                        -6-
J-S11037-21



time to be baseless and false severely prejudiced [Appellant] at the time of

sentencing.”     Appellant’s Brief at 38.      Appellant baldly asserts that “[t]his

testimony should have been barred under Rules 401 and 403”[2] but provides

no further explanation as to why or how these Rules apply. He also fails to

cite to any case law in support of his argument. By failing to cite to supporting

authority, Appellant has waived this second challenge.           Kelly v. Carman

Corp., 

229 A.3d 634

, 656 (Pa. Super. 2020) (citing Pa.R.A.P. 2119(a)

(argument shall include citation of authorities); Commonwealth v. Spotz,

18 A.3d 244

, 281 n.21 (Pa. 2011) (without a “developed, reasoned,

supported, or even intelligible argument[, t]he matter is waived for lack of

development”); In re Estate of Whitley, 

50 A.3d 203

, 209 (Pa. Super. 2012)

(“The argument portion of an appellate brief must include a pertinent

discussion of the particular point raised along with discussion and citation of

pertinent authorities[; t]his Court will not consider the merits of an argument

which fails to cite relevant case or statutory authority” (internal citations and

quotation marks omitted)); Lackner v. Glosser, 

892 A.2d 21

, 29-30 (Pa.

Super. 2006) (explaining appellant’s arguments must adhere to rules of

appellate procedure, and arguments which are not appropriately developed
____________________________________________


2 Although Appellant does not clarify, we assume that he is referring to
Pennsylvania Rules of Evidence 401 and 403, which respectively state,
“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action”; and “The court may exclude relevant
evidence if its probative value is outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.”

                                           -7-
J-S11037-21



are waived on appeal; arguments not appropriately developed include those

where party has failed to cite any authority in support of contention)).

      Finally, Appellant maintains that “[t]rial [c]ounsel was ineffective post

sentence as he failed to file a brief in support of the post sentence motion,

have [Appellant] present at the Post Sentence Hearing including his re-

sentencing and failed to file a Post Sentence Motion following the re-

sentencing.” Appellant’s Brief at 40.

      The PCRA court found that Appellant failed to establish the prejudice

prong of the ineffectiveness test, because he did “not provide[] any evidence

that[,] had [he] been present, the outcome and resentencing would have

changed.” PCRA Court Opinion, dated January 8, 2020, at 3. We agree.

      We first note that Appellant received multiple positive results from his

post-sentence motion – the motion was granted, restitution was eliminated,

and his term of incarceration was reduced. Consequently, it is difficult to see

how Appellant’s absence from the courtroom during the hearing on the post-

sentence motion or resentencing hearing or how trial counsel’s decision not to

file a brief for the post-sentence motion negatively impacted Appellant. As for

trial counsel’s failure to file a post-sentence motion following resentencing,

while Appellant is correct that such inaction caused any challenge to the

discretionary aspects of sentencing to be waived on appeal, this Court still

considered -- assuming the claim had been preserved -- whether the trial

court abused its discretion in resentencing Appellant and concluded that it had

not. This Court stated:

                                     -8-
J-S11037-21


     The Sentencing Code, 42 Pa.C.S. § 9721(b), provides that a court
     should impose a sentence of confinement that is “consistent with
     the protection of the public, the gravity of the offense as it relates
     to the impact on the life of the victim and on the community, and
     the rehabilitative needs of the defendant.” See Commonwealth.
     v. Walls, 

926 A.2d 957

, 962 (Pa. 2007). Here, the trial court
     explained its sentence as follows:

        In regard to the sentence, the Court took into account all
        factors that were both favorable to [Appellant] and
        favorable to the Commonwealth.            The Court certainly
        recognized that [Appellant] had a good record during his
        period of both Federal and then County incarceration. Also
        that [Appellant] has voluntarily taken responsibility for his
        actions and shown remorse. Any arguments made by both
        the Commonwealth and the Defense at [the] time of
        sentencing were closely listened to by the Court and taken
        into account when the sentence was fashioned. The Court
        further notes that all sentences imposed were squarely
        within the standard range of the State Sentencing
        Guidelines. For example, on the first sixteen counts of Theft
        by Failure to Make Required Disposition of Funds Received,
        Felony of the Third Degree, upon which [Appellant] received
        his princip[al] sentence, the standard range under the
        Sentencing Guidelines was RS[10] to 9 [months]. The
        minimum period of incarceration imposed on each count was
        6 months. Obviously, the real complaint of [Appellant] was
        that the 16 counts were run consecutive to each other.
        However, it is strictly within the discretion of the sentencing
        Judge to determine whether the sentence should be
        imposed consecutively or concurrently.

     Trial Ct. Op., 1/8/16, at 10. The court also reasoned, “[a]
     defendant is not entitled to receive a ‘volume discount’ for his
     criminal conduct by having his sentence[s] run concurrently
     simply because they are a result of one larger criminal
     transaction.”

Id. at 11.

The trial court noted that the restitution
     Appellant paid from his personal 401(k) was mandated by the
     Federal Court, and Appellant had previously tried to withdraw the
     money for himself. Trial Ct. Supp. Op., 6/1/16, ¶ 1. Finally, the
     trial court disagreed with Appellant’s assertion that this case was
     related to his federal case, which involved a different trucking
     company in a different state.

Id.

-9-

J-S11037-21


         10 RS is an abbreviation for Restorative Sanctions. RS
         “suggests use of the least restrictive, non-confinement
         sentencing alternatives described in 42 Pa.C.S. § 9753
         (determination of guilt without further penalty), § 9754
         (order of probation) and § 9758 (fine). 42 Pa.C.S. § 9721(c)
         (mandatory restitution) is also included in RS.” 204 Pa.
         Code § 303.9(f).

      We agree with the trial court’s reasoning. Accordingly, we
      conclude that the trial court did not abuse its discretion or commit
      an error of law in imposing sentence.

Kephart, No. 218 WDA 2016, at 10-12. Ergo, Appellant has failed to establish

that a different sentencing outcome would have resulted from different actions

or choices by trial counsel, and he hence has failed to establish prejudice and,

in turn, ineffective assistance of counsel. 

Medina, 209 A.3d at 1000

.

      For the reasons given above, we conclude that Appellant’s issues raised

on appeal are waived or meritless. Having discerned no error of law, we affirm

the order below. See

id. at 996.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2021




                                     - 10 -

Add comment

By

Recent Posts

Recent Comments