Com. v. Bradley, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES BRADLEY
Appellant No. 1828 EDA 2014
Appeal from the PCRA Order May 16, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012564-2007
BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 01, 2015
James Bradley appeals from an order dismissing his petition for relief
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We
affirm.
A jury found Bradley guilty of possession with intent to deliver 6.9
grams of crack cocaine (“PWID”).1 On April 30, 2009, the trial court
sentenced Bradley to 5-10 years’ imprisonment.2 Bradley filed timely post-
sentence motions, which the trial court denied, followed by a timely direct
appeal and timely opening and supplemental Pa.R.A.P. 1925(b) statements.
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1
35 P.S. § 780-113(a)(30).
2
On the same date, Bradley pled guilty to PWID charges at other caption
numbers. The PWID charges and sentences at the other captions numbers
are not at issue in this appeal.
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On direct appeal, Bradley argued, inter alia, that the trial court erroneously
applied the Sentencing Guidelines Youth/School Enhancement, 204 Pa.Code
303.10(b), at sentencing, and erroneously considered impermissible factors
at sentencing. On August 23, 2011, this Court affirmed Bradley’s judgment
of sentence. On July 27, 2011, the Pennsylvania Supreme Court denied
Bradley’s petition for allowance of appeal.
On March 7, 2012, Bradley filed a timely PCRA petition. The court
appointed PCRA counsel, who filed a Turner/Finley3 letter on February 25,
2014 and a motion to withdraw as counsel on February 26, 2014. On March
20, 2014, the PCRA court filed a notice of intent to dismiss Bradley’s PCRA
petition without a hearing pursuant to Pa.R.Crim.P. 907. On March 31,
2014, the PCRA court granted PCRA counsel leave to withdraw. On May 16,
2014, the PCRA court dismissed Bradley’s petition.
Bradley filed a timely notice of appeal to this Court. On June 25,
2014, the PCRA court ordered Bradley to file a Pa.R.A.P. 1925(b) statement
within 21 days. On August 4, 2014, Bradley filed an untimely Pa.R.A.P.
1925(b) statement pro se.
Bradley raises the following issues in his appellate brief, which we
paraphrase and re-order for the sake of clarity: (1) ineffective assistance of
counsel for failure to prepare Bradley or other witnesses for trial; (2)
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3
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super.1988).
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ineffective assistance of counsel for failure to explain that Bradley could
receive a lengthier sentence if he elected to have a jury trial; (3) ineffective
assistance for failing to challenge the court’s improper calculation of
Bradley’s prior record score; (4) ineffective assistance of counsel for failure
to object to improper calculation of Bradley’s prior record score at
sentencing; (5) ineffective assistance of PCRA counsel for failure to allege
ineffective assistance of trial counsel; and (6) an error of law by the trial
court by imposing a mandatory minimum sentence based on facts that were
not proved to the jury beyond a reasonable doubt.
Our standard and scope of review are well-settled:
We review an order dismissing a petition under the
PCRA in the light most favorable to the prevailing
party at the PCRA level. This review is limited to the
findings of the PCRA court and the evidence of
record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of
legal error. This Court may affirm a PCRA court’s
decision on any grounds if the record supports it. We
grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless
they have no support in the record. However, we
afford no such deference to its legal conclusions.
Further, where the petitioner raises questions of law,
our standard of review is de novo and our scope of
review is plenary.
***
The Turner/Finley decisions provide the manner for
postconviction counsel to withdraw from
representation. The holdings of those cases mandate
an independent review of the record by competent
counsel before a PCRA court or appellate court can
authorize an attorney’s withdrawal. The necessary
independent review requires counsel to file a “no-
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merit” letter detailing the nature and extent of his
review and list each issue the petitioner wishes to
have examined, explaining why those issues are
meritless. The PCRA court, or an appellate court if
the no-merit letter is filed before it, see Turner,
supra, then must conduct its own independent
evaluation of the record and agree with counsel that
the petition is without merit....
[T]his Court [has] imposed additional requirements
on counsel that closely track the procedure for
withdrawing on direct appeal.... [C]ounsel is required
to contemporaneously serve upon his [or her] client
his [or her] no-merit letter and application to
withdraw along with a statement that if the court
granted counsel’s withdrawal request, the client may
proceed pro se or with a privately retained
attorney....
Commonwealth v. Rykard, 55 A.3d 1177, 1183–84 (Pa.Super.2012)
(some citations and footnote omitted).
Our review of the record confirms that counsel substantially complied
with the Turner/Finley procedural requirements to withdraw. Specifically,
counsel filed a detailed 11-page letter explaining why she believed Bradley’s
claims lacked merit. She sent this letter to Bradley and sent him her
petition to withdraw the following day. She informed Bradley of his right to
retain private counsel or proceed pro se. Bradley did not file a response.
Accordingly, we will proceed with our independent review of the questions
presented to determine if counsel correctly concluded that the issues raised
had no merit.
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Bradley’s first two claims both allege ineffective assistance of counsel
prior to and/or during trial – specifically, ineffectiveness for failure to
prepare Bradley or other witnesses for trial and ineffectiveness for failure to
explain that Bradley could receive a lengthier sentence if he elected to have
a jury trial. To obtain relief on a claim of ineffective assistance of counsel,
the PCRA petitioner must satisfy the performance and prejudice test set
forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Specifically,
the petitioner must establish that: (1) the underlying claim has arguable
merit; (2) no reasonable basis existed for counsel’s actions or failure to act;
and (3) the petitioner suffered prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable probability that the
result of the proceeding would have been different. Commonwealth v.
Pierce, 527 A.2d 973, 975 (Pa.1987). Counsel is presumed effective.
Charleston, 94 A.3d at 1019. A court need not analyze the elements of an
ineffectiveness claim in any particular order of priority; if a claim fails any
necessary element of the Strickland test, the court may proceed to that
element first. Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa.1998).
Additionally, counsel cannot be deemed ineffective for failing to raise a
meritless claim. Commonwealth v. Jones, 912 A.2d 268, 278 (Pa.2006).
Bradley has waived his first two arguments by failing to file a timely
Pa.R.A.P. 1925(b) statement. An appellant must file his statement of
matters complained of on appeal within the time specified in an order to
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submit a Pa.R.A.P. 1925(b) statement.4 The court’s order docketed June 25,
2014 specifically directed Bradley to file his Pa.R.A.P. 1925(b) statement
within 21 days, or by July 16, 2014. The docket further states that the Clerk
of Court served this order on Bradley via first class mail on June 25, 2014.
Bradley filed his Pa.R.A.P. 1925(b) statement on August 4, 2014, 19 days
late.
In general, issues raised in an untimely Pa.R.A.P. 1925(b) statement
are waived. Commonwealth v. Castillo, 888 A.2d 775, 776 (Pa.2005).
But when a criminal defendant is represented by counsel, counsel’s failure to
file a timely Pa.R.A.P. 1925(b) statement constitutes ineffective assistance
per se. Commonwealth v. Thompson, 39 A.3d 335, 340, n.11
(Pa.Super.2012). The remedy for such ineffectiveness is remand to the trial
court, either for the filing of a Rule 1925(b) statement nunc pro tunc or the
filing of a Rule 1925(a) opinion addressing the issues raised in an untimely
1925(b) statement. Pa.R.A.P. 1925(c)(3); Thompson, supra.
Pa.R.A.P. 1925 makes no such allowance when (as here) the
defendant represents himself on appeal pro se. In general, a pro se
defendant’s failure to file a timely Pa.R.A.P. 1925(b) statement in a PCRA
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4
The court cannot specify a time period shorter than 21 days. Pa.R.A.P.
1925(b).
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appeal constitutes waiver of all issues.5 Commonwealth v. Butler, 812
A.2d 631, 634 (Pa.2002) (PCRA defendant’s failure to comply with order to
file Pa.R.A.P. 1925(b) statement resulted in automatic waiver of any issues
he may have raised on appeal, even though Commonwealth never briefed or
argued waiver). By filing an untimely Pa.R.A.P. 1925(b) statement pro se,
Bradley has waived the first two issues in his brief.6
We consider Bradley’s third and fourth arguments together, because
they involve the same issue. Bradley asserts that trial counsel was
ineffective for failing to argue that the court computed Bradley’s prior record
score improperly. Trial counsel failed to preserve this discretionary issue for
direct appeal; nevertheless, under the Strickland standards articulated
above, this issue lacks arguable merit.
A claim that the sentencing court misapplied the Sentencing Guidelines
“constitutes a challenge to the discretionary aspects of sentence [which]
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5
Issues relating to the legality of the defendant’s sentence constitute one
exception to the waiver rule. Commonwealth v. Orellana, 86 A.3d 877,
883 n. 7 (Pa.Super.2014) (citation omitted) (Superior Court “is endowed
with the ability to consider an issue of illegality of sentence sua sponte”).
Notwithstanding this exception to the waiver rule, legality of sentence issues
must be timely raised within the PCRA’s statute of limitations in order for
this Court to have jurisdiction to decide them. Commonwealth v. Miller,
102 A.3d 988, 994-96 (Pa.Super.2014).
6
In addition, Bradley waived his second issue – trial counsel was ineffective
for failing to advise Bradley that he could receive a higher sentence by
proceeding to a jury trial – because he failed to raise it in his PCRA petition.
Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa.2013).
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presents a substantial question.” Commonwealth v. Archer, 722 A.2d
203, 211 (Pa.Super.1998) (en banc). Before this Court can reach the merits
of a challenge to the discretionary aspects of a sentence,
we must engage in a four-part analysis to
determine: (1) whether the appeal is timely; (2)
whether the appellant preserved his issue; (3)
whether the appellant's brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence [see Pa.R.A.P. 2119]; and (4) whether the
concise statement raises a substantial question that
the sentence is appropriate under the sentencing
code.... [I]f the appeal satisfies each of these four
requirements we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa.Super.2014).
The calculation of Bradley’s prior record score presents a substantial
question, Archer, supra, thus satisfying prong 4 of Antidormi.
Nevertheless, trial counsel failed two of Antidormi’s other prongs: he failed
to challenge the calculation of Bradley’s prior record score during Bradley’s
sentencing hearing or in his post-sentence motions (prong 2), and he
omitted any challenge to Bradley’s prior record score from his opening or
supplemental Pa.R.A.P. 1925(b) statement of matters complained of on
direct appeal (prong 3). Thus, trial counsel failed to preserve this issue for
direct appeal.
To obtain PCRA relief, however, Bradley must also demonstrate that
trial counsel’s failure to preserve the prior record score issue constitutes
ineffective assistance under Strickland. We conclude that Bradley fails to
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establish Strickland’s arguable merit component, because the trial court
properly calculated his prior record score. As the PCRA court cogently
explained:
[Bradley’s] prior record score was correctly
calculated. [His] prior record score is a 6, and he is
classified as a ‘Repeat Felony 1 and Felony 2
Offender Category Offender (‘RFEL’). [His] score is
the product of his three felony-2 (‘F-2’) convictions,
[which] are: (1) CP-51-CR-030711-1996, [Bradley’s
guilty plea] to criminal trespass of building/occupied
structure (F-2)7; CP-51-CR-0601342-1996,
[Bradley’s conviction for] robbery8; (3) CP-51-CR-
0601342-1996, [Bradley’s conviction for] criminal
conspiracy [to commit robbery] … [T]hese three F-2
convictions cause [his] prior record score to be a 6
and he is therefore classified as an RFEL offender.
Pa.R.A.P. 1925(a) Opinion, p. 10.9 Thus, Bradley’s third and fourth
arguments fail.
In his fifth argument, Bradley contends that PCRA counsel was
ineffective for failing to challenge trial counsel’s ineffectiveness. This
argument is not ripe for review, because claims of PCRA counsel’s
ineffectiveness cannot be raised for the first time in an appeal from the
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7
18 Pa.C.S. § 3503.
8
18 Pa.C.S. § 3701.
9
We observe for the sake of completeness that after correctly computing
Bradley’s prior record score, the court correctly computed the correct offense
gravity score and used the correct sentencing matrix (Youth and School
Enhancement Matrix).9 The standard range sentence under this matrix is
53-81 months. 204 Pa. Code § 303.18(c). The court sentenced Bradley to
60-120 months, well within the standard range.
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denial of a PCRA petition. Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa.Super.2014).
Finally, Bradley argues that his sentence is unconstitutional under
Alleyne v. United States, -- U.S. --, 133 S. Ct. 2151 (2013). Alleyne held
that, other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory minimum must be
submitted to a jury and proved beyond a reasonable doubt. Id., 131 S.Ct.
at 2160-61. Presumably, Bradley argues his sentence is unconstitutional
because the trial court applied the youth/school enhancement factors to his
sentence without a jury and under a preponderance of the evidence
standard.
Bradley failed to raise Alleyne in his PCRA petition and has raised it
for the first time in his present appeal, more than one year after his
judgment of sentence became final. This issue is not waived, because
challenges to the legality of a sentence cannot be waived. Miller, 102 A.3d
at 996 (Alleyne challenge to legality of sentence is “not technically
waivable”). On the other hand, this issue is untimely, because Bradley
raised it for the first time more than one year after his judgment of sentence
became final. As a result, we lack jurisdiction to review it under the PCRA’s
statute of limitations, 42 Pa.C.S. § 9545(b).
Section 9545 provides that a petition “including a second or
subsequent petition, shall be filed within one year of the date the judgment
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becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). No court has jurisdiction to
hear an untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d
1076, 1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837
A.2d 1157, 1161 (Pa.2003)). A judgment is final “at the conclusion of direct
review, including discretionary review in the Supreme Court of the United
States and the Supreme Court of Pennsylvania, or at the expiration of time
for seeking the review.” 42 Pa.C.S. § 9545(b)(3).
Three exceptions to the PCRA’s time-bar provide for very limited
circumstances under which a court may excuse the late filing of a PCRA
petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. The late
filing of a petition will be excused if a petitioner alleges and proves:
(i) the failure to raise the claim previously was the
result of interference by government officials with
the presentation of the claim in violation of the
Constitution or laws of this Commonwealth or the
Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the United
States or the Supreme Court of Pennsylvania after
the time period provided in this section and has been
held by that court to apply retroactively.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petition invoking an exception to the
PCRA time bar must “be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
In our view, these jurisdictional precepts apply when, as here, (1) the
petitioner timely files a PCRA petition, (2) neglects to raise a particular issue
(e.g., Alleyne) in the PCRA court, but then (3) raises that issue for the first
time on appeal, more than one year after his judgment of sentence becomes
final. To entertain an issue on appeal under these circumstances would
circumvent the strict jurisdictional time limitations embodied in section
9545. See Commonwealth v. Edmiston, 851 A.2d 883, 889 (Pa.2004)
(citing Pa.R.A.P. 302(a) and Commonwealth v. Bond, 819 A.2d 33, 52
(2002)) (“[p]ermitting a PCRA petitioner to append new claims to the appeal
already on review would wrongly subvert the time limitation and serial
petition restrictions of the PCRA”)10.
With these principles in mind, we observe that Bradley’s judgment of
sentence became final on October 25, 2011, the last day for filing a petition
for writ of certiorari in the United States Supreme Court. Thus, Bradley had
until October 25, 2012 to raise an Alleyne-type claim in a PCRA petition.
Bradley did not raise Alleyne until August 4, 2014, when he cited Alleyne
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10
In addition, “the proper vehicle for raising new claims is not on PCRA
appeal, but rather in a subsequent PCRA petition.” Edmiston, 851 A.2d at
889.
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in his Pa.R.A.P. 1925(b) statement. Thus, his attempt to raise Alleyne is
untimely on its face.
Nor do any of the exceptions in section 9545(b)(i-iii) apply to this
case. Bradley suggests in his brief that Alleyne applies retroactively under
section 9545(b)(iii), because challenges to the illegality of his sentence are
never waived. We disagree, based on our analysis of the same issue in
Miller. Miller held that the PCRA court lacked jurisdiction to consider an
Alleyne argument presented in a second PCRA petition filed five years after
the petitioner’s judgment of sentence became final, reasoning:
Subsection (iii) of Section 9545 [(b)(1)] has two
requirements. First, it provides that the right
asserted is a constitutional right that was recognized
by the Supreme Court of the United States or [the
Supreme Court of Pennsylvania] after the time
provided in this section. Second, it provides that the
right ‘has been held’ by ‘that court’ to apply
retroactively. Thus, a petitioner must prove that
there is a ‘new’ constitutional right and that the right
‘has been held’ by that court to apply retroactively.
The language ‘has been held’ is in the past tense.
These words mean that the action has already
occurred, i.e., ‘that court’ has already held the new
constitutional right to be retroactive to cases on
collateral review. By employing the past tense in
writing this provision, the legislature clearly intended
that the right was already recognized at the time the
petition was filed.
…
Even assuming that Alleyne did announce a new
constitutional right, neither our Supreme Court, nor
the United States Supreme Court has held that
Alleyne is to be applied retroactively to cases in
which the judgment of sentence had become final.
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This is fatal to Appellant’s argument regarding the
PCRA time-bar. This Court has recognized that a new
rule of constitutional law is applied retroactively to
cases on collateral review only if the United States
Supreme Court or our Supreme Court specifically
holds it to be retroactively applicable to those cases.
Commonwealth v. Phillips, 31 A.3d 317, 320
(Pa.Super.2011), appeal denied, 615 Pa. 784, 42
A.3d 1059 (2012), citing Tyler v. Cain, 533 U.S.
656, 663, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001);
see also, e.g., Commonwealth v. Taylor, 933
A.2d 1035, 1042 (Pa.Super.2007) (stating, ‘for
purposes of subsection (iii), the language ‘has been
held by that court to apply retroactively’ means the
court announcing the rule must have also ruled on
the retroactivity of the new constitutional right,
before the petitioner can assert retroactive
application of the right in a PCRA petition[ ]’), appeal
denied, 597 Pa. 715, 951 A.2d 1163 (2008).
Therefore, Appellant has failed to satisfy the new
constitutional right exception to the time-bar.
…
We are aware that an issue pertaining to Alleyne
goes to the legality of the sentence. See
Commonwealth v. Newman, 99 A.3d 86, 90
(Pa.Super.2014) (en banc) (stating, ‘a challenge to a
sentence premised upon Alleyne likewise implicates
the legality of the sentence and cannot be waived on
appeal[ ]’). It is generally true that ‘this Court is
endowed with the ability to consider an issue of
illegality of sentence sua sponte.’ Commonwealth
v. Orellana, 86 A.3d 877, 883 n. 7 (Pa.Super.2014)
(citation omitted). However, in order for this Court to
review a legality of sentence claim, there must be a
basis for our jurisdiction to engage in such review.
See Commonwealth v. Borovichka, 18 A.3d 1242,
1254 (Pa.Super.2011) (stating, ‘[a] challenge to the
legality of a sentence ... may be entertained as long
as the reviewing court has jurisdiction[ ]’) (citation
omitted). As this Court recently noted, ‘[t]hough not
technically waivable, a legality [of sentence] claim
may nevertheless be lost should it be raised ... in an
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untimely PCRA petition for which no time-bar
exception applies, thus depriving the court of
jurisdiction over the claim.’ [Commonwealth v.]
Seskey, [86 A.3d 237,] 242 [(Pa.Super.2014)]. As a
result, the PCRA court lacked jurisdiction to consider
the merits of Appellant’s second PCRA petition, as it
was untimely filed and no exception was proven…
Id. at 994, 995, 996 (emphasis added; certain citations omitted). Miller
squarely applies to this case. Like the petitioner in Miller, Bradley raised
Alleyne more than one year after his judgment of sentence became final.
Moreover, even if Alleyne announced a new constitutional right, neither the
United States Supreme Court nor the Pennsylvania Supreme Court has held
that this right applies retroactively. Thus, although Alleyne implicates the
legality of Bradley’s sentence, we lack jurisdiction to address this issue.
Miller, 102 A.3d at 995, 996.
Bradley’s Alleyne argument suffers from an additional jurisdictional
defect not present in Miller. Whereas the petitioner in Miller raised
Alleyne in a PCRA petition within sixty days after Alleyne’s issuance,
Bradley did not raise Alleyne until over one year after its issuance.
Consequently, Bradley’s Alleyne claim is untimely under the sixty-day
deadline in section 9545(b)(2) for filing exceptions to the PCRA’s one-year
time bar.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2015
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