Com. v. Metz, C. ( 2017 )


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  • J-S32010-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellee                 :
    :
    v.                              :
    :
    CALVIN METZ                                :
    :
    Appellant                :       No. 3094 EDA 2015
    Appeal from the PCRA Order October 2, 2015
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0002989-2010
    BEFORE:      GANTMAN, P.J., STABILE, J., and FITZGERALD, J.*
    MEMORANDUM BY GANTMAN, P.J.:                              FILED JUNE 29, 2017
    Appellant, Calvin Metz, appeals from the order entered in the
    Philadelphia County Court of Common Pleas, dismissing his first petition
    brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
    The relevant facts and procedural history of this case are as follows.
    Appellant broke into his estranged wife’s house and removed approximately
    $6,585.00 worth of property.            As a result, Appellant was arrested and
    charged with burglary and related offenses. Appellant entered a negotiated
    guilty plea to burglary on September 8, 2010.           That same day, the court
    sentenced Appellant to a term of one (1) to two (2) years’ imprisonment,
    ____________________________________________
    1
    42 Pa.C.S.A. §§ 9541-9546.
    ___________________________
    *Former Justice specially assigned to the Superior Court.
    J-S32010-17
    followed by a consecutive term of four (4) years’ probation. Appellant did
    not seek direct review.
    The court held a violation of probation hearing for Appellant on July 2,
    2013.     At the hearing, the parties stipulated that Appellant had failed to
    report for probation and changed his residence without notifying his
    probation officer. As a result, the court found Appellant in technical violation
    and revoked probation.           On August 29, 2013, the court re-sentenced
    Appellant to a term of five (5) to ten (10) years’ imprisonment for the
    burglary conviction. Appellant filed pro se post-sentence motions, which the
    court denied. Appellant did not seek further direct review, and his judgment
    of sentence became final on September 28, 2013.
    Appellant timely filed a pro se PCRA petition on September 16, 2014,
    and an amended pro se PCRA petition on January 13, 2015. The PCRA court
    appointed PCRA counsel, who subsequently filed a motion to withdraw and
    Turner/Finley2 no-merit letter on July 11, 2015. Appellant filed a pro se
    response on August 13, 2015.             On September 4, 2015, the PCRA court
    issued notice of its intent to dismiss Appellant’s PCRA petition pursuant to
    Pa.R.Crim.P. 907. Appellant did not respond. The PCRA court denied relief
    and allowed counsel to withdraw on October 2, 2015.            The PCRA court
    appointed Attorney Douglas Earl to represent Appellant on October 5, 2015.
    ____________________________________________
    2
    Commonwealth v. Turner, 
    518 Pa. 491
    , 
    544 A.2d 927
    (1988) and
    Commonwealth v. Finley, 
    550 A.2d 213
    (Pa.Super. 1988) (en banc).
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    J-S32010-17
    Appellant timely filed a notice of appeal on October 6, 2015. On October 9,
    2015, the PCRA court ordered Appellant to file a concise statement of errors
    complained of on appeal per Pa.R.A.P. 1925(b). Appellant did not comply.
    On March 25, 2016, Appellant filed a “Motion for Remand” with this Court so
    he could file a Rule 1925(b) statement nunc pro tunc. This Court granted
    the motion on April 21, 2016, and directed Appellant to file a Rule 1925(b)
    statement.
    On May 3, 2016, Appellant timely filed a counseled Rule 1925(b)
    statement and an amended Rule 1925(b) statement nunc pro tunc. In his
    amended Rule 1925(b) statement Appellant, for the first time, claimed:
    PCRA counsel was ineffective for failing to request reinstatement of
    Appellant’s direct appeal rights nunc pro tunc so Appellant could challenge
    the discretionary aspects of his sentence; and the court relied primarily on
    Appellant’s prison tapes when it imposed an excessive sentence, which
    overemphasized the need to protect the public and ignored Appellant’s
    rehabilitative needs.      Appellant also claimed that he raised a meritorious
    sentencing issue in his PCRA petition.3
    Appellant presents one issue in his brief:
    DID THE [PCRA] COURT ERR BY RULING THAT ISSUES
    NOT RAISED IN THE RESPONSE TO THE RULE 907 NOTICE
    ____________________________________________
    3
    Appellant challenged his August 29, 2013 judgment of sentence on several
    grounds in his PCRA petition, but his amended Rule 1925(b) statement fails
    to specify which sentencing issue he wanted to preserve.
    -3-
    J-S32010-17
    ARE WAIVED?
    (Appellant’s Brief at 3).
    Appellant argues this Court should address the issues Appellant raised
    in his amended Rule 1925(b) statement. Appellant baldly asserts he did not
    waive     these   issues    for     appellate      review.        Regarding     Appellant’s
    ineffectiveness of PCRA counsel claim, Appellant essentially avers this Court
    should not follow its decision in Commonwealth v. Smith, 
    121 A.3d 1049
    (Pa.Super. 2015), appeal denied, 
    136 A.3d 981
    (2016), which held that a
    petitioner’s failure to raise an ineffectiveness of counsel claim after receiving
    Rule 907 notice results in waiver of the claim. Appellant, however, fails to
    argue why this Court should abandon its decision in Smith and address the
    merits of this issue.       Likewise, Appellant merely restates the sentencing
    issues from his amended Rule 1925(b) statement, but he does not provide
    any supporting argument.          Appellant concludes this Court should address
    Appellant’s issues, vacate his judgment of sentence, and remand this case
    for a sentencing hearing. We disagree.
    Our standard of review of a grant or denial of a PCRA petition is limited
    to   examining    whether     the    evidence      of   record     supports    the    court’s
    determination     and      whether     its    decision       is   free   of   legal    error.
    Commonwealth v. Conway, 
    14 A.3d 101
    (Pa.Super. 2011), appeal denied,
    
    612 Pa. 687
    , 
    29 A.3d 795
    (2011). This Court grants great deference to the
    findings of the PCRA court if the record contains any support for those
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    J-S32010-17
    findings. Commonwealth v. Boyd, 
    923 A.2d 513
    (Pa.Super. 2007), appeal
    denied, 
    593 Pa. 754
    , 
    932 A.2d 74
    (2007). We exercise de novo review over
    the PCRA court’s legal conclusions. Commonwealth v. Spotz, 
    610 Pa. 17
    ,
    44, 
    18 A.3d 244
    , 259 (2011).
    A PCRA petitioner must plead and prove his allegation of error has not
    been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). “[A]n 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 a prior state post-conviction
    proceeding.”    42 Pa.C.S.A. § 9544(b).        Where PCRA counsel seeks to
    withdraw from representation, the petitioner must preserve any challenge to
    counsel’s ineffectiveness in a response to counsel’s no-merit letter or, if
    applicable, the court’s Rule 907 notice. See Commonwealth v. Pitts, 
    603 Pa. 1
    , 9 n.4, 
    981 A.2d 875
    , 880 n.4 (2009). A petitioner’s failure to raise an
    ineffectiveness of PCRA counsel claim after receiving Rule 907 notice results
    in waiver of the claim. 
    Id. See also
    Commonwealth v. Ousley, 
    21 A.3d 1238
    , 1245 (Pa.Super. 2011), appeal denied, 
    612 Pa. 698
    , 
    30 A.3d 487
    (2011)   (stating   Pitts   prohibits   this   Court’s   review   of   petitioner’s
    ineffectiveness of PCRA counsel claim, where issue was raised for first time
    in PCRA appeal).
    A claim that a sentence is manifestly excessive challenges the
    discretionary aspects of sentencing.     Commonwealth v. Lutes, 
    793 A.2d 949
    (Pa.Super. 2002). Objections to the discretionary aspects of sentence
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    J-S32010-17
    are generally waived if they are not raised at the sentencing hearing or
    raised in a motion to modify the sentence imposed at that hearing.
    Commonwealth v. Mann, 
    820 A.2d 788
    , 794 (Pa.Super. 2003), appeal
    denied, 
    574 Pa. 759
    , 
    831 A.2d 599
    (2003). “Challenges to the discretionary
    aspects of sentencing are not cognizable under the PCRA.” Commonwealth
    v. Fowler, 
    930 A.2d 586
    , 593 (Pa.Super. 2007), appeal denied, 
    596 Pa. 715
    , 
    944 A.2d 756
    (2008).
    In the instant case, Appellant timely filed a pro se PCRA petition on
    September 16, 2014, and an amended pro se PCRA petition on January 13,
    2015.    The PCRA court appointed PCRA counsel, who subsequently filed a
    motion    to   withdraw   and   Turner/Finley   no-merit   letter.   Appellant
    responded to PCRA counsel on August 13, 2015.          On September 4, 2015,
    the PCRA court issued Rule 907 notice to Appellant.         Appellant did not
    respond. The PCRA court denied relief and allowed counsel to withdraw on
    October 2, 2015.     In his amended Rule 1925(b) statement, Appellant, for
    the first time, claimed: PCRA counsel was ineffective for failing to request
    reinstatement of Appellant’s direct appeal rights nunc pro tunc so Appellant
    could challenge the discretionary aspects of his sentence. Appellant did not
    raise this specific allegation of ineffectiveness of PCRA counsel in his August
    13, 2015 response to counsel’s withdrawal petition or in response to the
    PCRA court’s Rule 907 notice.      See 
    Pitts, supra
    .    Therefore, Appellant’s
    ineffectiveness of PCRA counsel claim is waived. See id.; 
    Ousley, supra
    .
    -6-
    J-S32010-17
    Appellant’s remaining arguments relate to his August 29, 2013
    judgment of sentence, and it appears Appellant has abandoned these issues
    on appeal.     Appellant’s sentencing claims are completely undeveloped and
    vague, consisting of a single conclusory statement that Appellant did not
    waive these issues on appeal, which lacks any cogent nexus between
    relevant law and the facts of this case.          Thus, Appellant waived his
    sentencing issues.      See Commonwealth v. Johnson, 
    604 Pa. 176
    , 
    985 A.2d 915
    (2009), cert. denied, 
    562 U.S. 906
    , 
    131 S. Ct. 250
    , 
    178 L. Ed. 2d 165
    (2010) (explaining appellant waives issue on appeal where he fails to
    present claim with citations to relevant authority or develop issue in
    meaningful fashion capable of review).4
    To the extent Appellant claims the court relied primarily on Appellant’s
    prison tapes when it imposed an excessive sentence, his challenge
    implicates the discretionary aspects of sentencing.        See 
    Lutes, supra
    .
    Appellant failed to raise this argument at the sentencing hearing or in his
    motions to reconsider sentence. Instead, Appellant raised this issue for the
    first time on appeal in his May 3, 2016 amended Rule 1925(b) statement.
    Therefore, Appellant waived his excessive sentence claim on this ground as
    well. See 
    Fowler, supra
    ; 
    Mann, supra
    .
    Moreover, even if Appellant had properly preserved his issues on
    ____________________________________________
    4
    Appellant waived his ineffectiveness of counsel claim on this ground also.
    -7-
    J-S32010-17
    appeal, they would merit no relief and we would affirm based on the PCRA
    court opinions. (See PCRA Court Opinions, filed March 15, 2016, at 1-3, and
    September 2, 2016, at 1-3) (finding: Appellant did not request direct
    appeal; court imposed sentence of five to ten years’ imprisonment after
    Appellant violated probation for burglary; burglary is first degree felony,
    which carries maximum penalty of twenty years’ imprisonment; including
    Appellant’s negotiated sentence of one to two years’ imprisonment,
    Appellant’s sentence is still within lawful maximum; Appellant’s Alleyne5
    challenge merits no relief because court did not impose mandatory minimum
    sentence; court properly considered Appellant’s recorded prison statements
    during sentencing hearing because statements were party admissions
    pursuant to Pa.R.E. 803(25); there were no genuine issues of fact which
    required evidentiary hearing). Accordingly, we affirm.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/29/2017
    ____________________________________________
    5
    Alleyne v. U.S., ___ U.S. ___, 
    133 S. Ct. 2151
    , 
    186 L. Ed. 2d 314
    (2013).
    -8-
    Circulated 06/09/2017 09:59 AM
    Circulated 06/09/2017 09:59 AM