Com. v. Kingwood, D. ( 2019 )

J-S11010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DESEAN KINGWOOD :
:
Appellant : No. 987 EDA 2018
Appeal from the PCRA Order March 8, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012048-2008
BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 14, 2019
Appellant, Desean Kingwood, appeals from the order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
The PCRA court summarized the procedural history of this case as
follows:
On August 8, 2008, [Appellant] was arrested and charged
with Attempt[ed] Murder and related offenses. On April 22, 2013,
[Appellant] appeared before this [c]ourt and elected to be tried by
a jury. On April 26, 2013, a jury convicted [Appellant] of
Attempt[ed] Murder, Aggravated Assault, Firearms Not to be
Carried Without a License (“VUFA 6106”) and Recklessly
Endangering Another Person (“REAP”). On December 11, 2013,
this [c]ourt imposed a sentence of fifteen to thirty years of
incarceration on Attempt[ed] Murder, and concurrent sentences
of five to ten years of incarceration on Aggravated Assault and
one to two years of incarceration on VUFA 6106 and REAP, for a
total sentence of fifteen to thirty years of incarceration.
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On January 6, 2014, [Appellant] filed a timely appeal to the
Superior Court arguing that a pre-trial ruling regarding the
admission of prior bad acts was in error.1 On July 21, 2014[,
Appellant] entered into a negotiated guilty plea in two unrelated
cases, CP-51-CR-0005759-2013 and CP-51-CR-0005760-2013, to
Third-Degree Murder, Attempt[ed] Murder, and VUFA 6106 for a
cumulative term of twenty to forty years of incarceration.2 On
August 5, 2015, the Superior Court ruled that the motion court
abused its discretion in regards to the 404(b) evidence and
remanded this case for a new trial.
1On January 11, 2013, the Honorable Earl Trent heard
the pre[-]trial motions and ruled that evidence
regarding another robbery was admissible, finding
that its probative value outweighed its prejudicial
impact.
2 [Appellant] was sentenced in CP-51-CR-0005759-
2013 to twenty to forty years of incarceration for
Third-Degree Murder and a concurrent period of one
to five years of incarceration on VUFA 6106.
[Appellant] was sentenced concurrently in CP-51-CR-
0005760-2013 to nineteen to forty years of
incarceration on Attempt[ed] Murder. That [c]ourt
ordered the sentence served under CP-51-CR-
0005759-2013 to be served consecutively to the
fifteen to thirty year sentence imposed by this [c]ourt
for a cumulative sentence of thirty five to seventy
years of incarceration.
On June 23, 2016, [Appellant] entered into an open guilty
plea before this [c]ourt on Attempt[ed] Murder, Aggravated
Assault, VUFA 6106, and REAP[1]. On September 7, 2016, the
[c]ourt imposed a sentence of ten to twenty years on Attempt[ed]
Murder and two to four years of incarceration on VUFA 6106,3 for
a cumulative sentence of ten to twenty years of incarceration, to
be served consecutive[ly] to the unrelated sentences on CP-51-
CR-0005759-2013 and CP-51-CR-0005760-2013. [Appellant] did
not file a direct appeal.
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1 18 Pa.C.S. §§ 2502(a), 2702(a), 6106(a)(2), and 2705, respectively.
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3 This [c]ourt imposed no further penalty on
Aggravated Assault and REAP.
On October 2, 2017, [Appellant] filed a timely pro se Post-
Conviction Relief Act (“PCRA”) petition. On January 24, 2018,
appointed PCRA counsel filed an amended petition. On January
25, 2018, after finding [Appellant’s] claims meritless, this [c]ourt
issued a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907.
On February 13, 2018, [Appellant] filed a response to the 907
Notice.4
4 Though [Appellant] asserts in his response that he
believes the [c]ourt mistakenly imposed a consecutive
sentence, he offers no new claims.
PCRA Court Opinion, 3/8/18, at 1-2.
On March 8, 2018, the PCRA court dismissed Appellant’s PCRA petition.
On March 17, 2018, Appellant filed a motion to reconsider the PCRA court’s
March 8, 2018 order, which the PCRA court denied on March 20, 2018.
Appellant filed a notice of appeal on March 29, 2018, followed by a Pa.R.A.P.
1925(b) statement. The docket entries reflect that the Pa.R.A.P. 1925(a)
opinion filed was the same opinion that was filed March 8, 2018.
Appellant presents the following issues for our review:
1. Did the [PCRA] court judge commit error or abuse its discretion
by denying the Appellant’s request to file a direct appeal, nunc pro
tunc, from the judgment of sentence that was imposed upon
[Appellant] in this matter on September 7, 2016 where his trial
attorney in this matter failed to file such a direct appeal from that
sentence of ten (10) to twenty (20) years, consecutive to
[Appellant’s] previously imposed negotiated sentence of twenty
(20) to forty (40) years in CP-51-CR-0005759-2013 and CP-51-
CR-0005760-2013.
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2. Did the [PCRA] court[2] commit error or an abuse of discretion
by refusing to conduct an evidentiary hearing on the Appellant’s
Motion for Reconsideration of the lower court’s Order of March 8,
2018, where the [PCRA] court could have heard testimony at such
a hearing which would have been helpful to it in more fairly and
justly adjudicating [Appellant’s] sentence, including the following:
a. Testimony from prior defense counsel as to
[Appellant’s] limited intelligence and why [Appellant]
misunderstood the terms of his open guilty plea and
expected greater leniency from the trial court judge
than what he ultimately received at sentencing;
b. Testimony from a mental health expert, or his
mental health report, who could testify as to what
abilities and disabilities would be characteristic of an
individual with an IQ level of 63, such as [Appellant],
who was classified as either “mentally retarded” or
“mentally disabled,” a phrase that was used later in
the field of psychoanalytics.
c. Testimony from the Appellant himself as to what he
claims to have understood from his conversations with
prior defense counsel, both before and at the time of
his open guilty plea hearing on June 23, 2016 and his
sentencing hearing on September 7, 2016.
Appellant’s Brief at 3-4.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
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2 Appellant incorrectly refers to the lower court as the trial court. As
illustrated, however, Appellant is challenging the PCRA court’s action following
the entry of the order denying his PCRA petition.
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record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
In his first issue as listed in his brief’s statement of questions involved,
Appellant asserts that the PCRA court erred by denying his request to file a
direct appeal, nunc pro tunc, from his judgment of sentence, where his
attorney failed to file a direct appeal. Appellant’s Brief at 3. Further, in the
summary of the argument section of his brief, Appellant maintains that the
PCRA court erred in denying his request to file an appeal, nunc pro tunc, where
Appellant had a discussion with his attorney prior to and after his plea of guilty
that would lead Appellant to believe that a direct appeal would be filed for
him. Id. at 10. Appellant’s Pa.R.A.P. 1925(b) statement also lists as his first
issue counsel’s ineffectiveness for failure to file a direct appeal following
Appellant’s request that he file an appeal. Pa.R.A.P. 1925(b) Statement,
4/5/18, at 1. Thus, it appears that Appellant is making an argument that
counsel was ineffective for failing to file a direct appeal when Appellant had
requested that he do so.
In the argument section of his brief, however, Appellant varies his
argument and asserts that the PCRA court erred in denying his request to file
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a direct appeal nunc pro tunc because he did not voluntarily and intelligently
enter his plea. Appellant’s Brief at 11-14. Appellant did not assert in his
Pa.R.A.P. 1925(b) statement, however, that he should be permitted to file a
direct appeal nunc pro tunc based on an unknowing and unintelligent entry of
a guilty plea. Pa.R.A.P. 1925(b) Statement. Because Appellant did not raise
this claim in his Pa.R.A.P. 1925(b) statement, it is waived. See
Commonwealth v. Hill, 16 A.3d 484, 491 (Pa. 2011) (quoting
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)) (“Any issues not
raised in a Pa.R.A.P. 1925(b) statement will be deemed waived.”). Thus, only
Appellant’s claim that counsel was ineffective for failing to file a direct appeal
pursuant to Appellant’s request has been preserved for our review.
Furthermore, despite preserving and raising the issue regarding
counsel’s ineffectiveness for failure to file a direct appeal per his request,
Appellant has failed to develop it. As a result, such claim is waived. See
Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009) (finding claims
waived “for failure to develop them in any meaningful fashion capable of
review”); Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super.
2017) (“It is well-established that [w]hen issues are not properly raised and
developed in briefs, when the briefs are wholly inadequate to present specific
issues for review, a court will not consider the merits thereof.”).
Assuming arguendo that the issue was not waived for failure to develop
it, we would conclude that Appellant’s claim is meritless. Our Supreme Court
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has explained the following in addressing an ineffective assistance of counsel
claim:
To prevail in a claim of ineffective assistance of counsel, a
petitioner must overcome the presumption that counsel is
effective by establishing all of the following three elements, as set
forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
975–76 (1987): (1) the underlying legal claim has arguable
merit; (2) counsel had no reasonable basis for his or her action or
inaction; and (3) the petitioner suffered prejudice because of
counsel’s ineffectiveness.
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). “In order to meet
the prejudice prong of the ineffectiveness standard, a defendant must show
that there is a ‘reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’”
Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). An allegation
of ineffective assistance of counsel will fail if the petitioner does not meet any
of the three prongs. Commonwealth v. Williams, 863 A.2d 505, 513 (Pa.
2004). “The burden of proving ineffectiveness rests with Appellant.”
Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).
Appellant’s cursory averment that he asked trial counsel to file a direct
appeal on his behalf, and counsel failed to do so, is insufficient to satisfy
Appellant’s burden. “[B]efore a court will find ineffectiveness of trial counsel
for failing to file a direct appeal, Appellant must prove that he requested an
appeal and that counsel disregarded this request.” Commonwealth v.
Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999). “A mere allegation will not
suffice to prove that counsel ignored a petitioner’s request to file an appeal.”
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Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006) (citing
Harmon, 738 A.2d at 1024.). Appellant presents no evidence supporting his
claim that he directed counsel to file a direct appeal. Thus, this claim lacks
merit.
Moreover, to the extent that Appellant may aver that even in the
absence of a request by a defendant, counsel may still be ineffective for failing
to file a direct appeal, his claim lacks merit. This Court in Commonwealth
v. Touw, 781 A.2d 1250 (Pa. Super. 2001) summarized the United States
Supreme Court case of Roe v. Flores-Ortega, 528 U.S. 470 (2000), as
follows:
If counsel has not consulted with the defendant, the
court must in turn ask a second, and subsidiary,
question: whether counsel’s failure to consult with the
defendant itself constitutes deficient performance.
That question lies at the heart of this case: Under
what circumstances does counsel have an obligation
to consult with the defendant about an appeal?
The Court answered this question by holding:
[C]ounsel has a constitutionally-imposed duty to
consult with the defendant about an appeal when
there is reason to think either (1) that a rational
defendant would want to appeal (for example,
because there are nonfrivolous grounds for appeal),
or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in
appealing. In making this determination, courts must
take into account all the information counsel knew or
should have known.
A deficient failure on the part of counsel to consult with the
defendant does not automatically entitle the defendant to
reinstatement of his or her appellate rights; the defendant must
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show prejudice. The Court held that “to show prejudice in these
circumstances, a defendant must demonstrate that there is a
reasonable probability that, but for counsel’s deficient failure to
consult with him about an appeal, he would have timely
appealed.”
Touw, 781 A.2d at 1254 (quoting Roe, 528 U.S. at 480).
Where no request has been made, an appellant must
establish that a duty to consult was owed. Under Roe and Touw,
an appellant may establish a duty to consult by indicating issues
that had any potential merit for further review.
Commonwealth v. Bath, 907 A.2d 619, 623 (Pa. Super. 2006).
Appellant does not assert that counsel failed to consult with him about
an appeal. Additionally, Appellant has failed to establish that a consultation
was owed. Appellant has failed to indicate any issues that had potential merit
for further review. Bath, 907 A.2d at 623. Therefore, we conclude that
Appellant has not met his burden of establishing prejudice by counsel’s failure
to consult with him regarding a direct appeal. In the absence of prejudice, we
cannot find that counsel was ineffective.3 Thus, even if Appellant’s claim is
not deemed waived, he would not be entitled to relief.
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3 We are cognizant of the holding in Commonwealth v. Liebel, 825 A.2d 630
(Pa. 2003), and its progeny, which eliminated the requirement of proof of
prejudice in an ineffective assistance of counsel claim regarding a failure to
file a direct appeal. Liebel applies only where the appellant has requested
the filing of a petition for allowance of appeal and counsel has failed to comply.
Bath, 907 A.2d at 623 (Pa. Super. 2006). Because this analysis is conducted
on the basis of Appellant’s claim that counsel was required to file a direct
appeal, absent Appellant’s request, it is inapplicable.
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In the second issue presented in his brief, Appellant argues that the
PCRA court erred or abused its discretion by refusing to conduct an evidentiary
hearing on his motion for reconsideration of the PCRA court’s denial of his
PCRA petition. Appellant’s Brief at 3. Appellant maintains that if an
evidentiary hearing had been held, the PCRA court would have heard
testimony that would have been helpful to it “in more fairly and justly
adjudicating [Appellant’s] sentence.” Id. Specifically, Appellant maintains
that there would have been testimony regarding Appellant’s limited
intelligence, Appellant’s IQ and Appellant’s testimony as to “what he claims to
have understood from his conversations with prior defense counsel, both
before and at the time of his open guilty plea hearing on June 23, 2016[,] and
his sentencing hearing on September 7, 2016.” Id. at 3-4.
Review of Appellant’s pro se PCRA petition and amended PCRA petition,
however, reflects the absence of any assertion of the PCRA court’s error for
failing to hold an evidentiary hearing on Appellant’s motion for reconsideration
in order to hear testimony related to Appellant’s limited intelligence or any
intellectual disability. Pro Se PCRA Petition, 10/2/17, at 1-3; Amended PCRA
Petition, 1/24/18, at 1-10. Further, Appellant’s Pa.R.A.P. 1925(b) statement
includes a claim that the trial court erred in denying Appellant’s motion for
reconsideration without holding an evidentiary hearing to hear testimony from
Appellant’s trial attorney regarding Appellant’s expectations related to
sentencing. Pa.R.A.P. 1925(b) Statement, 4/5/18, at 1-3. No assertion was
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made therein that the PCRA court erred in failing to hold an evidentiary
hearing in order to gather evidence regarding an alleged intellectual disability.
Id. Thus, to the extent that Appellant argues on appeal that the PCRA court
erred in dismissing Appellant’s motion for reconsideration without holding an
evidentiary hearing regarding Appellant’s intellectual disability, such claim is
waived. See Commonwealth v. Washington, 927 A.2d 586, 601 (Pa.
2007) (claim raised for first time on motion for reconsideration of PCRA court’s
dismissal of PCRA petition is waived); Hill, 16 A.3d at 491.
Furthermore, had such claim not been waived, we would conclude that
the PCRA court did not err in failing to hold an evidentiary hearing on the
motion for reconsideration of the denial of the PCRA petition. We first note
that there is no right to an evidentiary hearing on a PCRA petition. See
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (“There is
no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA
court can determine from the record that no genuine issues of material fact
exist, then a hearing is not necessary.”) (citation omitted); Pa.R.Crim.P.
907(2). Here, Appellant has failed to demonstrate that any of the claims
presented to the PCRA court raised a genuine issue concerning any material
fact.
Moreover, there is no requirement that a PCRA court hold an evidentiary
hearing prior to denying a motion for reconsideration of an order denying a
PCRA petition. “A motion for reconsideration is not a post-trial motion. A
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motion for reconsideration is addressed to the sound discretion of the trial
court and may be filed within thirty days of the date of the order upon which
reconsideration is sought.” Ellenbogen v. PNC Bank, N.A., 731 A.2d 175 n.
7 (Pa. Super. 1999) (emphasis added) (quoting Moore v. Moore, 634 A.2d
163, 166 (Pa. 1993). A court is not required to act upon a motion for
reconsideration. Pa.R.A.P. 1701(b)(3). As this Court has explained in
addressing motions for reconsideration:
the filing of [a motion for reconsideration] does not toll the time
period for the filing of an appeal. Rather, preserving the trial
court’s discretion in this regard merely protects the trial court’s
prerogative to review its own decision within thirty days after its
issuance.
Vietri ex rel. Vietri v. Delaware Valley High School, 63 A.3d 1281, 1286
n. 3 (Pa. Super. 2013). Moreover, the comment to Pa.R.A.P. 1701(b)(3)
provides: “If the [motion for reconsideration] lacks merit the trial court ...
may deny [it] by the entry of an order to that effect or by inaction.” Pa.R.A.P.
1701(b)(3) cmt. (emphasis added). See also Commonwealth v. Moir, 766
A.2d 1253, 1254 (Pa. Super. 2000) (discussing Pa.R.A.P. 1701 and the
requirement that a motion for reconsideration must be expressly granted in
order to toll the appeal period).
Thus, it is clear that the PCRA court did not err in declining to grant
Appellant an evidentiary hearing on the motion to reconsider the denial of his
PCRA petition. There is no requirement that the PCRA court act on a motion
to reconsider; thus, it has no obligation to hold an evidentiary hearing on it.
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Moreover, the information and report regarding Appellant’s asserted
intellectual disability was presented to the trial court at the time of sentencing.
N.T. (Sentencing), 9/7/16, at 6-7, 18-20. The trial court at that time offered
sound reasons for the sentence it imposed. Id. at 25-28. Therefore, the
PCRA court committed no abuse of discretion in declining to give Appellant an
opportunity for a repeat performance.
Furthermore, assuming arguendo that Appellant had not waived his
claim that he expected a more lenient sentence, his claim would not warrant
relief. Appellant’s challenge to the alleged excessive harshness of his
sentence constitutes a challenge to the discretionary aspects of his sentence.4
“Challenges to the discretionary aspects of sentencing are not cognizable
under the PCRA.” Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super.
2007) (citing 42 Pa.C.S. § 9543(a)(2)(vii)). As such, we would be precluded
from reviewing Appellant’s discretionary aspects of sentencing claims.
Order affirmed.
Judge Murray joins the Memorandum.
P.J.E. Ford Elliott concurs in the result.
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4 “Upon entry of a guilty plea, a defendant generally waives all defects and
defenses except those concerning the validity of the plea, the jurisdiction of
the trial court, and the legality of the sentence imposed. However, when the
plea agreement is open, containing no bargain for a specific or stated term of
sentence, the defendant will not be precluded from appealing the discretionary
aspects of his sentence.” Commonwealth v. Boyd, 835 A.2d 812, 816 (Pa.
Super. 2003).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/19
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