Com. v. Figueroa-Narvarez, J. ( 2018 )

J-S64018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE L. FIGUEROA-NAVAREZ :
:
Appellant : No. 686 EDA 2018
Appeal from the PCRA Order January 17, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003208-2015,
CP-23-CR-0006348-2015, CP-23-CR-0006691-2015
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 13, 2018
Appellant, Jose L. Figueroa-Navarez, appeals pro se from the order
entered on January 17, 2018 in the Criminal Division of the Court of Common
Pleas of Delaware County that dismissed, without a hearing, his first petition
filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546.1 We affirm.
The PCRA court aptly summarized the factual and procedural history of
this case as follows:
The record in the instant case establishes that, on July 21, 2016,
Appellant entered into an open guilty plea before the [trial court
____________________________________________
1We note that the PCRA court order dismissing Appellant’s PCRA petition listed
three trial court docket numbers. On February 8, 2018, Appellant filed three
pro se notices of appeal, each of which contained all three trial court docket
numbers. On May 4, 2018, this Court dismissed as duplicative the appeals at
docket numbers 692 EDA 2018 and 693 EDA 2018.
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at] three separate docket numbers. Regarding docket number
6348-2015, Appellant pled to Count 2 [p]ossession with [i]ntent
to [d]istribute [c]ontrolled [s]ubstance ([c]ocaine - more than 73
grams). On docket number 3208-2015, Appellant pled to Count
3 [p]ossession with [i]ntent to [d]eliver (heroin); Count 4
[p]ossession with [i]ntent to [d]eliver (cocaine); Count 1
[p]ossession of a [c]ontrolled [s]ubstance; Count 2 [p]ossession
of a [c]ontrolled [s]ubstance; Count 5 [p]ossession of [d]rug
[p]araphernalia; and, Count 11 [d]riving with a [s]uspended
[l]icense. On docket number 6691-2015, Appellant pled guilty to
Count 1 [f]leeing or [e]luding [p]olice [o]fficer; Count 4
[r]ecklessly [e]ndangering [a]nother [p]erson; Count 9
[p]ossession of a [c]ontrolled [s]ubstance; and Count 19 [f]ailure
to [n]otify [l]aw [e]nforcement.
Counsel moved for immediate sentenc[ing] and [the trial court
imposed its sentence on the same day]. Prior to imposition of
sentence, defense counsel addressed the [trial c]ourt and
requested that the court take no position regarding Appellant’s
RRRI eligibility and leave the decision of eligibility to the
Department of Corrections. Notes of Testimony, 7/21/16, at 24-
25. On docket number 6348-2015 Appellant was sentenced to
sixty (60) to one hundred twenty (120) months[’] state
incarceration, $120[.00] in costs, $176[.00] lab fee, forfeiture of
$986[.00] and two cell phones, and credit for time served from
[September 29, 2015 through July 21, 2016]. Additionally, it was
noted that the [trial c]ourt recommended Appellant serve his time
at SCI Chester, that he was not boot camp eligible, and that
neither the [trial c]ourt nor the Commonwealth took a position on
Appellant’s RRRI eligibility. On docket number 3208-2015,
Appellant [received] an aggregate term of twenty-four (24) to
forty-eight (48) months[’] incarceration and three years of
probation. [Appellant’s term of incarceration at docket number
3208-2015 was to run consecutively to his sentence at docket
number 6348-2015.] It was noted on [docket number 3208-2015
] as well that neither the [trial c]ourt nor the Commonwealth took
a position on RRRI eligibility. Finally, on docket number 6691-
2015, Appellant was sentenced to an aggregate term of twelve
(12) to twenty-four (24) months[’] incarceration and one year
probation, [concurrent to his other sentences.] The sentencing
sheet for this docket number reflected once again that the [trial
c]ourt did not take a position on RRRI eligibility.
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Appellant was advised of his [p]ost-[s]entence [r]ights by
counsel, initialed and signed three [p]ost-[s]entence [r]ights
forms, and was [] again advised by the [trial c]ourt of his post-
sentence [r]ights. Specifically, the [trial c]ourt explained that
Appellant had ten days to file a [m]otion for [r]econsideration in
writing and [30] days to appeal [his conviction or sentence].
Appellant did not file a [m]otion for [r]econsideration or a [direct]
appeal.
On February 24, 2017, Appellant filed a pro se [PCRA p]etition
alleging [that] counsel was ineffective in failing to request the
[trial c]ourt to recommend RRRI eligibility. The [PCRA court]
appointed [counsel] and entered an [o]rder requiring counsel to
file an [a]mended PCRA petition or [n]o [m]erit letter pursuant to
[Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and]
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998). On
July 14, 2017, counsel submitted a [n]o [m]erit letter as well as
an [a]pplication for [w]ithdrawal of [a]ppearance. Counsel’s [n]o
[m]erit letter addressed two issues: 1) whether or not trial
counsel was ineffective in failing to request that the [trial c]ourt
recommend Appellant for RRRI eligibility and 2) whether or not
trial counsel was ineffective in failing to file post-sentence
motions. Th[e] second issue, although not included in Appellant’s
pro se PCRA, was raised by counsel upon Appellant’s request. On
August 18, 2017, the [PCRA c]ourt granted counsel’s application
to withdraw and filed a [n]otice of [i]ntent to [d]ismiss the PCRA
[p]etition without a [h]earing in [20 d]ays.
On August 30, 2017, Appellant filed a pro se [r]esponse in
[o]pposition to the [court’s] [n]otice of [i]ntent to [d]ismiss
arguing that the [PCRA court’s notice] only addressed one of
[Appellant’s] two PCRA issues[, i.e. the issue regarding RRRI
eligibility]. Appellant requested additional time to amend his
PCRA [petition] so that the [c]ourt [could] consider both issues.
Out of an abundance of caution, th[e PCRA c]ourt entered an
[o]rder on October 26, 2017 permitting [Appellant] to file an
[a]mended PCRA [petition] within [21] days. The [PCRA c]ourt
[undertook this course of action] even though it had reviewed
both issues raised in the counseled “no merit” letter and took both
issues into account when issuing its [n]otice of [i]ntent to
[d]ismiss. On November 17, 2017, Appellant filed his [a]mended
PCRA [petition] raising the issue of ineffective assistance of
counsel for failure to file post-sentence motions.
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The [PCRA c]ourt reviewed [Appellant’s a]mended PCRA [petition,
counsel’s no merit l]etter, [Appellant’s] initial PCRA [petition], and
the record as a whole and then filed its second [n]otice of [i]ntent
to [d]ismiss on December 28, 2017. In January [2018,] the
matter was administratively transferred to [a new trial judge]. On
January 10, 2018, Appellant filed a pro se [o]bjection to the
[December 28, 2017] [n]otice of [i]ntent to [d]ismiss raising the
same issues as [the] [a]mended PCRA [petition]. On January 18,
2018, th[e PCRA c]ourt issued an [o]rder denying Appellant’s
[petition]. On February 8, 2018, Appellant filed a [n]otice of
[a]ppeal [from the January 18, 2018 order.] On March 8, 2018,
[the PCRA c]ourt issued an [o]rder requiring Appellant to file a
[c]oncise [s]tatement of [errors] [c]omplained of on [a]ppeal
pursuant to Pa.R.A.P. 1925[. Appellant complied on] March 19,
2018[.]
PCRA Court Opinion, 4/4/18, at 1-4 (unpaginated).
In his brief to this Court, Appellant raises the following question for our
review:
Whether the [PCRA] court committed legal error in denying
[A]ppellant[’]s petition for post-conviction collateral relief,
without a hearing to properly fulfill [its] fact finding duty
regarding [A]ppellant[’]s claim of ineffective assistance of
counsel, for [A]ppellant[’]s defense counsel’s failure to file a
timely requested post-sentence motion to modify sentence.
Appellant’s Brief at 4.
We review an order denying collateral relief under the PCRA to
determine whether evidence of record supports the findings of the PCRA court
and whether its legal conclusions are free from error. Commonwealth v.
Mitchell, 105 A.3d 1257, 1265 (Pa. 2014). “The PCRA court's credibility
determinations, when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA court's legal
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conclusions.” Id., quoting Commonwealth v. Roney, 79 A.3d 595, 603 (Pa.
2013).
In this case, the PCRA court dismissed Appellant's petition without a
hearing. There is no absolute right to an evidentiary hearing. See
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On
appeal, we examine the issues raised in light of the record “to determine
whether the PCRA court erred in concluding that there were no genuine issues
of material fact and in denying relief without an evidentiary hearing.” Id.Appellant’s amended petition filed on November 17, 2017 requested
nunc pro tunc reinstatement of Appellant’s right to file post-sentence motions.
Specifically, the amended petition alleged that trial counsel was ineffective for
failing to file a requested post-sentence motion in a timely manner. Appellant
further alleged that trial counsel’s omission deprived Appellant of his right to
challenge certain discretionary aspects of his sentence on direct appeal.
Analogizing counsel’s failure to file a requested post-sentence motion to the
failure to file a requested direct appeal, Appellant claims that counsel’s
omission in this case qualifies as per se ineffectiveness. Accordingly, Appellant
maintains that he was entitled to an evidentiary hearing in order to prove that
he asked counsel to submit a post-sentence motion. No relief is due on
Appellant’s claim as he has failed to demonstrate that his petition raised a
genuine issue of material fact that required an evidentiary hearing.
Under Pennsylvania law, there are few instances where counsel’s acts
or omissions constitute per se ineffectiveness. These include: counsel’s
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failure to file a direct appeal when requested to do so by a client
(Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999)); counsel’s failure
to file a timely Rule 1925(b) statement when ordered to do so by a court
(Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005); Commonwealth v.
Brown, 145 A.3d 184, 186 (Pa. Super. 2016)); and, counsel’s failure to file a
petition seeking allowance of appeal with the Pennsylvania Supreme Court
when requested to do so by a client (Commonwealth v. Liebel, 825 A.2d
630 (Pa. 2003); Commonwealth v. Reeves, 923 A.2d 1119, 1129 (Pa.
2007)). Trial counsel’s failure to file a post-sentence motion, even if requested
to do so, is not per se ineffectiveness. See Reeves, 923 A.2d at 1129-1131
(post-conviction petitioner required to establish actual prejudice where
counsel’s alleged deficiency stemmed from failure to move for reconsideration
of sentence); Commonwealth v. Liston, 977 A.2d 1089, 1092 (Pa. 2009)
(clarifying that Supreme Court held in Reaves that failure to file
post-sentence motions “does not fall within the limited ambit of situations
where a defendant alleging ineffective assistance of counsel need not prove
prejudice to obtain relief”).
Instead, a PCRA petitioner alleging trial counsel’s ineffectiveness for
failure to file a post-sentence motion must satisfy the three-pronged test for
ineffectiveness. Reeves, supra. Thus, a PCRA petitioner bears the burden
of pleading and proving that trial counsel’s failure to file a post-sentence
motion prejudiced him; namely, that had counsel filed the post-sentence
motions, the sentencing court would have granted them. See Liston, supra.
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Appellant did not meet that burden, nor did he raise a genuine issue on this
claim.
Appellant’s submissions before the PCRA court do not address why the
trial court would have granted a motion to reconsider Appellant’s sentence.
Although Appellant expressed displeasure with the consecutive nature of his
sentences in his objections to the PCRA court’s Rule 907 notice, he offered no
reasons for why the trial court would have granted relief on this basis. The
consecutive nature of a sentencing scheme is rarely the basis for finding a
substantial question that the trial court acted outside sentencing norms or
contrary to the Sentencing Code, let alone abused its discretion in fixing a
particular punishment. See Commonwealth v. Moury, 992 A.2d 162,
171-172 (Pa. Super. 2010) (sentencing court has discretion to impose
sentences consecutively or concurrently and challenges to this exercise of
discretion do not raise a substantial question except in extreme
circumstances). Appellant failed to explain how his consecutive sentences
supported reconsideration of his punishment. In the absence of such a
showing, there was no basis on which to conclude that counsel’s conduct
caused any prejudice. Thus, the PCRA court correctly dismissed Appellant’s
petition without an evidentiary hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/18
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