Com. v. Devero, W. ( 2018 )

J-S57013-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WYNDEL DEVERO :
:
Appellant : No. 3976 EDA 2017
Appeal from the PCRA Order November 16, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007044-2011
BEFORE: PANELLA, J., PLATT*, J., and STRASSBURGER*, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 20, 2018
Wyndel Devero appeals, pro se, from the order entered in the
Philadelphia County Court of Common Pleas denying his first petition brought
pursuant to the Post Conviction Relief Act (“PCRA”), 18 Pa.C.S.A. §§ 9541-
9546, without a hearing. We affirm.
Due to our disposition of this matter, a detailed recitation of the factual
and procedural history of this case is unnecessary. Briefly, in September 2012,
Appellant pled guilty to robbery, conspiracy to commit robbery, and
possessing an instrument of crime and was immediately sentenced to an
aggregate term of 8½ to 23 months imprisonment, followed by 17 years’
probation. Appellant was immediately paroled. Shortly thereafter, Appellant
was charged with aggravated assault.
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* Retired Senior Judge assigned to the Superior Court.
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As a result of his new charge, a parole and probation violation hearing
was held pursuant to Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973).1
The court determined Appellant violated the terms of his probation and parole,
revoked his parole and ordered Appellant to serve the remainder of his back
time on his robbery conviction. The court also revoked Appellant’s
probationary sentences and resentenced him to an aggregate term of 10 to
20 years’ imprisonment, followed by 5 years’ probation.
Appellant appealed. A panel of this Court affirmed Appellant’s judgment
of sentence and our Supreme Court denied allowance of appeal. See
Commonwealth v. Devero, No. 368 EDA 2014 (Pa. Super., filed Nov. 05,
2014) (unpublished memorandum).
On February 1, 2016, Appellant filed a series of pro se PCRA petitions,
alleging his initial probationary sentence was illegal, he was illegally
resentenced in violation of Alleyne v. United States, 570 U.S. 99 (2013),
and that his resentencing violated the double jeopardy clause of the United
States and Pennsylvania Constitutions. The PCRA court appointed counsel who
later filed a Turner/Finley2 “no merit” letter and a motion to withdraw. Based
on counsel’s “no-merit” letter and its independent review of the record, the
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1 Kates permits parole and probation revocation hearings based on an alleged
“direct violation” of probation or parole in situations where the alleged
violation is premised upon conduct that is the subject of an open criminal case.
See 305 A.2d at 709.
2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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PCRA court issued its notice of intent to summarily dismiss the petition.
Appellant did not respond to the PCRA court’s notice. The court later permitted
counsel to withdraw and dismissed Appellant’s petition. This timely appeal
follows.
On appeal, Appellant raises the following issues:
I. Did the [t]rial [c]ourt err and abuse its discretion when it
imposed a sentence of ten (10) to twenty (20) years
imprisonment, plus five (5) years probation when it failed to
properly wait until the final disposition of the new criminal
charges…. Thus, in violation of the [p]robation and [p]arole
[s]tatute.
II. Did the [t]rial [c]ourt err in denying Appellant’s [PCRA]
[p]etition since trial counsel was constitutionally ineffective for
failing to object to the [c]ourt’s assertion that [Appellant’s]
acceptance of responsibility for an Aggravated Assault … was
enough to revoke the [p]robation and [p]arole and resentence
him to a term of imprisonment without following the statutory
requirements pursuant to 61 Pa.C.S.A. § 6138. Thus, violating
[Appellant’s] rights under both the Sixth and Fourteenth
Amendments.
III. Did the [t]rial [c]ourt err in denying Appellant’s [PCRA]
[p]etition since direct appeal counsel was constitutionally
ineffective for failing to challenge the fact that the [t]rial [c]ourt
erred and abused it’s [sic] discretion when it revoked
[p]robation and [p]arole … and resentenced [Appellant] prior
to the disposition of new criminal charges … where he was
found to be [n]ot [g]uilty. Thus a violation of [Appellant’s] right
to due process pursuant to the Fourteenth Amendment.
Appellant’s Brief, at 3, ¶¶ I-III.
Prior to reaching the merits of any of Appellant’s claims, we must
determine whether he has properly preserved these claims for our review.
Appellant’s first issue raises claims of trial court error.
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The PCRA, however, procedurally bars claims of trial court error,
by requiring a petitioner to show the allegation of error is not
previously litigated or waived. 42 Pa.C.S.A. §§ 9543(a)(3), 9544.
At the PCRA stage, claims of trial court error are either previously
litigated (if raised on direct appeal) or waived (if not).
Commonwealth v. Spotz, 18 A.3d 244, 260-61 (Pa. 2011)
(rejecting claims of trial court error as either previously litigated
where raised on direct appeal or waived where not raised direct
appeal).
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015)
(en banc).
Appellant failed to raise this issue on direct appeal. So, we find that
issue waived.
Appellant raises his remaining claims, of counsel’s ineffectiveness, for
the first time in his Rule 1925(b) statement. Because Appellant failed to
present either of these claims to the PCRA court, these claims have not been
properly preserved for our review. See Pa.R.A.P. 302(a); Commonwealth v.
Mason, 130 A.3d 601, 626 (Pa. 2015) (finding the failure to include issues in
PCRA petition constitutes waiver).
Thus, we find Appellant has waived all of his issues on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/18
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