Com. v. Grim, B. ( 2018 )

J-S45006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRADLEY RYAN GRIM, :
:
Appellant : No. 65 MDA 2018
Appeal from the Judgment of Sentence December 6, 2017
in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005646-2002
BEFORE: OTT, J., MUSMANNO, J., and PLATT*, J.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 03, 2018
Bradley Ryan Grim (“Grim”) appeals from the judgment of sentence
imposed after he was resentenced pursuant to Miller v. Alabama, 567 U.S.
460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).1 We
affirm.
On July 19, 2002, sixteen-year-old Grim and three other individuals
conspired to rob the residence of a local drug dealer. Under the pretense of
purchasing marijuana, Grim and one co-conspirator entered the residence
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1 In Miller, the United States Supreme Court held that sentencing schemes
which mandate life in prison without parole for defendants who committed their
crimes while under the age of eighteen violate the Eighth Amendment’s
prohibition on “cruel and unusual punishments.” Miller, 567 U.S. at 465. In
Montgomery, the United States Supreme Court has held that Miller’s
decision applies retroactively. Montgomery, 136 S. Ct. at 736.
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* Retired Senior Judge assigned to the Superior Court.
J-S45006-18
unarmed. The other two co-conspirators emerged from the bushes with
sawed-off shotguns and robbed the residence. During the robbery, a co-
conspirator shot and killed an individual in the residence.
On November 26, 2003, the a jury found Grim guilty of second-degree
murder, recklessly endangering another person, robbery, conspiracy to commit
burglary, and conspiracy to commit robbery.2 For his conviction of second-
degree murder, the trial court sentenced Grim to a mandatory term of life in
prison.3 This Court affirmed the judgment of sentence, and the Supreme Court
denied allowance of appeal. See Commonwealth v. Grim, 863 A.2d 1223(Pa. Super. 2004), appeal denied, 868 A.2d 451 (Pa. 2005). Grim filed
numerous Post Conviction Relief Act (“PCRA”) petitions, all of which were
denied. However, following the decisions in Miller and Montgomery, Grim
obtained PCRA relief, and a resentencing hearing was scheduled.
On December 6, 2017, Grim was resentenced to 30 years to life on the
murder charge. The trial court also granted Grim 5,551 days for time served.4
No post-sentence motions were filed. On January 9, 2018, Grim filed a pro se
Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
Errors complained of on appeal. On March 6, 2018, this Court remanded to
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2 See 18 Pa.C.S.A. §§ 2502(b), 2705, 3701(a)(1)(i),(ii), 903(a)(1),(2).
3 The sentences for the remaining convictions were imposed concurrently.
4 According to the trial court, Grim would have to serve less than 15 years to
reach his minimum release date. See Trial Court Opinion, 2/21/18, at 2.
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the trial court to determine whether counsel had abandoned Grim. Following
a hearing, the trial court determined that Grim preferred to have court-
appointed counsel for the direct appeal, and appointed Grim counsel. Grim,
through counsel, filed a Motion to Vacate to allow for the filing of a new concise
statement. On May 14, 2018, this Court denied Grim’s counsel’s Motion to
Vacate.
On appeal, Grim raises the following questions for our review:
1. The [trial court] did not afford [Grim] a proper resentencing
hearing under the Juvenile Lifer [statutes] established in
Miller [because]
a. The [trial court] did not utilize the opinion of [a] Mitigating
Expert [t]hat he [o]rdered that [Grim] be evaluated by[.]
However[,] the evaluation never took place [d]epriving
[Grim] of a fair informed decision by the [trial court] as
established in Miller.
b. The [trial court] limited how many [c]haracter witnesses
that [Grim] was allowed to speak on [Grim’s] behalf at
[his] resentencing hearing.
c. The [trial court] did not use diligence in reviewing other
resentencing hearings for Juvenile Lifers nor did the [trial
court] resentence [Grim] as an individual based on [his]
rehabilitation but on [ ] the actions of [his] codefendant.
2. [Grim’s] Attorney prejudiced [the] defense [w]hen she did not
utilize the Mitigating Expert [t]hat [Grim] was granted [in] order
to be evaluated by 9 months prior to [the] [r]esentencing
[h]earing.
Brief for Appellant at 4 (emphasis, quotation marks, and some capitalization
omitted).
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In his first claim, Grim challenges the discretionary aspects of his
sentence. “Challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[we] conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008) (quotation
marks and citations omitted).
Here, Grim has filed a timely Notice of Appeal, but he did not preserve
the issue at sentencing or in a motion to reconsider or modify the sentence.
Id. Thus, the issue is waived and cannot be reviewed on appeal. See
Commonwealth v. Evans, 901 A.2d 528, 534 (Pa. Super. 2006) (holding that
the defendant’s challenges to the discretionary aspects of sentencing were
waived because he failed to raise the claims at the sentencing hearing or file a
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post-sentence motion as mandated by Pa.R.Crim.P. 720).5
In his second claim, Grim argues counsel was ineffective at resentencing,
and that Grim’s direct appeal rights should be reinstated. Brief for Appellant
at 13. However, ineffectiveness claims should be raised in a timely petition for
relief filed pursuant to the PCRA. See Commonwealth v. Grant, 813 A.2d
726, 730 (Pa. 2002). Accordingly, this Court cannot review the claim on
appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/03/2018
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5 In its Opinion, the trial court set forth its reasons for the sentence. See Trial
Court Opinion, 2/21/18, at 4-7, 9-10; see also N.T., 12/6/17, at 33-38, 40-
41. To the extent that Grim raises a legality of sentence claim, we conclude
that Grim waived the claim for failing to develop it. See Pa.R.A.P. 2119(a).
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