Com. v. Williams, H. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
HENRY L. WILLIAMS, No. 1945 MDA 2018
Appellant
Appeal from the PCRA Order Entered October 25, 2018,
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0001747-2010
BEFORE: LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 12, 2019
Henry L. Williams appeals from the October 25, 2018 order denying in
part, and dismissing in part, his petition filed pursuant to the Post Conviction
Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we
affirm.
The relevant facts and extensive procedural history of this case were set
forth by the PCRA court in its October 25, 2018 opinion and need not be
reiterated here. (See PCRA court opinion, 10/25/18 at 2-3.) In sum, on
April 19, 2011, a jury found appellant guilty of corrupt organizations, criminal
conspiracy, criminal use of a communication facility, and four counts of
possession with intent to deliver a controlled substance.' On August 4, 2011,
' 18 Pa.C.S.A. §§ 911(b)(3)-(4), 903, 7512(a), and 35 P.S. § 780-113(a)(30),
respectively.
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the trial court sentenced appellant to an aggregate term of 11 to 22 years'
imprisonment, which included several mandatory minimum sentences based
on the weight of drugs involved. On May 8, 2013, this court affirmed
appellant's judgment of sentence, and our supreme court denied appellant's
petition for allowance of appeal on November 19, 2013. See Commonwealth
v. Williams, 81 A.3d 993 (Pa.Super. 2013) (unpublished memorandum),
appeal denied, 80 A.3d 777 (Pa. 2013).
While appellant's direct appeal was pending, the Supreme Court of the
United States decided Alleyne v. United States, 570 U.S. 99 (2013), on
June 17, 2013.2 Thereafter, on December 4, 2014, appellant filed a timely
pro se PCRA petition. Counsel was appointed and filed an amended petition
on appellant's behalf on August 14, 2015. In light of Alleyne and its progeny,
the PCRA court granted appellant's PCRA petition, vacated his August 4, 2011
judgment of sentence, and ordered that appellant be resentenced. On
2 In Alleyne, the Supreme Court held, "[a]ny fact that, by law, increases the
penalty for a crime is an 'element' that must be submitted to the jury and
found beyond a reasonable doubt." Alleyne, 570 U.S. at 102. In applying
Alleyne, this court has held that, generally, Pennsylvania's mandatory
minimum sentencing statutes are unconstitutional because the mandatory
sentencing statutes "permit[] the trial court, as opposed to the jury, to
increase a defendant's minimum sentence based upon a preponderance of the
evidence" standard. Commonwealth v. Newman, 99 A.3d 86, 98
(Pa.Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015). The
Newman court further held that if a defendant's case was pending on direct
appeal when Alleyne was decided, that defendant was entitled to retroactive
application of Alleyne. Id. at 90. Thereafter, in Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015), our supreme court reiterated that
Pennsylvania's drug trafficking mandatory minimum sentences were
unconstitutional under Alleyne. Id. at 262.
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October 16, 2015, appellant was resentenced to an aggregate term of 11 to
22 years' imprisonment. On October 26, 2015, appellant filed a timely
post -sentence motion challenging the discretionary aspects of his sentence,
which was denied on October 28, 2015. On November 23, 2016, a panel of
this court affirmed appellant's judgment of sentence, and appellant did not
seek allowance of appeal with our supreme court. See Commonwealth v.
Williams, 151 A.3d 621 (Pa.Super. 2016).
Appellant filed the instant pro se PCRA petition on September 5, 2017,
and counsel was appointed to represent him. Counsel's appointment was
rescinded, and Lea T. Bickerton, Esq. ("PCRA counsel"), entered her
appearance on behalf of appellant. PCRA counsel filed an amended petition
on appellant's behalf on April 30, 2018. On June 15, 2018, the PCRA court
provided appellant with notice of its intention to dismiss his petition without a
hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant filed a response to the
PCRA court's Rule 907 notice on July 16, 2018. Thereafter, on October 25,
2018, the PCRA court issued a comprehensive opinion and order denying
appellant's PCRA petition, in part, and dismissing the petition, in part,
concluding the petition was timely filed with respect to the resentencing
issues. This timely appeal followed on November 26, 2018.3
3 The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b). On
December 3, 2018, the PCRA court filed a one -page Rule 1925(a) opinion
indicating that it was relying on the reasoning set forth in its October 25, 2018
opinion.
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Appellant raises the following issues for our review:
1. Did the PCRA [c]ourt err by denying
[appellant's] claims regarding ineffective
assistance of resentencing and 2016 appeal
counsel[4] without a hearing?
2. Did the PCRA court err by dismissing the rest of
[appellant's] claims as untimely filed?
Appellant's brief at 7.
Proper appellate review of a PCRA court's dismissal of a PCRA petition
is limited to the examination of "whether the PCRA court's determination is
supported by the record and free of legal error." Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). "The PCRA court's
findings will not be disturbed unless there is no support for the findings in the
certified record." Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). "This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding." Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted). Additionally, "[i]t is within the
PCRA court's discretion to decline to hold a hearing if the petitioner's claim is
patently frivolous and has no support either in the record or other evidence."
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (citations
omitted).
4 Appellant was represented during his 2015 resentencing and subsequent
appeal by Joseph J. Kenneff, Esq. (hereinafter, "Attorney Kenneff" or
"resentencing counsel").
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"The timeliness of a PCRA petition is a jurisdictional requisite."
Commonwealth v. Ba!lance, 203 A.3d 1027, 1031 (Pa.Super. 2019)
(citation omitted). "Pennsylvania law makes clear no court has jurisdiction to
hear an untimely PCRA petition." Id. All PCRA petitions, including second and
subsequent petitions, must be filed within one year of when a defendant's
judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). "[A]
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review." 42 Pa.C.S.A. § 9545(b)(3).
An otherwise untimely -filed PCRA petition will be excused if a petitioner
satisfies one of the following three statutory exceptions to the PCRA time -bar
enumerated in Section 9545(b)(1):
(i) the failure to raise the claim previously was the
result of interference by government officials
with the presentation of the claim in violation of
the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated
were unknown to the petitioner and could not
have been ascertained by the exercise of due
diligence; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the
United States or the Supreme Court of
Pennsylvania after the time period provided in
this section and has been held by that court to
apply retroactively.
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42 Pa.C.S.A. § 9545(b)(1).
In the instant matter, appellant contends in his amended PCRA petition
that an evidentiary hearing is warranted because: (1) trial counsel was
ineffective for "failing to challenge the use of testimony alone to establish the
existence of controlled substances"; (2) trial counsel was ineffective for
"failing to challenge the improper and otherwise incorrect sentencing
guidelines information"; (3) "First Direct Appeal counsel" and "Second Direct
Appeal counsel" were ineffective for "failing to challenge the sufficiency and
weight of the evidence"; (4) "First Direct Appeal counsel" was ineffective for
"failing to raise these first four issues in the first PCRA"; (5) resentencing
counsel, Attorney Kenneff, was ineffective for "failing to properly advocate at
the [re]sentencing hearing"; (6) prior counsel, including Attorney Kenneff,
were ineffective for failing to object to the imposition of the $25,000.00 fine;
and (7) prior counsel were ineffective for "failing to challenge the
constitutionality of the driver['s] license suspensions[.]" (Amended PCRA
Petition, 4/30/18 at 1111 1-7.)
Following our careful review of the record, including the briefs of the
parties, the applicable law, and the well -reasoned opinion of the Honorable
David L. Ashworth, we discern no error on the part of the PCRA court in
denying in part, and dismissing in part, appellant's PCRA petition without an
evidentiary hearing. The PCRA court opinion comprehensively addresses and
disposes of appellant's claims. Accordingly, we adopt this opinion as our own
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and affirm the PCRA court's October 25, 2018 order on the basis of the reasons
stated therein. (See PCRA court opinion, 10/25/18 at 10-13 (concluding that
appellant's October 16, 2015 resentencing did not change the date his
judgment of sentence became final); id. at 14-15 (concluding that any issues
raised with respect to his trial, first sentencing, and first direct appeal were
untimely raised and the court had no jurisdiction to review them, but that
appellant's allegations of ineffective assistance of resentencing counsel,
Attorney Kenneff, were timely raised and cognizable); and id. at 16-20
(concluding that appellant failed to establish by a preponderance of the
evidence that Attorney Kenneff failed to properly advocate on his behalf at the
resentencing hearing or that he suffered prejudice because of any alleged
inaction of counsel).)5
Order affirmed.
5 We note that Attorney Kenneff had no reasonable basis to object to the
imposition of a $25,000 fine, as the record clearly established that the
resentencing court had the benefit of a pre -sentence investigation report and
heard testimony that appellant will be trained and employed as an
HVAC technician upon his release. (See notes of testimony, 10/16/15 at
6-10.) See Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super.
2014) (stating that, to prevail on an ineffectiveness claim, a petitioner must
establish, inter alia, that "the underlying claim has arguable merit[.]"
(citation omitted)), appeal denied, 104 A.3d 523 (Pa. 2014). Additionally,
to the extent appellant argues in his brief that the PCRA court erred in
dismissing his petition because "[t]he first PCRA court didn't comply with
Pa.R.Crim.P. 905 and did not provide notice of the alleged defects in the
pro se petition" (see appellant's brief at 23-29), we find this claim waived.
See Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (stating,
"a claim not raised in a PCRA petition cannot be raised for the first time on
appeal.").
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Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 08/12/2019
_8
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BY: ASHWORTH, J., OCTOBER 25, 2018
Before tho Court is Henry L. Williams' counseled petition filed pursuant lo the
Post Conviction Collateral Relief Act (PCRA). 42 Pa. C.SA. §§ 9541-9546. For the
reasons set forth below, this petition will be denie81 A.3d 993 (Pa. Super. 2013)
4Williams was sentenced as follows: Count 1, corrupt organizations, 2 to 4 years'
incarceration; Count 2, conspiracy, 5 to 10 years' incarceration; Count 3. PWID, 4 to 8 years'
incarceration; Count 4, PWID, 5 to 10 years' incarceration; Count 5, PWID. 5 to 10 years'
incarceration; Count 6, PWID, 5 to 10 years' incarceration: and Count 7, criminal use of
communication facility, 1 to 2 years' incarceration. Counts 2, 5 and 7 were made consecutive to
one another, resulting in an aggregate sentence of 11 to 22 years' incarceration.
5The Commonwealth had filed a notice of mandatory sentencing, pursuant to 18 Pa.
C.S.A. § 7508(b) and 18 Pa. C.S.A. § 6317(b), on May 20, 2010
6
The Court affirmed based on the published decision in the companion case of
Commonwealth v. Huggins, 68 A.3d 962 (Pa. Super. 2013), which held that: (1) as a matter
of first impression, the rules of evidence do not preclude a single witness from offering opinions
in his capacity as both a lay and expert witness on matters that may embrace ultimate issues to
be decided by the fact-finder; and (2) allowing a drug enforcement agent to testify as both an
expert and a layperson was not improper.
4
(Table). Williams filed an application requesting reconsideration or re-argument en
bane, which was denied on July 11, 2013. Williams' petition for allowance of appeal
was denied by the Supreme Court of Pennsylvania on November 19, 2013. See
Commonwealth v. Williams, 622 Pa. 760, BO A.3d 777 (Pa. 2013) (Table).
On December 4, 2014,7 Williams filed a timely prose petition for post conviction
collateral relief. In his filing, Williams claimed his attorney was ineffective for failing to
challenge the sufficiency of the evidence to support his convictions for conspiracy and
criminal use of a communication facility. See 2014 PCRA Memorandum of Law at 6-
15. Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal Procedure, counsel
was appointed on December 10, 2014, to represent Williams on his collateral claims
and was granted leave to file an amended petition, if appropriate, by February 13, 2015.
While Williams' direct appeal had been pending, the United States Supreme
Court announced its decision in Alleyne v. United States, 570 U.S. 99 (2013), which
held "that any fact that increases the mandatory minimum is an 'element' that must be
submitted to the jury'' and found beyond a reasonable doubt. Id. at 102, 116. The
Pennsylvania Superior Court in Commonwealth v. Watley, 81 A.3d 108, 117 (Pa.
Super. 2013), subsequently ruled that the Alleyne decision rendered those
Pennsylvania mandatory minimum sentencing statutes that did not pertain to prior
convictions unconstitutional insofar as they permitted a judge to automatically increase
7Williams' pleading was mailed on December 4, 2014, and docketed in the Clerk of
Courts on December 5, 2014. The petition was deemed filed on December 4, 2014, pursuant to
the "prisoner mailbox rule." See Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super.
2011) ("Under the prisoner mailbox rule, we deem a prose document filed on the date it is
placed in the hands of prison authorities for mailing.").
5
a defendant's sentence on a preponderance of the evidence standard. In
Commonwealth v. Newman, 99 A.3d 86, 101-02 (Pa. Super. 2014) (en bane), the
Superior Court held that the unconstitutional provisions of the mandatory minimum
sentencing statutes were not severable and that the statutes were therefore
unconstitutional as a whole. Additionally, the Superior Court found that Alleyne applies
retroactively to cases pending on direct appeal. Id. at 90.
Upon request by Williams, proceedings in this case were stayed pending a
decision by the Supreme Court of Pennsylvania in Commonwealth v. Hopkins, 632
Pa. 36, 117 A.3d 24 7 (2015), as to whether the unconstitutional provisions of the
mandatory minimum sentencing statutes were severable. On June 15, 2015, the
Supreme Court reaffirmed the Superior Court's severability analysis, rendering
Pennsylvania's drug trafficking mandatory minimum sentences unconstitutional. Id. at
61, 117 A.3d at 262.
Following the Pennsylvania Supreme Court's decision on June 15, 2015, an
amended petition was filed by PCRA counsel on August 14, 2015. In his amended
petition, Williams raised only one claim: whether the sentence imposed upon him was
illegal in light of Alleyne. Given that (1) Williams was sentenced to drug trafficking
mandatory minimum sentences, (2) such sentences had been held unconstitutional in
light of Alleyne, (3) Williams' direct appeal was still pending at the time the decision in
Alleyne was announced on June 17, 2013, and (4) Alleyne applies retroactively to
Williams, the Commonwealth conceded that re-sentencing was appropriate in this case.
See Commonwealth's Response to Amended Motion for PCRA Relief at 2.
6
Accordingly, on September 16, 2015, an Order was entered granting Williams'
amended PCRA petition and vacating his judgment of sentence of August 4, 2011. A
re-sentencing hearing was scheduled for October 16, 2015. At that time, Williams was
sentenced as follows: Count 1, corrupt organizations, 2 to 4 years' incarceration; Count
2, conspiracy, 5 to 10 years' incarceration; Count 3, PWID, 4 to 8 years' incarceration;
Count 4, PWI D, 2. 75 to 5. 5 years' incarceration; Count 5, PWI D, 5 to 10 years'
incarceration; Count 6, PWID, 2.75 to 5.5 years' incarceration; and Count 7, criminal
use of communication facility, 1 to 2 years' incarceration. As in 2011, Counts 2, 5 and 7
were made consecutive to one another, resulting in an aggregate sentence of 11 to 22
years' incarceration.8
Williams filed a counseled post-sentence motion on October 26, 2015,9 solely
challenging the consecutive nature of his sentence. By Order dated October 28, 2015,
I denied the motion. A timely notice of appeal to the Superior Court of Pennsylvania
was filed from that decision." See 2078 MDA 2015. In that appeal, Williams
8Williams was ineligible for a Recidivism Risk Reduction Incentive (RRRI) sentence due
to a prior robbery conviction.
9
Williams filed a prose "Motion for Post-Sentence Relief' on October 21, 2015. This
pleading was not accepted by the Court as Williams was represented by counsel, and a
criminal defendant has no constitutional right to hybrid representation on appeal. Such hybrid
representation has been expressly precluded by our Supreme Court. See Commonwealth v.
Jette, 611 Pa. 166, 23A.3d 1032, 1038-40 (2011); Commonwealth v. Pursell, 555 Pa. 233,
724 A.2d 293, 302 (1999); Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1139 (1993)
See also Pa.R.Crim.P. 576(A)(4).
10
Although represented by counsel, Williams filed a prose notice of appeal on
November 19, 2015. Based upon Superior Court Internal Operating Procedure 65.24 which
addresses hybrid representation in the context of a notice of appeal, the Court accepted the pro
se filing and found the appeal to be timely. Commonwealth v. Williams, 151 A.3d 621, 623-24
(Pa. Super. 2016).
7
challenged the sufficiency of the evidence as to the criminal conspiracy and possession
with intent to deliver counts, and he challenged the discretionary aspects of his
sentence.
On November 23, 2016, the Superior Court affirmed the judgment of sentence.
Specifically, as to the first appellate issue, the Court held that Williams waived his
challenge to the sufficiency of the evidence underlying his 2011 convictions because he
had already litigated a direct appeal challenging his convictions and judgment of
sentence.
In that appeal, [Williams] raised one issue challenging the trial
court's ruling that allowed an FBI agent to testify in his capacity as
both an expert and a lay witness. Pa. R.A.P. 1925(b) Statement,
8/24/11. This Court affirmed [Williams'] judgment of sentence in
a Judgment Order filed on May 8, 2013. Because [Williams] had
the benefit of a direct appeal, he is barred from raising any issues
other than a challenge to the sentence imposed on remand.
[Commonwealth v.] Anderson, 801 A.2d 1264,] 1266 [(Pa. Super.
2002)]. Accordingly, [Williams'] first issue wherein he challenges
the sufficiency of the evidence is waived for [Williams'] failure to
raise it in his first direct appeal.
Williams, 151 A.3d at 625.
Similarly, the appellate court held that Williams had waived his challenge to the
discretionary aspects of his sentence.
In his second issue, [Williams] alleges that the trial court abused its
discretion in applying an elevated offense gravity score ('OGS') that
was based on the weight of the controlled substances. A claim that
the sentencing court used an incorrect OGS is a challenge to the
discretionary aspects of one's sentence ....
[W]e are constrained to agree with the positions taken by both the
trial court and the Commonwealth that [Williams] failed to preserve
this challenge to the OGS at the time of sentencing or in a post-
sentence motion. A review of the record reveals that while [Williams]
did file a timely post-sentence motion, he never mentioned the OGS.
[Williams] only argued that his aggregate sentence was excessive
8
due to the individual sentences being ordered to run consecutively
as opposed to concurrently. Because the OGS was not raised in
any manner, we conclude [Williams] has waived this challenge to
the discretionary aspects of his sentence.
Williams, 151 A.3d at 625-26 (citations omitted). Williams did not seek allowance of
appeal to the Supreme Court of Pennsylvania.
On September 5, 2017, Williams filed a pro se petition for post conviction
collateral relief. In his filing, Williams claimed: (1) his trial attorney was ineffective for
failing to challenge the sufficiency of the evidence to support his conviction for criminal
use of a communication facility; and (2) his appellate counsel was ineffective for failing
to raise the trial court error "in failing to re-sentence [Williams] without imposing the
mandatory minimum jail sentence and failing to find§ 7508 unconstitutional in its
entirety." See 2018 PCRA Memorandum of Law at 1-2. Pursuant to Pa. R.Crim P.
904(A), Dennis C. Dougherty, Esquire, was appointed on September 14, 2017, to
represent Williams on his collateral claims and was granted leave to file an amended
petition, if appropriate, by November 17, 2017. Attorney Dougherty asked for an
additional 60 days to complete his review of the case and was given until January 17.
2018, to file an amended petition.
Thereafter, private counsel Lea Terlonge Bickerton, Esquire, entered her
appeara nee on behalf of Williams, 11 and Attorney Dougherty's appointment was
rescinded. Attorney Bickerton was granted leave until April 30, 2018, to file an
amended petition. The amended petition presently before the Court was filed on April
"Attorney Bickerton represented Williams for some part of his 2016 appeal to the
Superior Court. See Williams, 151 A.3d at 622.
9
30, 2018, and raises the following issues: (1) whether trial counsel was ineffective for
failing to challenge the use of testimony alone to establish the existence of controlled
substances; (2) whether trial counsel was ineffective for failing to challenge the
improper and otherwise "incorrect sentencing guidelines information"; (3) whether "First
Direct Appeal counsel" and "Second Direct Appeal counsel" were ineffective for failing
to challenge the sufficiency and weight of the evidence; (4) whether "First Direct Appeal
counsel" was ineffective for failing to raise these first four issues in the first PCRA; (5)
whether "Second Direct Appeal counsel" was ineffective for "failing to properly advocate
at the [second] sentencing hearing"; (6) whether "prior counsel" were ineffective for
failing to challenge the fine as excessive; and (7) whether "prior counsel" were
ineffective for failing to challenge the constitutionality of the driver license suspensions
Williams will face. See 2018 Amended PCRA Petition at ffll 1-7.
On May 29, 2018, the Commonwealth filed a timely response to the amended
PCRA petition raising a lack of jurisdiction due to the untimeliness of Williams' serial
petition and refuting the merits of Williams' ineffective assistance of counsel claims.
By Order dated June 15, 2018, Williams was given Notice pursuant to Pa. RCrim.P.
907 of this Court's intention to dismiss his serial PCRA petition without a hearing.
Williams filed an answer to the notice of dismissal on July 16, 2018.
II. Discussion
Before I may address the merits of Williams' argument, I must first consider the
timeliness of Williams' serial PCRA petition because it implicates the jurisdiction of this
10
Court. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014). Williams'
petition is governed by section 9545(b)(1) of the PCRA, which provides that all
petitions, including a second or subsequent petition, normally must be filed within one
year from the date the petitioner's judgment of sentence became final. 42 Pa. C.S.A. §
9545(b)(1).12 This time restriction is "jurisdictional in nature." Commonwealth v.
Albrecht, 606 Pa. 64, 67, 994 A.2d 1091, 1093 (2010) (citation omitted). Pennsylvania
law makes clear that when "a PCRA petition is untimely, neither [the Superior] Court nor
the trial court has jurisdiction over the petition." Commonwealth v. Seskey, 86 A.3d
237, 241 (Pa. Super. 2014) (citation omitted). "[Jurisdictional time] limitations are
mandatory and interpreted literally; thus, a court has no authority to extend filing periods
except as the statute permits." Commonwealth v. Jae kson, 30 A 3d 51 6, 519 (Pa.
Super. 2011) (quoting Commonwealth v. Fahy, 558 Pa. Super. 313, 329, 737 A.2d
214, 222 (1999)). "Without jurisdiction, [the courts] simply do not have the legal
authority to address the substantive claims." Seskey, supra at 241.
For purposes of the PCRA, a judgment of sentence becomes final at the
conclusion of direct review, including discretionary review in the Supreme Court of
Pennsylvania and the Supreme Court of the United States, or at the expiration of the
time for seeking such review. 42 Pa. C.S.A. § 9545(b)(3). See also Commonwealth v.
Jones, 54 A.3d 14, 17 (Pa. Super. 2012). A petitioner who seeks review in the U.S.
12Section 9545(b)(1) provides, in pertinent part:
(b) Time for filing petition.-
( 1) Any petition under this subchapter, including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final. ...
42 Pa. C.S.A. § 9545(b)(1) (emphasis added}.
11
Supreme Court has 90 days to do so after the Pennsylvania Supreme Court enters an
order denying relief. Commonwealth v. Monaco, 996 A.2d 1076, 1081 n.2 (Pa. Super.
2010); U.S. Sup.Ct.R. 13.
As discussed above, the Supreme Court of Pennsylvania denied Williams'
petition for allowance of appeal on November 19, 2013. See Williams, 622 Pa. 760,
80 A.3d 777. Pursuant to section 9545(b)(3) of the PCRA, Williams' judgment of
sentence became final for PCRA purposes 90 days later- on or about February 16,
2014 -when the time expired for Williams to file a petition for certiorari with the
Supreme Court of the United States. See 42 Pa. C.S.A § 9545(b)(3); U.S. Sup.Ct.R.
13. Accordingly, Williams had one year from February 16, 2014, in which to file a timely
PCRA petition.
Williams' prose petition was filed on September 5, 2017, over three and one-half
years after his judgment of sentence became final. Thus, this petition is facially
untimely unless Williams pleads and proves the applicability of one of the three
13
statutory exceptions to section 9545(b )( 1 ). Commonwealth v. Lawson, 90 A 3d 1 , 5
(Pa. Super. 2014).
Section 9545(b )( 1) perm its consideration of the merits of a facially untimely
PCRA petition where:
(l) the failure to raise the claim previously was the result of interference
by government officials with the presentation of the claim in violation of
the Constitution or laws of this Commonwealth or the Constitution or
laws of the United States;
13
As our Supreme Court has repeatedly stated, the petitioner maintains the burden of
pleading and proving that one of the exceptions to the time requirement applies.
Commonwealth v. Abu-Jamal, 596 Pa. 219, 227, 941 A.2d 1263, 1268 (2008).
12
(ii) the facts upon which the claim is predicated were unknown to the
petitioner and could not have been ascertained by the exercise of due
diligence; or
(iii) the right asserted is a constitutional right that was recognized by
the Supreme Court of the U n ited States or the Supreme Court of
Pennsylvania after the time period provided in this section and has
been held by that court to apply retroactively.
42 Pa. C.S.A. § 9545(b)(1)(i-iii). Williams, however, has failed to plead and prove any
exception to the one-year PCRA time bar.
Although Williams was resentenced on October 16, 2015, because he was
serving an illegal sentence for which this Court granted PCRA relief, this does not
change the date when the judgment of sentence became final. The relief granted on
Williams' initial PCRA petition, which was limited to resentencing, did not "reset the
clock" for purposes of calculating the date Williams' judgment of sentence became final
with respect to claims unrelated to the resentencing. Commonwealth v. McKeever,
947 A.2d 782, 785 (Pa. Super. 2008). See a/so Commonwealth v. Dehart, 730 A.2d
991, 993 n.2 (Pa.Super. 1999), appeal denied, 560 Pa. 719, 745 A.2d 1218 (1999)
(stating successful PCRA petition does not affect calculation of finality of judgment of
sentence where relief granted neither restored petitioner's direct appeal rights nunc pro
tune nor disturbed conviction, but affected petitioner's sentence only). As to six of the
seven claims raised by Williams, this is a serial petition whose timeliness must be
measured against the date Williams' original judgment of sentence became final -
February 16, 2014.
Williams argues, however, that in the first PCRA proceeding he was granted
relief on the Alleyne claim only while "the claims involving the trial, first sentencing, and
13
first direct appeal ... were never ruled upon." See Answer to Notice of Dismissal at ,i
1.1. In Williams' 2014 prose PCRA petition he claimed his trial attorney was ineffective
for failing to challenge the sufficiency of the evidence to support his convictions for
conspiracy and criminal use of a communication facility. See 2014 PCRA
Memorandum of Law at 6-15. In his amended counseled petition, Williams raised a
different claim: whether the sentence imposed upon him was illegal in light of Alleyne.
Williams' decision to not incorporate his initial prose petition into his counseled petition
operated as an abandonment of the ineffective assistance of counsel claim. Clearly, as
was his obligation, PCRA counsel examined the merits of Williams' prose claim and
determined the issue was not worth pursuing in the amended petition. See
Commonwealth v. Johnson, 179 A.3d 1153, 1157 (Pa. Super. 2018). Thus, the pro
se claim was not incorporated, and, in turn, was waived and not ruled upon by this
Court. Indeed, to have considered and disposed of it during the PCRA process would
have been trial court error. See Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1,
10 n.4 (2008) ("[A] criminal defendant currently represented by counsel is not entitled to
'hybrid representation' - i.e., he cannot litigate certain issues prose while counsel
forwards other claims."); Commonwealth v. Markowitz, 32 A.3d 706, 713 n.5 (Pa.
Super. 2011) ("[T]he PCRA court is only permitted to address issues raised in a
counseled petition."). Accordingly, the sole claim addressed by this Court was the one
contained in the counseled PCRA petition - the Alleyne sentencing issue. Any other
claims involving the trial, first sentencing, and first direct appeal were waived by
Williams in his first PCRA proceeding, and are now untimely.
14
There are, however, two claims raised by Williams which relate to the ineffective
assistance of resentencing counsel. In order to prevail on a claim of ineffective
assistance of counsel made in the post conviction context, a defendant must overcome
the presumption that counsel is effective by establishing by a preponderance of the
evidence that: the underlying claim has arguable merit; trial counsel had no reasonable
basis for proceeding as he did; and the defendant suffered prejudice. See 42
Pa.C.S.A. § 9543(a)(2)(ii): Commonwealth v. Spotz, 616 Pa. 164, 187, 47 A.3d 63, 76
(2012) (citing Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975-76
(1987)). The client has the burden of establishing counsel's ineffectiveness because
counsel is presumptively effective. Id.
To establish the prejudice prong, the defendant must show that there is a
reasonable probability that the outcome of the proceedings would have been different
but for counsel's ineffectiveness. Commonwealth v. Chmiel, 612 Pa. 333, 362-63, 30
A.3d 1111, 1127-28 (2011 ). "We stress that boilerplate allegations and bald assertions
of no reasonable basis and/or ensuing prejudice cannot satisfy a defendant's burden to
prove that counsel was ineffective." Id. (quoting Commonwealth v. Paddy, 609 Pa.
272, 292, 15 A.3d 431, 443 (2011 )). Where a petitioner has not met the prejudice
prong of the ineffectiveness standard, the claim may be dismissed on that basis alone
without a determination of whether the arguable merit and client's interest prongs have
been met. Commonwealth v. Wright, 599 Pa. 270, 320-21, 961 A.2d 119, 148-49
(2008); Commonwealth v. Zook, 585 Pa. 11, 26, 887 A.2d 1218, 1227 (2005).
15
In his 2018 Amended PCRA Petition, Williams claims his "Second Direct Appeal
counsel" was ineffective for ( 1) failing to challenge the weight of the trial evidence, and
(2) "fa i Ii ng to properly ad vacate at the [second] se nten ci ng hearing." See 2 O 1 8
Amended PCRA Petition at fflJ 3.3, 5. The first claim of ineffectiveness, although
related to resentencing counsel, is unrelated to the actual resentencing. As noted
above, Williams properly exercised his direct appellate rights following his jury trial and
sentencing. His first PCRA petition was unquestionably a PCRA petition and the relief
granted was post-conviction relief. Moreover, the relief granted in the first PCRA action
did not affect the adjudication of guilt, but merely the sentence imposed. Accordingly,
because Williams' claim of ineffectiveness against "Second Direct Appeal counsel" for
failing to challenge the weight of the trial evidence relates to the underlying 2011 trial,
which is a claim unrelated to his 2015 resentencing, his claim is untimely, and this Court
lacks jurisdiction to address it." See McKeever, 947 A.2d at 785; Dehart. 730 A.2d at
993 n.2.
14Williams had the constitutional right to appeal his judgment of sentence entered after
this Court granted him PCRA relief based upon Alleyne. However, in that direct appeal,
Williams "was permitted to raise issues pertaining only to the re-sentencing procedure itself; his
underlying claims of trial error regarding his non-vacated convictions could not be addressed on
direct appeal from re-sentencing." McKeever, 947 A.2d at 786 (citing Commonwealth v.
Gaito, 277 Pa. Super. 404, 419 A.2d 1208, 1211 n. 4 (1980)).
In Williams' second direct appeal following the resentencing, counsel did challenge the
sufficiency of the evidence underlying Williams' 2011 convictions in this matter. Relying on
Anderson, 801 A.2d at 1266, the Superior Court held that because Williams had already
litigated a direct appeal challenging his convictions he was barred from raising any issues other
than a challenge to the sentence imposed after this Court granted Williams' first PCRA petition
and vacated his judgment of sentence of August 4, 2011. See Wi I Iiams, 151 A.3d at 625. Th is
ruling would have been the same had counsel challenged the weight of the evidence, as
Williams now claims he should have done.
16
In contrast, Williams' second claim of error with respect to his resentencing is
timely. On October 16, 2015, Williams was resentenced following this Court's grant of
PCRA relief because Williams was serving an illegal sentence which included
mandatory minimum sentences ruled unconstitutional in Alleyne. Williams' new
sentence became final 30 days after the Superior Court affirmed the judgment on direct
appeal on November 23, 2016. Williams filed his prose petition on September 5, 2017,
which was within one year of the date his new judgment of sentence became final.
Thus, this Court has jurisdiction to address Williams' collateral challenge related to his
2015 resentencing proceeding. See Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d
345 (2011).
Williams claims his ''Second Direct Appeal counsel" was ineffective for "failing to
properly advocate at the [second] sentencing hearing." See 2018 Amended PCRA
Petition at ,r 5. Williams specifically objects to counsel's statement at the resentencing
hearing that "there's no real legal argument to change the sentence at this point." N.T.,
Video Resentencing Hearing at 10. Williams claims this is a misstatement of the law,
and counsel was obligated to present, and the court was required to consider, Williams'
"instructional record and adjustment at resentencinq.?" 2018 Amended PCRA Petition
at,r5.1.2.
In fact, there was substantial evidence presented at the resentencing regarding
Williams' institutional record. Via video conferencing, Williams informed the Court of
15This Court is not familiar with the term "instructional record" as it relates to sentencing;
nor could any appellate court cases be found addressing this term. There is substantial case
law, however, regarding the consideration of "institutional records" when sentencing and/or
resentencing a criminal defendant.
17
his employment with the Department of Corrections (DOC), and his successful
completion of all mandatory programming. N.T., Video Resentencing Hearing at 6.
Additionally, Williams sent a letter to the Court dated October 13, 2015, in anticipation
of his resentencing in which he detailed his low custody level status, his DOC transfer
due to good behavior, his employment in the Restricted Housing Unit where he assists
with "the feeding, cleaning, and counseling of problematic inmates while they serve
sanctions for administrative and disciplinary reasons," and his work with family
members "on the outside who are starting a program for at-risk youth." In his letter and
during the resentencing hearing, Williams further accepted full responsibility for his
actions. Id.
Defense counsel also provided four letters of support for Williams, some of
which outlined the steps Williams was taking to change his life and to improve his
situation in prison. N.T., Video Resentencing Hearing at 7-8. Moreover, counsel
introduced the testimony of Williams' sister who discussed Williams' future plans for
education in a trade and employment in a family business upon his release from prison.
Id. at 9.
Finally, defense counsel addressed the Court and argued Williams was a
changed man from the original sentencing in 2011. His rehabilitation stemmed from his
completion of the mandatory programming, his employment in "one of the worst jobs in
the prison," and his acceptance of responsibility for his criminal actions. N.T., Video
Resentencing Hearing at 9-10. Thus, a review of the record refutes Williams' claim that
defense counsel failed to properly advocate for him at the resentencing hearing.
18
With respect to defense counsel's statement regarding "no real legal argument to
change the sentence," it is unclear as to precisely what counsel was referring. N.T.
Video Resentencing Hearing at 10. All parties agreed that the law required a new
sentence for those Counts where mandatory minimum sentences had previously been
imposed, i.e., Counts 2 through 6. The Court reviewed the changes in the Sentencing
Guidelines for Counts 2 (conspiracy), 3 (PWID) and 5 (PWID), and noted that "[i]f the
mandatory sentence had not been imposed, the guidelines would have been higher, but
it would be an illegal sentence for [the Court] to increase [Williams'] sentence on those
counts."16 N.T., Video Resentencing Hearing at 5. The Sentencing Guidelines for
Counts 1 (corrupt organizations) and 7 (criminal use of communication device) did not
change. Only Counts 4 (possession with intent to deliver 14 grams of cocaine) and 6
(possession with intent to deliver 14 grams of cocaine) saw the standard guidelines go
down from 60 months' incarceration to 27 to 33 months' incarceration.
Accordingly, Williams' sentences on Counts 1, 2, 3, 5 and 7 did not change from
2011. The sentences on Counts 4 and 6 were reduced from 5 to 10 years'
incarceration to 2.75 to 5.5 years' incarceration. Recognizing that the Court had
previously made the sentences on Counts 2, 5 and 7 consecutive, defense counsel
asked the Court to consider a sentence where all counts were run concurrently, given
"Count 2, conspiracy to possess with the intent to deliver 200 grams of cocaine, had a
mandatory minimum of 60 months. Williams' standard range is now 72 to 90 months. Count 3,
possession with intent to dellver 126 grams of cocaine, had a mandatory minimum of 48
months and standard range guidelines of 60 months' incarceration. Williams' standard range is
now 72 to 90 months' incarceration. Count 5, possession with intent to deliver 53 grams of
cocaine, had a mandatory minimum of 48 months and standard range guidelines of 60 months'
incarceration. Williams' standard range is now 60 to 72 months' incarceration. N.T., Video
Resentencing Hearing at 4.
19
the rehabilitation that Williams had demonstrated. N.T., Video Resentencing Hearing at
10.
However, as in 2011, Counts 1, 3, 4, 5 and 6 were made concurrent with one
another, and Counts 2, 5 and 7 were ordered consecutive, for an aggregate sentence
of 11 to 22 years' incarceration. Given the new Sentencing Guidelines, the Court noted
that the net aggregate sentence was actually a mitigated sentence and a lesser
sentence than could otherwise have been imposed at the time of the original sentence.
Williams has failed to establish by a preponderance of the evidence that defense
counsel failed to properly advocate for him at the resentencing hearing or that he
suffered prejudice because of any alleged inaction of counsel. See 42 Pa.C.S.A. §
9543(a)(2)(ii); Spotz, 616 Pa. at 187, 47 A.3d at 76.
Ill. Conclusion
For the reasons set forth above, Williams' 2018 Amended PCRA Petition will be
denied in part and dismissed in part, without a hearing.
Accordingly, I enter the following:
20