Com. v. Santiago, J. ( 2014 )

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JONATHAN SANTIAGO, : No. 1598 EDA 2013
:
Appellant :
Appeal from the PCRA Order, May 8, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0505311-2005
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 19, 2014
Appellant appeals from the denial of his petition filed pursuant to the
affirm.
Appellant was arrested on April 27, 2005, following an incident on
Lycoming Street in Philadelphia in which appellant shot and killed a
compatriot while attempting to shoot another individual. The trial court
accurately summarized the procedural history:
On April 27, 2005, defendant, Johnathan [sic]
Santiago, was arrested and charged with murder,
generally, possession of instruments of crime,
carrying a firearm on a public street, and carrying a
firearm without a license. Defendant was tried
before this Court, sitting without a jury, on June 21,
2006, and convicted of murder of the third degree,
possession of instruments of crime, carrying a
firearm without a license, and carrying a firearm on a
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public street. Subsequent thereto, defendant
received concurrent sentences of incarceration of ten
to twenty years, two-and-a-half to five years,
three-and-a-half to seven years, and no further
punishment, respectively on the above four
convictions.
Following the imposition of thesentence,
-sentence
motion, which was never ruled upon. No appeal was
filed. However, defendant filed a pro se petition
under the Post-Conviction Relief Act, 42 Pa.C.S.
§ 9541 et seq. (PCRA), after which, defendant was
granted the right to file a notice of appeal nunc pro
tunc. Subsequently, defendant filed a notice of
appeal as well as a requested 1925(b) statement.
Said appeal was discontinued on November 10,
2011.
On January 26, 2012, defendant filed a timely
pro se PCRA petition. Counsel was appointed to
represent defendant and on November 6, 2012,
counsel filed a no-merit letter. Subsequent thereto,
after defendant was sent a Pa.R.Crim.P. 907 notice,
to which he filed a response, this Court dismissed
permitted PCRA counsel to withdraw. Defendant
thereafter filed a timely notice of appeal as well as a
requested 1925(b) statement.
Trial court opinion, 10/1/13 at 1-2.
Appellant raises two issues on appeal:
WHETHER THE PCRA COURT ERRED AS A MATTER
OF LAW AND/OR ABUSED ITS DISCRETION IN
DENYING AND/OR OTHERWISE DISMISSING
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
MOVE FOR DISMISSAL OF THE CHARGES AGAINST
APPELLANT BASED UPON VIOLATION OF
PA.R_CRIM.P. 600?
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WHETHER THE PCRA COURT ERRED AS A MATTER
OF LAW AND/OR ABUSED ITS DISCRETION IN
DENYING AND/OR OTHERWISE DISMISSING
WITHOUT A H
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
FILE A TIMELY POST-SENTENCE MOTION?
Our standard of review for an order denying post-conviction relief is
rmination, and whether
Commonwealth v.
Franklin
will not be disturbed unless there is no support for the findings in the
certified record. Id.
of counsel, we also note that appellant is required to make the following
showing in order to succeed with such a claim: (1) that the underlying claim
is of arguable merit; (2) that counsel had no reasonable strategic basis for
his or her action or inaction; and (3) that, but for the errors and omissions
of counsel, there is a reasonable probability that the outcome of the
proceedings would have been different. Commonwealth v. Rivera, 10
A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any prong of this
test will cause the entire claim to fail. Commonwealth v. Daniels, 947
A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed to be
effective, and appellant has the burden of proving otherwise.
Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).
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erred in not conducting an evidentiary hearing.
[T]he right to an evidentiary hearing on a
post-conviction petition is not absolute.
Commonwealth v. Jordan, 772 A.2d 1011, 1014
discretion to decline to hold a hearing if the
support either in the record or other evidence. Id.It is the responsibility of the reviewing court on
appeal to examine each issue raised in the PCRA
petition in light of the record certified before it in
order to determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Hardcastle, 549 Pa. 450, 454,
701 A.2d 541, 542-543 (1997).
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012), quoting
Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
counsel. Where the issue concerns ineffective assistance of counsel, an
evi
to act was an oversight or some kind of tactical decision. The other two
prongs of the test for ineffectiveness, underlying merit of the claim and
prejudice to the defendant, can usually be determined from the record.
Because an appellant must prove all three prongs, the failure to prove a
single prong results in a finding of no ineffectiveness. Thus, an evidentiary
hearing need not be held where it can be determined from the record that
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the underlying claim has no merit or that there has been no prejudice to
appellant. That is the situation here and we find no error in failing to hold
an additional evidentiary hearing.
Appellant first asserts that counsel was ineffective in failing to file a
motion to dismiss charges pursuant to the speedy trial rule, Pa.R.Crim.P.,
Rule 600, 42 Pa.C.S.A. Rule 600 provides, in pertinent part:
Rule 600. Prompt Trial
(A) Commencement of Trial; Time for Trial
(1) For the purpose of this rule, trial
shall be deemed to commence on
the date the trial judge calls the
case to trial, or the defendant
tenders a plea of guilty or nolo
contendere.
(2) Trial shall commence within the
following time periods.
(a) Trial in a court case in
which a written
complaint is filed
against the defendant
shall commence within
365 days from the date
on which the complaint
is filed.
(C) In determining the period for commencement
of trial, there shall be excluded therefrom:
(1) the period of time between the
filing of the written complaint and
that the defendant could not be
apprehended because his or her
whereabouts were unknown and
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could not be determined by due
diligence;
(2) any period of time for which the
defendant expressly waives Rule
600;
(3) such period of delay at any stage
of the proceedings as results from:
(a) the unavailability of the
defendant or the
(b) any continuance
granted at the request
of the defendant or the
Rule 600 (A) and (C), in pertinent part.
Appellant was arrested on April 27, 2005, and was not brought to trial
until June 21, 2006, facially in violation of the mechanical Rule 600 run date
of April 27, 2006. An examination of the record, however, in particular the
quarter-panel continuance sheets used by the Philadelphia Court of Common
Pleas, reveals a number of defense requests for continuances. Specifically,
we note defense requested continuances from 7/5/05 to 7/27/05 (22 days),
7/29/05 to 8/30/05 (32 days), 9/13/05 to 9/28/05 (15 days), 9/28/05 to
10/27/05 (29 days), and 10/26/05 to 11/01/05 (5 days1). Pursuant to
Rule 600(C)(3)(a), these continuances, totaling 103 days, must be excluded
from the elapsed time. This results in an adjusted Rule 600 run date of
1
October 26 and 27, 2005, were already counted under the preceding
continuance.
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August 8, 2006. Thus, appellant was brought to trial within the Rule 600
period, and trial counsel had no reason for filing a Rule 600 motion. There is
no ineffectiveness on this basis.
Appellant also claims that trial counsel was ineffective in failing to file
a timely post-sentence motion requesting reconsideration of his sentence.
We may quickly dispose of this argument on the basis that appellant cannot
satisfy the prejudice prong of the test for ineffectiveness:
No relief is due on this claim because this Court
would have summarily dismissed a motion for
reconsideration of sentence had one been filed. The
sentence imposed on defendant was the result of
careful consideration of the facts of the case, the
contents of the pre-sentence reports, and
Consequently, there was nothing either counsel or
defendant could have said to convince this Court to
impose a lesser sentence than the one imposed on
him, which, it is noted was within the standard range
of the applicable Sentencing Guidelines.
Trial court opinion, 10/1/13 at 8-9.
court would not have granted a motion to reconsider sentence. There is no
ineffectiveness here.
Accordingly, having found no merit in any issue on appeal, we will
affirm the order below.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2014
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