Com. v. Waters, T. ( 2022 )

J-S08025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYHIR KHALIL WATERS :
:
Appellant : No. 1159 MDA 2021
Appeal from the PCRA Order Entered August 7, 2021
In the Court of Common Pleas of Tioga County Criminal Division at
No(s): CP-59-CR-0000305-2019
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED: JUNE 28, 2022
Appellant Tyhir Khalil Waters appeals from the order denying his timely
first Post Conviction Relief Act1 (PCRA) petition. Appellant contends that his
counsel at his sentencing hearing (sentencing counsel) was ineffective for
failing to object to the sentencing court’s incorrect description of the firearm
Appellant possessed, and the failure to correct the court’s misapprehension
caused the sentencing court to impose a longer sentence. We affirm.
The record reflects that Appellant entered an open guilty plea to one
count of persons not to possess firearms,2 graded as a first-degree felony.
____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. § 6105(a)(1).
J-S08025-22
N.T., 5/29/20, at 1-2.3 On May 29, 2020, the trial court sentenced Appellant
to term of sixty to 120 months of incarceration with 365 days of credit for
time served. Id. at 33. Appellant did not file a post-sentence motion or direct
appeal.
On February 25, 2021, Appellant filed a timely pro se PCRA petition.
The PCRA court appointed counsel, and Appellant filed a counseled amended
PCRA petition on April 29, 2021. In the amended petition, Appellant asserted
that at the sentencing hearing, the sentencing court and the district attorney
referred to the rifle as an “automatic rifle.”4 Am. PCRA Pet., 4/29/21, at 2-4.
Following a hearing, the PCRA court concluded that the errant reference to the
rifle was harmless error, and therefore, Appellant failed to establish that
sentencing counsel was ineffective. Order, 8/7/21.5 Accordingly, the PCRA
____________________________________________
3 The affidavit of probable cause indicates that Appellant was one of several
individuals engaged in an altercation at a convenience store. The individuals
fled the scene in two separate cars and police pursued them. The police
stopped both cars. Appellant was the front seat passenger of one car that
was occupied by four individuals. When the car was stopped, the attesting
officer saw a rifle next to Appellant, leaning against the console beside him,
and a loaded magazine was found in between the seat and console where
Appellant was sitting. A witness told police that the front seat passenger
pointed what the witness thought was a BB gun at the other vehicle. Aff. of
Probable Cause, 6/6/19, at 1-3.
4 The trial court said “automatic rifle” twice, and the district attorney used the
term once. N.T., 5/29/20 at 6, 12.
5 Although the order was dated August 6, 2021, the trial court docket reflects
that the order was not served on the parties until August 7, 2021. Criminal
Docket Entries, at 12. The date of entry of an order is “the day the clerk of
the court . . . mails or delivers copies of the order to the parties, . . . .”
(Footnote Continued Next Page)
-2-
J-S08025-22
court denied Appellant’s petition. Id. Appellant filed a timely notice of appeal,
and both the PCRA court and Appellant complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issue:
Did the PCRA court err when it concluded that the sentencing
court’s repeated and inaccurate mischaracterization of an AR-15
as an automatic rifle was a harmless error, even though the
sentencing court specifically referenced the nature of the weapon
as weighing against mitigation, and the sentencing court may
have imposed a harsher sentence based on a mistaken belief that
[Appellant] possessed a far more dangerous and unusual weapon
than was in fact the case?
Appellant’s Brief at 4 (formatting altered).6 Appellant contends that
sentencing counsel’s failure to object to the sentencing court’s
misapprehension regarding the type of rifle and erroneous description
constituted ineffective assistance of counsel. Id. at 9-12. Appellant asserts
that the trial court “appears to have been under a misapprehension regarding
a fact directly relevant to the seriousness of the crime, and sentencing counsel
____________________________________________
Pa.R.A.P. 108(a)(1), (d)(1). Accordingly, we refer to the order using August
7, 2021.
6 Although Appellant argues ineffectiveness in his appellate brief, his Rule
1925(b) statement and question presented in his brief is a bare assertion that
the PCRA erred in concluding that the sentencing court’s reference to
Appellant’s firearm was harmless error. We note that relief is statutorily
limited under the PCRA, and a vague Rule 1925(b) statement may result in
waiver. See, e.g., Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa.
Super. 2007) (noting that challenges to the discretionary aspects of
sentencing are not cognizable under the PCRA); see also Commonwealth
v. Pukowsky, 147 A.3d 1229, 1236 (Pa. Super. 2016) (explaining that a
vague Rule 1925(b) statement may result in waiver). However, Appellant’s
imprecise Rule 1925(b) statement does not preclude our review, and we
decline to find waiver.
-3-
J-S08025-22
failed to correct such misapprehension.” Id. at 9. Appellant points out that
the sentencing judge said: “. . . apparently these were pretty substantial
firearms; AR, I believe that means automatic rifle.” Id. at 10 (quoting N.T.,
5/29/20, at 6). Appellant notes that the sentencing court continued:
. . . that unnerves me because you’re - what you’re saying to me
is, I’ve got a young man here that is on drugs to the point that he
doesn’t know [what] he is doing, but he’s in possession or access
of automatic rifles. That, that, that takes me to, that takes me to
a land I don’t want to go to.
Appellant’s Brief at 10 (quoting N.T., 5/29/20, at 6).
The Commonwealth argues that whether Appellant was in possession of
an automatic rifle as opposed to a semi-automatic rifle did not impact the
sentence, and any error was harmless. Commonwealth Brief at 8-10. The
Commonwealth points out that there were only passing references to the type
of firearm. Id. at 8. Whether the rifle Appellant pled guilty to possessing was
automatic or semi-automatic had no impact on the sentence imposed. Id. at
8-10.
We begin our discussion by setting forth our standard of review:
[O]ur standard of review from the denial of a PCRA petition is
limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal
error. 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
conclusions.
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
-4-
J-S08025-22
determining process that no reliable adjudication of guilt or
innocence could have taken place. The burden is on the defendant
to prove all three of the following prongs: (1) the underlying claim
is of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success.
Counsel’s decisions will be considered reasonable if they
effectuated his client’s interests. We do not employ a hindsight
analysis in comparing trial counsel’s actions with other efforts he
may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered). Additionally:
[a] defendant raising a claim of ineffective assistance of counsel
is required to show actual prejudice; that is, that counsel’s
ineffectiveness was of such magnitude that it could have
reasonably had an adverse effect on the outcome of the
proceedings. [Commonwealth v.] Pierce, 527 A.2d [973,] 977
[(Pa. 1987)]. This standard is different from the harmless error
analysis that is typically applied when determining whether the
trial court erred in taking or failing to take certain action. The
-5-
J-S08025-22
harmless error standard, as set forth by this Court in
Commonwealth v. Story, 383 A.2d 155, 164 (Pa. 1978), states
that whenever there is a reasonable possibility that an error might
have contributed to the conviction, the error is not harmless. This
standard, which places the burden on the Commonwealth to show
that the error did not contribute to the verdict beyond a
reasonable doubt, is a lesser standard than the Pierce prejudice
standard, which requires the defendant to show that counsel’s
conduct had an actual adverse effect on the outcome of the
proceedings. This distinction appropriately arises from the
difference between a direct attack on error occurring at trial and
a collateral attack on the stewardship of counsel. In a collateral
attack, we first presume that counsel is effective, and that not
every error by counsel can or will result in a constitutional violation
of a defendant’s Sixth Amendment right to counsel. Pierce,
supra.
Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014) (quoting
Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa. 2004)) (some
formatting altered).
Our review reflects that the PCRA court conceded that the sentencing
court erroneously used the term automatic rifle. Supp. PCRA Ct. Op.,
10/25/21, at 1. However, the PCRA court concluded that the error was
harmless. Id. The PCRA court explained that it was Appellant’s active role in
picking up the firearm, not the “firing capacity or dangerousness” of the rifle
that prevented the sentencing court from imposing a lesser sentence. Id. at
1-2. Therefore, the PCRA court found that Appellant failed to establish a claim
of ineffective assistance of counsel. Id. at 2.
After review, we note that aside from Appellant’s argument, there is no
indication that the description or type of firearm that Appellant possessed had
any impact on the sentence imposed. The record reveals that at the start of
-6-
J-S08025-22
the sentencing hearing, the sentencing court informed Appellant that the
offense gravity score (OGS) was eleven and Appellant’s prior record score
(PRS) was four. N.T., 5/29/20, at 3. The sentencing court explained that
Appellant was pleading guilty to a first-degree felony charge. Id. The
sentencing court then explained that the grade of the offense, in combination
with the OGS and Appellant’s PRS, resulted in a minimum sentence of between
sixty and seventy-eight months under the Sentencing Guidelines. Id. The
sentencing court clarified that when Appellant picked up the firearm, he was
not a passive passenger in a car with firearms, he became an active
participant, and that fact “extinguishes or goes to extinguish . . . mitigation
that [the sentencing court] might have been willing to give him.” Id. at 16.
Ultimately, the sentencing court imposed a sentence with a minimum of sixty
months and a maximum of 120 months of incarceration, which is at the lowest
end of the standard range of the Sentencing Guidelines. See N.T., 5/29/20,
at 33; see also 204 Pa.Code § 303.16(a) (Basic Sentencing Matrix).7
The record reflects the extensive discussion about the standard-range
sentence before sentence was imposed. N.T., 5/29/20, at 26. The sentencing
court explained that Appellant’s first-degree felony charge, in conjunction with
Appellant’s PRS, formed the basis for imposing the sentence of sixty months,
which is the low end of the standard sentencing range. Id. The sentencing
____________________________________________
7 Indeed, a sentence of seventy-eight to 156 months would have been a
standard-range sentence. See 204 Pa.Code § 303.16(a).
-7-
J-S08025-22
court detailed that the grading of the offense impacted the standard-range
sentence, and if Appellant had been charged with a second-degree felony or
a third-degree felony, a lower standard-range sentence would have been
imposed. Id. We note that throughout the entire proceeding, the sentencing
court discussed sentencing at the lowest end of the standard range of the
Sentencing Guidelines. Id. at 18-33.
We conclude that Appellant received the instant sentence based on the
sentencing court’s consideration of multiple factors including Appellant’s PRS
and criminal history which prohibited Appellant from possessing a firearm, and
that Appellant pled guilty to the underlying crime graded as a first-degree
felony. Even if sentencing counsel objected to the description of the firearm,
it is unlikely that the result of the sentencing proceeding would have been
different. There is no evidence that the type of the firearm affected Appellant’s
guilty plea to the possession of a firearm that was prohibited to him due to his
felony record. Nor does the record support Appellant’s claim that the type of
firearm affected his sentencing which was imposed at the lowest end of the
standard range of the Sentencing Guidelines. Indeed, the OGS was not
dependent on the type of firearm that Appellant illegally possessed. As the
sentencing court stated, an important consideration was Appellant’s active
-8-
J-S08025-22
role in handling the firearm, not the type of firearm, that supported the
sentence. Id. at 16.8
On this record, we agree with the PCRA court’s conclusion that the
erroneous description of Appellant’s firearm was harmless and therefore, there
was no prejudice to Appellant. Supp. PCRA Ct. Op., 10/25/21, at 1-2.
Because Appellant has not established prejudice, his claim of ineffective
assistance of counsel fails and no relief is due. See Sandusky, 203 A.3d at
____________________________________________
8 The dissent posits that we have “minimized the seriousness” of the
sentencing court’s misstatements. Dissenting Mem., at 1. As noted, the trial
court used the term “automatic” to describe Appellant’s AR-15, which is a
semi-automatic weapon. See N.T., 5/29/20, at 6. Without discussing the
singular term “automatic,” the dissent proceeds to quote language from the
Supreme Court of the United States which explains the distinction between a
“fully automatic” weapon and a “semi-automatic” weapon. Dissenting Mem.
at 1-3 (citing Staples v. U.S., 511 U.S. 600, 603 (1994)). In Staples, the
Court stated the level of proof that was required to establish that a firearm
falls within the statutory definition of a “machine gun,” a fully automatic
firearm. Staples, 511 U.S. at 602. However, in the case at bar, the
sentencing court never referred to Appellant’s firearm as “fully automatic” or
as a “machine gun.” Additionally, we point out that referring to a semi-
automatic weapon as “automatic,” is not uncommon. See, e.g.,
Commonwealth v. Almodovar, 2022 WL 122614, at *1 (Pa. Super. filed
Jan. 13, 2022) (unpublished mem.). Moreover, despite the dissent’s
suppositions, it is clear that Appellant failed to establish that the result of the
sentencing hearing would have been different if counsel had objected to the
term “automatic” and pointed out to the sentencing court that the weapon
was “semi-automatic” as opposed to “automatic.” Indeed, neither the
dissent’s position that semi-automatic weapons are regularly utilized by
civilians, nor the rate of fire for an AR-15 were factors that could increase or
decrease the applicable Sentencing Guidelines for 18 Pa.C.S. § 6105(a)(1).
Finally, because Appellant received a sentence at lowest end of the standard
range, we presume that his sentence was reasonable. See, e.g.,
Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006). Pursuant
to our standard of review, we do not find that the PCRA court erred in denying
Appellant relief.
-9-
J-S08025-22
1043-44; see also Spotz, 84 A.3d at 315. For these reasons, we affirm the
PCRA court’s order.
Order affirmed.
Judge McCaffery joins the memorandum.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/28/2022
- 10 -