Com. v. Presley, L. ( 2023 )

J-S03028-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LYNN PRESLEY :
:
Appellant : No. 2032 EDA 2021
Appeal from the PCRA Order Entered September 24, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1113641-1998
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LYNN PRESLEY :
:
Appellant : No. 2033 EDA 2021
Appeal from the PCRA Order Entered September 24, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1113831-1998
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 14, 2023
Lynn Presley appeals from the orders entered in the Philadelphia County
Court of Common Pleas dismissing his second petition filed pursuant to the
Post Conviction Relief Act (PCRA),1 seeking relief from his violation of
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1 42 Pa.C.S. §§ 9541-9545.
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probation (VOP) sentence after entering guilty pleas at two dockets.2 On
appeal he alleges his sentence of 12 to 24 years’ incarceration imposed after
a violation of his probation was excessive and prior PCRA and appellate
counsel was ineffective. Counsel for Appellant filed a letter brief and motion
to withdraw as counsel pursuant to Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1998). We affirm.
We glean the following underlying facts and procedural history from a
prior decision of this Court:
This matter arises out of Appellant’s involvement in two
separate criminal cases in Philadelphia County. At [Docket 3641],
Appellant pleaded guilty to robbery, terroristic threats, simple
assault, and contempt of court. At [Docket 3831], he pleaded
guilty to theft by unlawful taking, simple assault, and contempt of
court. On January 7, 2000, the [trial court] sentenced Appellant
to an aggregate term of [11 and one half to 23 months’]
incarceration followed by five years of reporting probation.
Appellant was granted immediate parole.
Due to technical violations of Appellant’s probation
requirements[, the VOP court] revoked his probation at a [VOP]
hearing on March 30, 2001. [The VOP court] resentenced him to
the same term of [11 and one half to 23 months’] incarceration
followed by five years of reporting probation.
Based on an undercover police investigation [from October
through December of 2004], Appellant was charged in
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2 On January 7, 2000, at Criminal Docket CP-51-CR-1113641-1998 (Docket
3641), Appellant plead guilty to one count each of theft, simple assault, and
contempt of court. See 18 Pa.C.S. §§ 3921(a), 2701(a); 23 Pa.C.S. § 6114.
That same day, Appellant plead guilty at Criminal Docket CP-51-CR-1113831-
1998 (Docket 3831), to one count each of robbery, terroristic threats, simple
assault, and contempt of court. See 18 Pa.C.S. §§ 3701, 2706(a).
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Montgomery County on March 1, 2005, with multiple theft
crimes[.] Six months later at a bench trial on September 13,
2005, [a Philadelphia trial court] found Appellant guilty of various
[unrelated] drug charges and conspiracy[.] Due to Appellant’s
intervening criminal conduct, [the VOP court then] held a VOP
hearing on November 16, 2005, where [it] heard testimony
regarding the Montgomery County charges and the Philadelphia
County drug offenses. Noting this was Appellant’s second VOP
hearing, [the VOP court] revoked Appellant’s probation and
sentenced him to an aggregate term of [12 to 24 years’]
incarceration[.]
Appellant filed a timely post-sentence motion[. The VOP
court] granted the motion and vacated [the 12 to 24 year]
sentence. Following numerous continuances requested by
Appellant in order to [ultimately unsuccessfully] negotiate a deal
with the Montgomery County District Attorney, [the VOP court]
conducted a hearing on December 6, 2006, to reconsider
Appellant’s revocation of probation sentence. At the
reconsideration hearing, the Commonwealth explained that it
would nolle prose Appellant’s [Philadelphia] drug convictions “in
favor of judicial economy” if [the VOP court] decided to re-impose
the [12 to 24 year] sentence. After hearing argument from
counsel and Appellant’s statement, [the VOP court] re-imposed
the . . . sentence of [12 to 24 years’] incarceration[.] On the same
day, the Commonwealth nolle prossed Appellant’s drug
convictions. Appellant did not file post-sentence motions or a
direct appeal.
[In August of 2007, Appellant filed a PCRA petition] seeking
reinstatement of his post-sentence and direct appeal rights nunc
pro tunc because counsel failed to file post-sentence motions or a
direct appeal from the December 6, 2006[,] sentence. . . . The
PCRA court [granted his petition and] reinstated [his] direct
appeal rights nunc pro tunc on February 4, 2011.
Commonwealth v. Presley, 193 A.3d 436, 438-39 (Pa. Super. 2018)
(citation omitted).
In his direct appeal, Appellant argued his sentence was “harsh and
excessive” and the VOP court did not consider the sentencing factors or
explain its reasons for imposing the sentence. Commonwealth v. Presley,
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554 EDA 2011 (unpub. memo at 5) (Pa. Super. Apr. 23, 2012). The trial
court3 agreed the VOP court failed to provide an explanation for the sentence
it imposed, and “respectfully recommend[ed] that [Appellant’s] sentence be
vacated and the matter remanded for imposition of a new sentence.” See
Presley, 193 A.3d at 440 (citation omitted). On April 23, 2012, another panel
of this Court denied relief, reasoning that Appellant did not preserve this claim
for review, but indicated its ruling was “without prejudice to his rights under
the PCRA to allege trial counsel’s ineffectiveness in failing to file a post-
sentence motion.” Presley, 554 EDA 2011 (unpub. memo. at 7-8). Appellant
filed a petition for review with the Pennsylvania Supreme Court, which was
denied on August 28, 2012. See Commonwealth v. Presley, 221 EAL 2012
(Pa. Aug. 28, 2012).
On December 17, 2012, Appellant filed a timely first PCRA petition,
wherein he alleged VOP counsel was ineffective for failing to preserve his
discretionary aspects of sentencing claim.4 See Presley, 193 A.3d at 442.
The PCRA court dismissed his petition and this Court affirmed the order,
opining the VOP court did not abuse its discretion “[g]iven the facts and history
of [the] case[,]” the court’s “familiarity” with Appellant, and the “highly-
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3 A different trial judge presided over Appellant’s direct appeal than his VOP
proceedings.
4 Appellant filed his December 2012 petition pro se. On January 15, 2015,
Peter A. Levin, Esquire, was appointed to represent Appellant. See Appellant’s
Amended Petition Under Post-Conviction Relief Act, 7/21/16, at 5. Attorney
Levin filed an amended petition on July 21, 2016.
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deferential” standard of review. Id. at 447. Specifically, it noted the VOP
court was “well aware of Appellant’s character, circumstances, and potential
for rehabilitation (or lack thereof).” Id. at 446, citing Commonwealth v.
Pasture, 107 A.3d 21, 28 (Pa. 2014) (“When sentencing is a consequence of
the revocation of probation, the trial judge is already fully informed as to the
facts and circumstances of both the crime and the nature of the defendant . .
.”). Moreover, it concluded Appellant could not establish that counsel’s failure
to file the motion prejudiced him. Id. The Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal on January 29, 2019. See
Commonwealth v. Presley, 366 EAL 2018 (Pa. Jan. 29, 2019).
Appellant filed the present PCRA petition, his second, on September 24,
2019, alleging VOP hearing counsel was ineffective and the VOP court imposed
an excessive sentence. Appellant’s Pro Se Motion for Post Conviction
Collateral Relief, 9/24/19, at 3. On June 24, 2021, the PCRA court issued a
notice of dismissal pursuant to Pa.R.Crim.P. 907. Appellant did not file a
response, but on July 2nd requested the court appoint him counsel. On
September 24, 2021, the court dismissed the petition as untimely and granted
the request for counsel.5 On September 28th, Daniel Anthony Alvarez, Esquire
(Counsel), entered his appearance and filed timely notices of appeal at each
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5 The order dismissing Appellant’s September 24, 2019, PCRA petition does
not appear in the record. However, the criminal docket reflects the PCRA court
filed such an order on September 24, 2021. See Criminal Docket No. CP-51-
CR-1113641-1998, at 20; Criminal Docket CP-51-CR-1113831-1998, at 21.
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docket the next day. On October 28, 2021, this Court sua sponte consolidated
Appellant’s appeals. Order, 10/28/21.
On November 8, 2021, Appellant complied with the PCRA court’s order
to file a concise statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b), alleging appellate counsel was ineffective, his VOP
sentence of 12 to 24 years’ incarceration was excessive, and the VOP court
failed to state its reasons for imposing the sentence on the record. See
Appellant’s Statement of Matters Complained of On Appeal, 11/8/21, at 1
(unpaginated). However, two days later — and one day after the filing
deadline — Appellant filed a supplemental Rule 1925(b) statement raising an
additional claim that his September 2019 petition was timely filed in light of
the Pennsylvania Supreme Court decision Commonwealth v. Bradley, 261
A.3d 381 (Pa. 2021). See Appellant’s Amended/Supplemental Statement of
Matters Complained of On Appeal, 11/10/21, at 2 (unpaginated).
On December 13, 2021, the PCRA court issued an opinion stating: (1)
Appellant waived his argument regarding the timeliness of his petition when
he raised it in an untimely Rule 1925(b) statement; and (2) his remaining
ineffectiveness claim was previously litigated. PCRA Ct. Op.,12/13/21, at 6-
7. Thereafter, Appellant filed an application in this Court to remand the matter
to the PCRA court to address his arguments regarding Bradley. See
Appellant’s Application for Remand to Seek From the Lower Court Permission
to File An Amended/Supplemental Statement of Matters, Nunc Pro Tunc, In
Light of the Recently Decided Pennsylvania Supreme Court Case,
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Commonwealth v. Aaron Bradley, [ ] 12/15/21, at 2-5 (unpaginated). On
January 7, 2022, this Court remanded the case and directed the PCRA court
to address the applicability of Bradley. Order, 1/7/22. The PCRA court filed
a supplemental opinion on May 26, 2022, and shortly thereafter, counsel filed
a Turner/Finley petition to withdraw from representation. This matter now
returns to us on appeal.
We surmise the following claims from Counsel’s Turner/Finley letter
brief:6 (1) Appellant believes his 2006 sentence of 12 to 24 years’
incarceration was excessive; (2) former PCRA counsel, Attorney Levin, was
ineffective; and (3) Appellant’s petition was timely filed under Bradley
because it was “filed within one year of the denial of allocator” of his first PCRA
petition. See Turner/Finley Letter Brief at 8-10.
Preliminarily, we address Counsel’s motion to withdraw as counsel. An
application to withdraw as counsel must comply with the Turner/Finley
requirements:
Counsel petitioning to withdraw from PCRA representation
must proceed . . . under [Turner and Finley, and] must review
the case zealously. Turner/Finley counsel must then submit a
“no-merit” letter to the trial court, or brief on appeal to this Court,
detailing the nature and extent of counsel’s diligent review of the
case, listing the issues which petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no merit” letter/brief; (2) a copy of counsel’s petition to
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6 Counsel did not include a “Questions Presented” section in his letter brief.
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withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted). If this Court determines counsel has satisfied these technical
requirements, we “must then conduct [our] own review of the merits of the
case. If [we] agree[ ] with counsel that the claims are without merit, [we]
will permit counsel to withdraw and deny relief.” Id. (citation omitted).
Here, Counsel has satisfied the above procedural requirements. In his
letter brief, he discusses Appellant’s potential claims, the relevant case law
and supporting documents, and the reasons why the issue is “frivolous.”7
Turner/Finley Letter Brief at 1, 7-19. Counsel purports that Appellant’s
petition is “arguably” timely filed under Bradley since it challenges prior PCRA
counsel’s ineffective assistance and was submitted less than one year after
the Pennsylvania Supreme Court denied review of his 2018 PCRA petition.
See Turner/Finley Brief at 9. However, he explains Appellant is otherwise
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7 To withdraw from representation during PCRA proceedings, counsel must
comply with Turner/Finley requirements, which dictate a finding that all
purported claims are meritless. See Doty, 48 A.3d at 454. Alternatively,
when petitioning to withdraw from direct appeal representation, counsel must
determine an appellant has no non-frivolous claims. See Anders v.
California, 386 U.S. 738, 744 (1967).
Here, Counsel has concluded Appellant’s claims are “frivolous.” See
Turner/Finley Letter Brief at 1. Though counsel uses the language specific
to an Anders’ petition, his determination substantially complies with the
requirements of Turner/Finley. See Commonwealth v. Widgins, 29 A.3d
816, 817 n.2 (Pa. Super. 2011) (stating Anders provides higher protections
than Turner/Finley, and as such, complies with the Turner/Finley
standard).
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not entitled to relief because: (1) his discretionary aspects of sentencing claim
was previously litigated in his prior PCRA petition; and (2) Appellant does not
specify “how previous counsel [Attorney Levin] was ineffective and how such
ineffectiveness caused . . . Appellant prejudice[.]” Id. at 10; see also
Presley, 193 A.3d at 446-47. Counsel indicated in his motion to withdraw he
served a copy of the motion and Turner/Finley letter brief on Appellant, and
informed him that he may retain new counsel or proceed pro se. Motion to
Withdraw as Counsel, 8/12/22, at 2; Turner/Finley Letter Brief at 2, Ex. A.
Thus, he has complied with the requirements of Turner/Finley. See Doty,
48 A.3d at 454. Appellant has not filed a response to counsel’s motion to
withdraw or letter brief. Accordingly, we proceed to conduct an independent
review of the record to determine if the appeal lacks merit.
Our review of an order denying PCRA relief is well-established. “[W]e
examine whether the PCRA court’s determination is supported by the record
and free of legal error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283-
84 (Pa. 2016) (citation & quotation marks omitted). Here, the PCRA court
determined Appellant’s second petition was untimely filed and Bradley is not
applicable.8 PCRA Ct. Supp. Op., 5/26/22, at 6-7. We agree.
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8 It appears the PCRA court has misconstrued Appellant’s argument as to
which prior counsel he claims was ineffective. See PCRA Ct. Supp. Op. at 6-
7 (stating Appellant raises an ineffectiveness claim against trial/VOP counsel).
Appellant’s PCRA petition and present Counsel’s Turner/Finley letter brief
each raise an ineffectiveness claim against Appellant’s prior PCRA counsel
Attorney Levin. See Appellant’s Pro Se Motion for Post Conviction Collateral
(Footnote Continued Next Page)
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The statutory requirement that a PCRA petition must be filed within one
year of the date the judgment of sentence becomes final is a “jurisdictional
deadline” and a PCRA court may not ignore the untimeliness of a petition to
address the merits of the issues raised therein. Commonwealth v.
Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019) (citation omitted); see also
42 Pa.C.S. § 9545(b)(1).
Here, Appellant’s judgment of sentence was final on November 26, 2012
— 90 days after the Pennsylvania Supreme Court denied his petition for
allocatur, and the time for filing a writ of certiorari with the United States
Supreme Court expired. See U.S. Sup. Ct. R. 13. Therefore, he had until
November 26, 2013, to file a timely PCRA petition, which he did on December
17, 2012. However, the present petition — Appellant’s second — was filed on
September 24, 2019, almost 6 years after the filing deadline, and is, therefore,
facially untimely.
Nevertheless, Section 9545(b)(1) provides three exceptions to the time
for filing requirement:
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
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Relief, 9/24/19, at 4 (asking the PCRA court to “acknowledge that [his]
counsel [Attorney] Levin was indeed ineffective. . . ); Turner/Finley Letter
Brief at 10 (noting Appellant raised his claim against Attorney Levin). This
does not impact our review as we may affirm on any basis. See
Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018) (“[A]n
appellate court is not bound by the rationale of the trial court and may affirm
on any basis if the record supports it.”).
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judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition invoking one of the timeliness
exceptions must “be filed within one year of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2). “It is the petitioner’s burden to
allege and prove that one of the timeliness exceptions applies.”
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (emphasis
added).
Neither Appellant nor Counsel allege any of the above timeliness
exceptions. Instead, in his Turner/Finley letter brief, Counsel argues
Appellant’s petition is timely filed under Bradley. Turner/Finley Letter Brief
at 8-9. Specifically, he asserts Bradley permits an appellant to file a timely
petition raising prior PCRA counsel’s ineffectiveness “within one year of the
denial of allocatur[.]” See id. We conclude however, that Bradley is
inapplicable to Appellant’s petition.
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In Bradley, the Pennsylvania Supreme Court permitted review to
“consider whether the current process for the enforcement of the right to
effective counsel in a first PCRA proceeding is adequate, and if not, whether
another process is appropriate.” Bradley, 261 A.3d at 386. At that time, a
petitioner was required to raise claims of PCRA counsel’s ineffectiveness in a
response to the PCRA court’s Pa.R.Crim.P. 907 notice of intent to dismiss the
petition. See id. The failure to do so would result in waiver of the claims.
Id.
Recognizing the impracticability of that procedure, the Bradley Court
held “that a PCRA petitioner may, after a PCRA court denies relief, and after
obtaining new counsel or acting pro se, raise claims of PCRA counsel’s
ineffectiveness at the first opportunity to do so, even if on appeal.” Bradley,
261 A.3d at 401 (footnote omitted). However, the Court further opined:
[W]e deem the consideration on collateral appeal of claims of
PCRA counsel ineffectiveness to spring from the original petition
itself, and that doing so does not amount to impermissibly
allowing a “second or subsequent” serial petition — the concern of
our Court in [Commonwealth v.] Lawson[, 549 A.2d 107 (Pa.
1988)] and the General Assembly in its 1988 amendments to the
PCRA. Lawson, 549 A.2d at 108; 42 Pa.C.S. § 9545(b)(1).
Accordingly, we reject the notion that considering ineffectiveness
claims on collateral appeal constitutes a prohibited serial petition,
violating the PCRA’s one-year time bar.18
18 We decline to adopt the approach . . . that would deem a
petitioner’s “discovery” of initial PCRA counsel’s ineffective
assistance to constitute a “new fact” that was unknown to
petitioner, allowing such petitioner to overcome, in a
successive petition, the PCRA’s time bar provision under the
“new fact” exception. See 42 Pa.C.S. § 9545(b)(1)(ii). We
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have repeatedly rejected such an understanding of the “new
fact” exception to the PCRA’s one-year time bar.
Id. at 404 & n.18. See also id. at 406 (Dougherty, J., Concurring)
(“Importantly, our decision today does not create an exception to the
PCRA’s jurisdictional time-bar, such that a petitioner represented by the
same counsel in the PCRA court and on PCRA appeal could file an untimely
successive PCRA petition challenging initial PCRA counsel’s ineffectiveness
because it was his first opportunity to do so[.]”) (quotation marks omitted &
emphasis added).
The Bradley Court came to the above conclusions based on a PCRA
petitioner’s right to the appointment of counsel for a first petition, as well as
the right that counsel provide effective assistance. See Bradley, 261 A.3d at
391. Our Court has concluded in prior unpublished decisions that Bradley
does not permit petitioners to file subsequent PCRA petitions in order to
challenge prior PCRA counsel’s ineffective assistance.9 See Commonwealth
v. Dixon, 1145 EDA 2022, 2022 WL 17973240 at *3 (Pa. Super. Dec. 28,
2022) (concluding “Bradley does not trigger the [newly recognized
constitutional right] timeliness exception [because it] is properly understood
as a reassessment of appellate procedure in cases involving claims for
collateral relief[, and not] a decision by the Pennsylvania Supreme Court which
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9 We may cite unpublished non-precedential memorandum decisions of this
Court filed after May 1, 2019, for their persuasive value. See Pa.R.A.P.
126(b)(1)-(2).
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recognizes a new and retroactive constitutional right outside the permissible
filing period provided under the PCRA.”); Commonwealth v. Parkinson,
1286 EDA 2022, 2022 WL 5237927 at *3 (Pa. Super. 2022) (holding “Bradley
did not create a new, non-statutory exception to the PCRA time bar”).
Because here, Appellant challenges prior counsel’s ineffectiveness in a second
PCRA petition, Bradley does not apply. See Bradley, 261 A.3d at 404 &
n.18. Accordingly, Appellant’s claim that his petition is timely filed under
Bradley is meritless and no relief is due. See id.; Whiteman, 204 A.3d at
450; see also 42 Pa.C.S. § 9545(b)(1).
Moreover, even if Appellant’s petition was timely filed, he would not be
entitled to relief. He first raises a claim pertaining to the discretionary aspects
of his sentence. We note that “[c]hallenges to the discretionary aspects of
sentencing are not cognizable under the PCRA.” Commonwealth v. Fowler,
930 A.2d 586, 593 (Pa. Super. 2007). Furthermore, this claim has been
previously litigated and as such, is ineligible for PCRA review. See 42 Pa.C.S.
§ 9543(a)(3) (providing that a petitioner must plead and prove by a
preponderance of the evidence that the allegation of error has not been
previously litigated); see also Commonwealth v. Spotz, 18 A.3d 244, 281
(Pa. 2011) (previously litigated claims are not cognizable under the PCRA).
Next, Appellant alleges Attorney Levin was ineffective when
representing Appellant in his first PCRA proceedings and subsequent appeal.
As present PCRA counsel points out in his Turner/Finley letter brief, Appellant
does not allege how Attorney Levin was ineffective or how this purported
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ineffectiveness prejudiced him. See Turner/Finley Letter Brief at 10. See
also Commonwealth v. Bishop, 266 A.3d 56, 62 (Pa. Super. 2021) (to
prevail on a claim of ineffective assistance, a petitioner must prove: (1) the
claim has arguable merit; (2) counsel had no reasonable basis for their
conduct; and (3) the petitioner was prejudiced). Thus, Appellant has not
established that Attorney Levin was ineffective, and no relief is due. See id.Because we agree with the PCRA court’s determination that Appellant’s
petition was untimely filed, and he has failed to plead and prove the
applicability of any of the PCRA’s timeliness exceptions, we affirm the order
dismissing his serial petition.
Petition to withdraw granted and order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2023
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