Com. v. Levi, R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RAFAEL LEVI :
:
Appellant : No. 1560 MDA 2020
Appeal from the PCRA Order Entered November 18, 2020
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002832-2017
BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY KING, J.: FILED JULY 29, 2021
Appellant, Rafael Levi, appeals from the order entered in the Dauphin
County Court of Common Pleas, which dismissed his first petition filed under
the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
The PCRA court set forth the relevant facts and procedural history of
this appeal as follows:
[Appellant] was charged with a total of seven hundred
eighty-four (784) charges related to a large fraudulent
scheme dubbed “Operation Car Wash” that was investigated
by the Pennsylvania Attorney General’s Office. [Appellant]
ultimately pled guilty on March 9, 2018 to a total of thirty-
six (36) counts: [one count of conspiracy, twenty-one
counts of theft by deception, one count of failure to make
required disposition of funds, thirteen counts of insurance
fraud, and one count of washing vehicle titles].
Sentencing was deferred for completion of an evidence-
based presentence investigation and risk assessment
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(“PSI”). On June 21, 2018, [Appellant] was sentenced to
an aggregate term of five (5) to ten (10) years of
incarceration at a state correctional institution, followed by
five (5) years of probation. [Appellant] was ordered to pay
restitution in the amount of $1,500,000 joint and several
with his co-defendants…. Additionally, [Appellant’s] date to
report to prison was deferred to July 2, 2018. No direct
appeal was taken.
On February 7, 2019, [Appellant] field a Petition for
Modification of Sentence and/or Release of the Petitioner
Pursuant to 61 Pa.C.S.A. § 81. [The c]ourt denied the
petition as an untimely post-sentence motion, as well as
that [it] lacked jurisdiction pursuant to 42 Pa.C.S.A. § 5505.
On June 25, 2019, [Appellant] filed a timely Petition for
[PCRA] Relief. [The c]ourt appointed … PCRA counsel. On
December 19, 2019, [Appellant] filed a counseled Amended
[PCRA] Petition.[1] The Commonwealth filed a response on
December 31, 2019.
After reviewing the case in February 2020, [the c]ourt
attempted to set up a conference with counsel to determine
the need for an evidentiary hearing, and when it could be
scheduled. [The court was] unable to get a conference call
in before the courts closed in March 2020 due to the COVID-
19 pandemic. [The c]ourt attempted to schedule a phone
conference on April 30, 2020, but the date did not work for
all counsel. A telephone conference was eventually
scheduled, and held, on July 22, 2020, wherein it was
determined that an evidentiary hearing was necessary, and
scheduled it for August 25, 2020.
(PCRA Court Opinion, filed September 3, 2020, at 1-3) (internal footnotes
omitted).
____________________________________________
1 Appellant’s amended petition included one issue: “trial counsel failed to raise
on Post-Sentence Motion and preserve for appellate review the issue that
imposing sentence of lengthy incarceration may be a circumstance that
creates a punishment that is excessive as to constitute being too severe.”
(Amended PCRA Petition, filed 12/19/19, at ¶10).
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After conducting the evidentiary hearing, the court dismissed
Appellant’s petition on November 18, 2020. On December 15, 2020, Appellant
timely filed a notice of appeal. On December 22, 2020, the court ordered
Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal. Appellant timely filed his Rule 1925(b) statement on January
12, 2021.
Appellant raises the following issue for our review:
The PCRA Court erred by denying [Appellant’s] claims that
his counsel was ineffective, where he failed to raise on post-
sentence motion and preserve for appellate review the issue
that imposing sentence of lengthy incarceration may be a
circumstance that creates a punishment that is excessive as
to constitute being too severe, and counsel did not have a
reasonable basis for the act or omission in question and that
the failure caused prejudice to Appellant.
(Appellant’s Brief at 6).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795(2011). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 513(2007). We do not give the same deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012).
On appeal, Appellant acknowledges that he entered an open guilty plea,
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but he claims that he did not understand the consequences of his plea at the
time of entry. Appellant asserts that during plea negotiations, plea counsel
told Appellant that state prison was off the table and, at most, he would spend
twelve months in a work release center. Following sentencing, Appellant
insists he reached out to plea counsel and asked if anything could be done
about the sentence, but plea counsel insisted there was nothing he could do
about it.
Appellant maintains his sentence of imprisonment is too severe because
he suffers from advanced kidney disease. Appellant also argues that plea
counsel’s failure to challenge the sentence in a post-sentence motion was not
designed to effectuate Appellant’s best interests. Appellant contends he
suffered prejudice because plea counsel’s inaction resulted in the waiver of a
meritorious challenge to the discretionary aspects of his sentence. Appellant
concludes that plea counsel was ineffective for failing to file a post-sentence
motion challenging the sentence imposed, and the PCRA court erred by
dismissing his current petition. We disagree.
Pennsylvania law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, the petitioner is required
to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had
no reasonable strategic basis for his action or inaction; and, (3) but for the
errors and omissions of counsel, there is a reasonable probability that the
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outcome of the proceedings would have been different. Commonwealth v.
Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong
of the test for ineffectiveness will cause the claim to fail. Williams, supra.“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has forgone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-195 (internal citations omitted).
Prejudice is established when [a defendant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The defendant must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. In [Kimball, supra], we held that a “criminal
defendant alleging prejudice must show that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)
(some internal citations and quotation marks omitted).
When challenging the discretionary aspects of a sentence, an appellant
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must demonstrate that there is a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Watson, 228 A.3d 928 (Pa.Super. 2020). See also
Pa.R.A.P. 2119(f). This requirement “furthers the purpose evident in the
Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision to
exceptional cases.” Id. at 935 (quoting Commonwealth v. Phillips, 946
A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450,
174 L.Ed.2d 240 (2009)).
A substantial question regarding the propriety of a sentence exists “only
when the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000)
(quoting Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999)
(en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). A claim that
a sentence is manifestly excessive might raise a substantial question if the
appellant sufficiently articulates the manner in which the sentence imposed
violates a specific provision of the Sentencing Code or the norms underlying
the sentencing process. Commonwealth v. Mouzon, 571 Pa. 419, 435, 812
A.2d 617, 627 (2002). Bald allegations of excessiveness, however, do not
raise a substantial question to warrant appellate review. Id. at 435, 812 A.2d
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at 627.
“[A]n allegation that a sentencing court ‘failed to consider’ or ‘did not
adequately consider’ certain factors does not raise a substantial question that
the sentence was inappropriate.” Commonwealth v. Cruz-Centeno, 668
A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195(1996) (quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super.
1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)). Additionally, where
the sentencing court had the benefit of a PSI report, we can presume the court
was aware of and weighed relevant information regarding a defendant’s
character along with mitigating statutory factors. Commonwealth v.
Tirado, 870 A.2d 362, 366 n.6 (Pa.Super. 2005).
Instantly, Appellant and plea counsel appeared at the PCRA hearing.
Appellant testified that, following sentencing, he asked plea counsel “is there
anything we can do about the sentencing[.]” (N.T. PCRA Hearing, 8/25/20,
at 11). Appellant also claimed he informed plea counsel about his health
issues. (See id. at 12-13). According to Appellant, plea counsel responded
that there was nothing he could do about the sentence imposed. (Id. at 11).
Plea counsel testified about his interactions with Appellant prior to the
entry of the plea. Plea counsel advised Appellant about the maximum
sentences he faced and explained the concept of an “open” guilty plea. (Id.
at 21, 23). Plea counsel denied guaranteeing Appellant that he would receive
a particular sentence. (Id. at 22). After the court accepted Appellant’s plea
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and imposed the sentence of imprisonment, the court “read through the
colloquy giving [Appellant] his post-sentence rights in detail, and [Appellant]
had no questions and expressed understanding.” (Id. at 24).
Plea counsel admitted that he spoke with Appellant after sentencing,
and Appellant did inquire as to whether anything could be done about his
sentence:
His expression to me was is there anything we can do …
about this sentence? And my counseling, or my—my
assessment was that all of the sentences, as well as the
concurrent nature of those sentences, or the consecutive
nature of those sentences were within the discretion of the
judge. We did everything we could. We even brought forth
factors such as [Appellant’s] health and his poor health,
made the judge aware of that prior to the pronouncement
of sentence. And so there’s nothing more that I could do,
or that we could do in my assessment.
Id. at 24-25. After plea counsel provided this advice, Appellant did not ask
plea counsel to take further action. (Id. at 25).
In light of this testimony, the PCRA court determined Appellant’s
sentencing claim lacked arguable merit:
[Appellant] does not allege that he asked [plea] counsel to
file a direct appeal and [plea] counsel failed to do so.
Rather, he generally argues that he was upset with the
length of his sentence and asked [plea] counsel if there was
anything that could be done about it. [Plea] counsel
informed [Appellant] that there was no agreement with the
[Commonwealth] as to length of sentence, that sentencing
was in the discretion of the trial judge, and that he was
sentenced within the standard range. Thereafter,
[Appellant] did not request [plea] counsel to file an appeal.
(PCRA Court Opinion at 6-7).
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Here, the PCRA court credited plea counsel’s testimony and found that
Appellant did not specifically request the filing of a post-sentence motion or
notice of appeal. Because plea counsel’s testimony supports the PCRA court’s
findings, we defer to those findings. See Boyd, supra. Further, we
emphasize that the sentencing court had the benefit of a PSI report.
Therefore, we can presume that the court was aware of all relevant sentencing
considerations, including Appellant’s chronic health issues. See Tirado,
supra. Under these circumstances, the court properly determined that there
was no merit to Appellant’s ineffectiveness claim.2 See Poplawski, supra.Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/29/2021
____________________________________________
2 In his brief, Appellant also claims that plea counsel was ineffective for failing
“to provide adequate advice to allow Appellant to make an intelligent decision
regarding the guilty plea….” (Appellant’s Brief at 12). Appellant, however,
failed to include this distinct ineffectiveness claim in his amended PCRA
petition, and the claim is waived on this basis. See Commonwealth v.
Bedell, 954 A.2d 1209, 1216 (Pa.Super. 2008), appeal denied, 600 Pa. 742,
964 A.2d 893 (2009) (explaining that issues not raised in PCRA petition are
waived).
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