Com. v. Williams, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
DEMETRIUS WILLIAMS :
:
Appellant : No. 1927 EDA 2020
Appeal from the PCRA Order Entered August 28, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008031-2016
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 13, 2021
Demetrius Williams appeals pro se from the denial of his petition filed
pursuant to the Post-Conviction Relief Act, (“PCRA”), 42 Pa.C.S.A. §§ 9541 –
9546. Williams challenges the legality of his sentence and claims his trial
counsel was ineffective. We affirm.
Williams entered a non-negotiated guilty plea on January 9, 2018, for
Involuntary Manslaughter, Firearms Not to Be Carried Without a License, and
Endangering the Welfare of a Child.1 The charges stemmed from a tragic event
in which Williams’ stepdaughter accidentally shot herself with a loaded firearm
Williams placed in an open closet in his home. Sentencing was deferred for
the preparation of a presentence investigation report.
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2504(b), 6106(a), 4304(a), respectively.
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The trial court sentenced Williams on March 27, 2018, to five to ten
years’ incarceration for involuntary Manslaughter, three and a half to seven
years’ incarceration for Firearms Not to Be Carried Without a License, plus one
to two years’ incarceration for a probation violation. The court ordered
Williams to serve the sentences consecutively, for an aggregate sentence of
nine and a half to 19 years in prison. The court imposed no further penalty on
the endangering the welfare of a minor charge. The trial court denied Williams’
motion for reconsideration of his sentence, and he did not file a direct appeal.
Williams then filed this timely, first, pro se PCRA petition. The court
appointed counsel, who subsequently filed a Turner/Finley2 letter, averring
that there were no meritorious issues. The court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss the petition, and Williams filed a pro se response.
Ultimately, the court permitted counsel to withdraw in an order dated August
24, 2020 and dismissed Williams’ PCRA petition in an order dated August 28,
2020. This timely appeal followed.3
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2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3 The court’s August 24, 2020 order also purports to dismiss Williams’ petition,
but we will consider the August 28, 2020 order the operative order for appeal
purposes. Therefore, in order to be timely, Williams’ notice of appeal was
required to be filed by September 28, 2020. See Pa.R.A.P. 903(a)(notice of
appeal to be filed within 30 days after the entry of the order from which the
appeal is taken). Williams dated his instant pro se notice of appeal, September
26, 2020, but the notice was docketed on September 29, 2020. However,
pursuant to the prisoner mailbox rule, we deem Williams’ notice of appeal to
be filed on September 26, 2020 and therefore timely. See Commonwealth
(Footnote Continued Next Page)
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Williams raises the following issues (verbatim):
1) Did the Trial Court and/or PCRA court error, abuse its
discretion, or error in law when it imposed a sentence
greater than the lawful maximum at sentencing, and/or
when the PCRA court did not correct the error on appeal?
2) Whether trial counsel[‘s] failure to object to the illegal
sentence imposed at sentencing was ineffective assistance
of counsel? Whether PCRA counsel was ineffective
§9543(a)(2)(II), for not arguing trial counsel’s
ineffectiveness pertaining to the underlying claim? Whether
both counsels were ineffective for not arguing the
underlying claim that resulted in a sentence greater than
the lawful maximum §9543(A)(2)(VII)?
Williams’ Br. at 4.
We review the denial of a PCRA petition to determine whether the record
supports the court’s findings and whether the ruling is free of legal error. See
Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa.Super. 2012).
Williams first argues that the trial court imposed an excessive sentence
by considering his multiple past arrests on weapons charges. He also asserts
that the sentencing court miscalculated of his prior record score and offense
____________________________________________
v. Crawford, 17 A.3d 1279, 1281 (Pa.Super. 2011) (“Under the prisoner
mailbox rule, we deem a pro se document filed on the date it is placed in the
hands of prison authorities for mailing”). Further, the docket fails to specify
the date the August 28, 2020 order was served, as set forth under
Pa.R.Crim.P. 114(C)(2)(c). However, attached to the order was proof of
service confirming the order was sent on the same date as the order was
dated. Further, Williams clearly received service because he filed a timely
notice of appeal. Thus, we will “regard as done that which ought to have done
and treat the appeal . . . as timely, i.e., treat [the] appeal as if the Clerk
inscribed the date of service on the docket [as of the date the order was filed].”
Commonwealth v. Carter, 122 A.3d 388, 391 (Pa.Super. 2015) (citing
Commonwealth v. Howard, 659 A.2d 1018, 1021 n. 12 (Pa.Super. 1995)).
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gravity score, and that its application of the deadly weapons enhancement
was erroneous. He appears to contend that these alleged errors resulted in a
sentence greater than the lawful maximum, rendering his sentence illegal.
However, Williams failed to assert either of these issues in his Pa.R.A.P.
1925(b) statement. Williams therefore waived these claims. Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived”).
Moreover, Williams’ claims are also waived because they concern the
discretionary aspects of his sentence, which are not cognizable under the
PCRA. See Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007);
Commonwealth v. Medley, 725 A.2d 1225, 1228 (Pa.Super. 1999);
Commonwealth v. Archer, 722 A.2d 203, 211 (Pa. Super. 1998).
Williams also argues that his sentence was illegal because his
convictions for Involuntary Manslaughter, Firearms Not to Be Carried Without
a License, and Endangering the Welfare of a Child should have merged for
sentencing purposes. Our standard of review for a merger claim is de novo
and our scope of review is plenary. Commonwealth v. Tanner, 61 A.3d
1043, 1046 (Pa.Super. 2013). Convictions merge for sentencing purposes
where: “(1) the crimes arise from a single criminal act; and (2) all of the
statutory elements of one of the offenses are included within the statutory
elements of the other.” Commonwealth v. Kimmel, 125 A.3d 1272, 1276
(Pa.Super. 2015) (en banc) (quoting Commonwealth v. Raven, 97 A.3d
1244, 1249 (Pa.Super. 2014). “To determine whether offenses are greater
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and lesser included offenses, we compare the elements of the offenses.”
Commonwealth v. Watson, 228 A.3d 928, 941 (Pa.Super. 2020) (internal
citations and quotation marks omitted). “If both crimes require proof of at
least one element that the other does not, then the sentences do not merge.”
Id.“A person is guilty of involuntary manslaughter when as a direct result
of the doing of an unlawful act in a reckless or grossly negligent manner, or
the doing of a lawful act in a reckless or grossly negligent manner, he causes
the death of another person.” 18 Pa.C.S.A. § 2504(a). While involuntary
manslaughter is typically graded as a misdemeanor of the first degree, it is
considered a felony of the second degree where the factfinder determines that
“the victim is under 12 years of age and is in the care, custody or control of
the person who caused the death.” 18 Pa.C.S.A. § 2504(b). A person is guilty
of firearms not to be carried without a license pursuant to our criminal code
when the person, “carries a firearm in any vehicle or any person who carries
a firearm concealed on or about his person, except in his place of abode or
fixed place of business, without a valid and lawfully issued license” 18
Pa.C.S.A. § 6106(a)(1).
In this case, the trial court declined to impose any further penalty on
the Endangering the Welfare of a Child conviction. Thus, Williams’ argument
that his sentence for this charge should have merged is moot. Furthermore,
Williams fails to identify elements common to Involuntary Manslaughter and
Firearms Not to Be Carried Without a License . Indeed, the trial court correctly
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concluded that these two charges contain entirely different elements and
therefore could not merge for sentencing purposes. Thus, Williams’ first issue
is devoid of merit.
Next, Williams claims that both his trial and PCRA counsel were
ineffective for failing to argue that the charges of Involuntary Manslaughter,
Firearms Not to Be Carried Without a License, and Endangering the Welfare of
a Child should have merged for sentencing purposes. A petitioner who raises
a claim of ineffective assistance of counsel must overcome the presumption
that counsel is effective. See Commonwealth v. Mason, 130 A.3d 601, 618
(Pa. 2015). To do so, the petitioner must plead and prove all of the following:
“(1) the legal claim underlying the ineffectiveness claim has arguable merit;
(2) counsel’s action or inaction lacked any reasonable basis designed to
effectuate petitioner’s interest; and (3) counsel’s action or inaction resulted in
prejudice to petitioner.” Id. (citation omitted).
As stated above, the merger doctrine does not apply to this case. Thus,
counsel were not ineffective for failing to raise a merger claim. See
Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (“Counsel will
not be deemed ineffective for failing to raise a meritless claim”). Accordingly,
we affirm the trial court’s dismissal of Williams’ PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2021
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