Com. v. Bates, W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIE BATES, :
:
Appellant. : No. 1858 EDA 2018
Appeal from the PCRA Order Entered, May 16, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0008130-2016.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JULY 10, 2019
Willie Bates appeals pro se from the order denying his first petition filed
pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
The pertinent facts and procedural history are as follows: On Monday,
August 6, 2016, at approximately 5 p.m., Bates walked up to the victim, Brent
Rafferty, on the 5800 block of Summerdale Avenue at the intersection of Alcott
Street in the City of Philadelphia. After a short conversation, Bates pulled a
firearm and shot Mr. Rafferty six times. Rafferty died from his wounds. A
nearby security camera captured the entire incident.
Following his arrest, Bates and the Commonwealth entered into
negotiations that concluded when Bates agreed to enter a negotiated guilty
plea to one count of third-degree murder, two firearm violations, and one
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* Retired Senior Judge assigned to the Superior Court.
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count of possession of an instrument of crime. In exchange, the
Commonwealth agreed to recommend an aggregate sentence of 26-55 years
of incarceration. On February 14, 2017, the trial court accepted Bates’ guilty
plea and sentenced him in accordance with the negotiated sentence. Bates
filed neither a post-sentence motion, nor a direct appeal.
On October 23, 2017, Bates filed a timely pro se PCRA petition. In this
petition, Bates claimed that the trial court lacked subject matter jurisdiction
over him because the bills of information in his case “failed to allege formal,
specific, and jurisdictionally required factual allegations.” Pro Se PCRA
Petition, 10/23/17, at ¶ 6(b). In addition, he asserted that his sentence was
illegal, and it was “increased, enhanced [or] aggravated based on facts not
alleged in the [bills] of information, admitted to by [Bates], or consented to
by [Bates] for judicial fact-finding.” Id. Finally, he alleged that trial counsel
was ineffective for failing to move to dismiss the charges based on the
defective bills of information and failing to ensure that he received a legal
sentence.
The PCRA court appointed counsel and, on March 22, 2018, PCRA
counsel filed a “no-merit” letter and motion to withdraw pursuant to the
dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On
April 9, 2018, PCRA counsel filed a supplemental Turner/Finley letter
addressing the ineffectiveness claim concerning plea counsel’s failure to raise
a jurisdictional defense to the charges the Commonwealth filed against him.
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On April 12, 2018, the PCRA court issued Pa.R.Crim.P. 907 notice of its
intention to dismiss Bates’ PCRA petition without a hearing. Bates filed a
response. On May 15, 2018, PCRA counsel filed a response to Bates’ response
to the PCRA court’s Rule 907 notice. By order entered May 16, 2018, the
PCRA court denied Bates’ PCRA petition and granted PCRA counsel’s motion
to withdraw. This appeal followed. Both Bates and the PCRA court have
complied with Pa.R.A.P. 1925.
Bates raises the following issue on appeal:
1. Did the PCRA court err in not granting PCRA relief, and
was PCRA counsel ineffective for failing to file an
amended petition asserting trial counsel’s ineffectiveness
for not advising Bates, prior to advising him to plead
guilty, that his Sixth and Fourteenth Amendment rights
were violated due to the Commonwealth’s failure to
lawfully invoke the trial court’s subject matter jurisdiction
when the Commonwealth filed a fatally defective bill of
information, that the sentencing terms of the negotiated
plea were not merely “illegal,” but unconstitutional and
violative of the Sixth and Fourteenth Amendments, and
the Commonwealth’s statutory, guided, advisory and
indeterminate sentencing scheme was unconstitutional
under the Sixth and Fourteenth Amendments?
Bates’ Brief at 2.1
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1 Bates also raises a second issue in which he raises PCRA court error and
additional ineffectiveness allegations based upon the United States Supreme
Court’s decision in Class v. U.S., 138 S. Ct. 798 (2018). In his brief, however,
Bates concedes that his claims based upon Class were not properly before the
PCRA Court. See Bates’ Brief at 28. Thus, we will not consider his second
issue further.
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Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA
appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
When the PCRA court has dismissed a petitioner’s PCRA petition without
an evidentiary hearing, we review the PCRA court’s decision for an abuse of
discretion. Commonwealth v. Roney, 79 A.2d 595, 604 (Pa. 2013). The
PCRA court has discretion to dismiss a petition without a hearing when the
court is satisfied that there are no genuine issues concerning any material
fact, the defendant is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings. Id. To obtain a
reversal of a PCRA court’s decision to dismiss a petition without a hearing, an
appellant must show that he raised a genuine issue of material fact which, if
resolved in his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing. Commonwealth v.
Blakeney, 108 A.3d 739, 750 (Pa. 2014).
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Before addressing the merits of Bates’ issue, we must first determine
whether we should quash his appeal as untimely because Bates did not meet
his burden pursuant to the “prisoner mailbox rule.” See Commonwealth v.
Demora, 149 A.3d 330, 331 (Pa. 2016) (reiterating this Court may raise the
issue of jurisdiction sua sponte). As this Court has recently reiterated “[T]he
prisoner mailbox rule provides that a pro se prisoner’s document is deemed
filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. DiClaudio, 2019 WL 2182609 at *2, ___ A.3d ___, ___
(Pa. Super. 2019) (quoting Commonwealth v. Chambers, 35 A.3d 34, 38
(Pa. Super. 2011)).
The PCRA court found that Bates failed to meet his burden:
[I]t appears that [Bates’] appeal of this Court’s order
dismissing his PCRA petition was not filed timely. A notice
of appeal is filed timely if it is filed within thirty days after
entry of the order for which the appeal is taken. Pa.R.A.P.
903. [Bates’] PCRA Petition was dismissed as meritless on
May 16, 2018, which gave [Bates] until June 14, 2018, to
file a notice of appeal. [Bates’] notice of appeal envelope
was time stamped Monday, June 18, 2018.
The Commonwealth of Pennsylvania follows the prisoner
mailbox rule, which holds that a pro se appeal by a prisoner
is considered filed on the date of delivery of the appeal to
prison authorities or when the appeal is placed in the
institution’s mailbox. Smith v. Pennsylvania Br. Of
Probation & Parole, 683 A.2d 278, 281 (Pa. 1996).
[Bates] dated his notice of appeal June 14, 2018, the last
day to file the notice timely. There is no indication when the
notice of appeal was delivered to prison authorities, but the
posted date stamped on the front of the envelope is Monday
June 18, 2018, four days after time had run to file a timely
notice of appeal. There is no evidence that [Bates] delivered
his notice of appeal to prison authorities on June 14, 2018.
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Absent proof that the notice of appeal was delivered to
prison authorities, or placed in the institution’s mailbox on
June 14, 2018, it appears that [Bates’] notice of appeal is
untimely, barring review.
PCRA Court Opinion, 8/23/18, at 7. The Commonwealth echoes the PCRA
court’s belief that Bates has failed to meet his burden of proof under the
prisoner mailbox rule. See Commonwealth’s Brief at 8-10.
We decline to quash this appeal. As correctly acknowledged by the
Commonwealth, Bates’ deadline for filing a timely notice of appeal was Friday,
June 15, 2018. Id. at 8. The pro se notice of appeal is dated June 14, 2018.
Within his brief, Bates avers that he placed the notice of appeal in the mailing
facilities within the prison the next day. Bates’ Brief at 8. Bates further avers
that the mail is not picked up for processing on the weekends and, for that
reason, the mail was not processed until the following Monday, June 18, 2018.
See id. Given these circumstances, we conclude that the prisoner mailbox
rule should apply. We therefore reach the merits of Bates’ issue raised on
appeal.
In his sole appellate issue, Bates challenges PCRA counsel’s
ineffectiveness for failing to amend his PCRA petition to raise trial counsel’s
alleged ineffectiveness for failing to raise an issue of subject matter
jurisdiction and for failing to ensure that his sentence was not illegal.2
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2 Bates properly preserved his claim of PCRA counsel’s ineffectiveness by
raising it in his response to the PCRA court’s Rule 907 notice. See
Commonwealth v. Pitts, 981 A.2d 875, 879 n.3 (Pa. 2009).
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To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must establish, by a preponderance of the evidence,
that counsel's ineffectiveness so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,
counsel’s performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing by the
petitioner.” Id. This requires the petitioner to demonstrate that: (1) the
underlying claim is of arguable merit; (2) counsel had no reasonable strategic
basis for his or her action or inaction; and (3) petitioner was prejudiced by
counsel's act or omission. Id. at 533.
This Court has summarized the following regarding claims that the entry
of a guilty plea was the result of ineffective assistance of counsel:
A criminal defendant has the right to effective counsel
during a plea process as well as during trial. A defendant is
permitted to withdraw his guilty plea under the PCRA if
ineffective assistance caused the defendant to enter an
involuntary plea[.]
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Throughout his brief, Bates raises additional arguments, based on
federal court decisions regarding “the Commonwealth’s abdication of its Tenth
Amendment sovereign state police power” and his “newly-recognized Sixth
Amendment right to ‘self-autonomy.’” Bates’ Brief at 6-10. Because Bates
did not sufficiently raise these claims in his PCRA petition, they are not
properly before us. See generally, Commonwealth v. Colavita, 993 A.2d
874 (Pa. 2010); Pa.R.A.P. 903(a).
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We conduct our review of such a claim in accordance with
the three-pronged ineffectiveness test under section
9543(a)(2)(ii) of the PCRA. The voluntariness of the plea
depends on whether counsel’s advice was within the range
of competence demanded of attorneys in criminal cases.
Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)
(citations omitted). In essence, Bates asserts that trial counsel’s
shortcomings induced him to enter a guilty plea.
The PCRA court concluded that both claims of trial counsel’s
ineffectiveness lacked merit. At the time the Commonwealth filed bills of
information against Bates,3 Rule 560 provided as follows:
Rule 560. Information: Filing, Contents, Function
(A) After the defendant has been held for court following
a preliminary hearing or an indictment, the attorney
for the Commonwealth shall proceed by preparing an
information and filing it with the court of common
pleas.
(B) The information shall be signed by the attorney for
the Commonwealth and shall be valid and sufficient
in law if it contains:
(1) a caption showing that the prosecution is
carried on in the name of and by the authority
of the Commonwealth of Pennsylvania;
(2) the name of the defendant, or if the defendant
is unknown a description of the defendant as
nearly as may be;
(3) the date when the offense is alleged to have
been committed if the precise date is known,
and the day of the week if it is an essential
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3Rule 560(B) was amended on June 1, 2018, to add a seventh subsection
not applicable to this appeal.
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element of the offense charged, provided that
if the precise date is not known or if the offense
is a continuing one, an allegation that it was
committed on or about any date within the
period fixed by the statute of limitations shall
be sufficient;
(4) the county where the offense is alleged to have
been committed;
(5) a plain and concise statement of the essential
elements of the offense substantially the same
as or cognate to the offense alleged in the
complaint; and
(6) a concluding statement that “all of which is
against the Act of Assembly and the peace and
dignity of the Commonwealth.”
(C) The information shall contain the official or
customary citation of the statute and section thereof,
or other provision of law that the defendant is
alleged to have violated; but the omission of or error
in such citation shall not affect the validity or
sufficiency of the information.
(D) In all court cases tried on an information, the issues
at trial shall be defined by such information.
Pa.R.Crim.P. 560.
The PCRA court first found that when it filed the bills of information
against Bates, the Commonwealth fully complied with Pa.R.Crim.P. 560, which
provided the required contents of an information in order for it to be “valid
and sufficient in law.” See Pa.R.Crim.P. 560(B). As the PCRA court explained:
The Commonwealth filed a bill of information in this matter
on September 22, 2016, after [Bates] was held for court
following a preliminary hearing. The bill of information
included all the above required information including a
concise statement of each of the essential elements alleged
in the complaint, as required by § 560(B)(5). Further, the
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bill of information alleged that the offenses all occurred
within the City and County of Philadelphia. Therefore,
[Bates’] claim that this Court did not have jurisdiction over
this matter because of a defective bill of information is
meritless.
PCRA Court Opinion, 8/23/18, at 9-10.
Our review of the record supports the PCRA court’s conclusion. “To
invoke the subject matter jurisdiction of a Court of Common Pleas, the
Commonwealth must confront the defendant with a formal and specific
accusation of the crimes charged.” Commonwealth v. McNeil, 665 A.2d
1247, 1251 (Pa. Super. 1995). Here, this notice requirement was satisfied in
September 2016 when the Commonwealth filed the criminal information at
issue. “The purpose of an information is to provide the accused with sufficient
notice to prepare a defense, and to ensure that he will not be tried twice for
the same act.” Commonwealth v. Alston, 651 A.2d 1092, 095 (Pa. 1994).
“An information is sufficient if it sets forth the elements of the offense intended
to be charged with sufficient detail that the defendant is apprised of what he
must be prepared to meet, and may plead double jeopardy in a future
prosecution based on the same set of events.” Id.
Bates’ claims that the information the Commonwealth filed was
defective because it “did not charge jurisdictionally-required facts and/or
misconduct, enabling [him] to prepare a defense to the formal charges
brought by the Commonwealth, and enable him to plead double jeopardy for
the same cause.” Bates’ Brief at 4. He further contends that the criminal
information was not “sufficient and valid at law to allow the trial court, or this
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Court to ensure the facts alleged in the information were sufficient to
support a conviction.” Id. (emphasis in original). We disagree.
Bates’ claim lacks merit because “factual allegations” are not a required
component of a valid bill of information. See Pa.R.Crim.P. 560(B), supra. In
addition, Bates fails to explain how the averment that he was responsible for
“shooting” the victim did not give him adequate notice in order to prepare a
defense. See Commonwealth v. Chambers, 852 A.2d 1197, 1199 (Pa.
Super. 2004 (holding that a criminal information was not required to specify
the degree of murder). Thus, this claim of trial counsel’s ineffectiveness fails.
The trial court also found no merit to Bates’ claim of trial counsel’s
ineffectiveness regarding the legality of his sentence. The PCRA court
explained:
All of the sentences imposed were within statutory limits
allowed by law. [Bates] faced and aggregate maximum
penalty of 28.5 - 57 years. However, [Bates] was sentenced
to 26 – 55 years pursuant to the negotiated guilty plea.
Therefore, the claim that the sentence is illegal is meritless.
Further, [Bates] claims that the sentence is illegal
because he did not admit to any facts that would allow for
the maximum sentence to be imposed under the sentencing
guidelines. Claims that a trial court failed to comply with
the sentencing guidelines during sentencing constitutes a
challenge to the discretionary aspects of his sentence. See
Commonwealth v. Davis, 737 A.2d 792 (Pa. Super.
1999). However, since [Bates] entered a negotiated plea,
he is precluded from challenging the discretionary aspects
of his sentence. See Commonwealth v. Baney, 860 A.2d
127, 131 (Pa. Super. 2004), appeal denied, 877 A.2d 459
(Pa. 2005) (appellant may not challenge the discretionary
aspects of the sentence, where the terms of the sentence
were made part of the negotiated plea).
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PCRA Court Opinion, 8/23/18, at 10-11.
Once again, our review of the record supports the PCRA court’s
conclusions. Initially, to the extent Bates is claiming he presents a
constitutional challenge to his sentence, rather than a claim of illegality, the
claim fails. Bates’ constitutional challenge is both waived and baseless. The
claim is waived because it is being raised for the first time on appeal. See
Colavita, supra; Pa.R.A.P. 302(a). Moreover, the claim is baseless because,
although Bates discusses cases involving mandatory minimum sentences that
result from judicial fact-finding, see, e.g., Apprendi v. New Jersey, 530
U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), there
is no indication in the certified record that the sentence Bates negotiated with
the Commonwealth included any such mandatory sentences.4 Thus, trial
counsel cannot be deemed ineffective for failing to challenge Bates’ sentence.
In sum, both of Bates’ claims regarding the alleged ineffectiveness of
trial counsel lack arguable merit. Thus, Bates’ claim of PCRA counsel’s
ineffective for failing to file an amended petition raising these baseless claims
likewise fails
Order affirmed.
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4To the extent we understand Bates’ claim to involve the application of the
deadly weapon enhancement to the applicable sentencing guideline ranges,
we note that such enhancement does not violate Apprendi/Alleyne. See
generally, Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa.
Super. 2014) (en banc).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/19
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