Com. v. Johnson, S.

J-S39029-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SIR ANTHONY JOHNSON :
:
Appellant : No. 159 MDA 2018
Appeal from the PCRA Order January 5, 2018
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000462-2015,
CP-35-CR-0001855-2011, CP-35-CR-0002888-2009,
CP-35-CR-0002889-2009
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 07, 2018
Sir Anthony Johnson (Appellant) appeals pro se from the order
dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
We summarize the relevant facts and procedural history as follows. On
September 9, 2016, Appellant pled guilty to one count of possession with the
intent to deliver a controlled substance1 at docket number CP-XX-XXXXXXX-
2015. On November 1, 2016, the trial court sentenced Appellant to five to
ten years of incarceration followed by two years of probation. Additionally,
the trial court revoked Appellant’s probation at docket numbers CP-35-CR-
0001855-2011, CP-35-CR-0002888-2009, and CP-35-CR-0002889-2009, and
____________________________________________
1 35 P.S. § 780-113(a)(30).
J-S39029-18
resentenced him to an additional consecutive term of five years of probation.
Appellant did not file a direct appeal.
On May 19, 2017, Appellant filed a pro se PCRA petition and on June 9,
2017, the PCRA court appointed counsel to represent Appellant in his PCRA
proceedings. On July 24, 2017, PCRA counsel filed a petition to withdraw as
counsel and a no-merit letter pursuant to pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988). On November 29, 2017, after confirming that PCRA
counsel’s petition to withdraw and no-merit letter satisfied the technical
mandates of Turner/Finley and conducting an independent review of the
record, the PCRA court entered an order granting PCRA counsel’s petition to
withdraw. The same day, the PCRA court issued notice of its intent to dismiss
Appellant’s PCRA petition without a hearing pursuant to Rule 907 of the
Pennsylvania Rules of Criminal Procedure. On December 22, 2017, Appellant
filed a response to the PCRA court’s Rule 907 notice. On January 5, 2018, the
PCRA court dismissed Appellant’s PCRA petition. This timely appeal followed.
On January 24, 2018, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure. As of the date the PCRA court
transmitted the record to this Court, Appellate had not filed a Rule 1925(b)
statement.
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On appeal, Appellant presents the following issue for review: “Did PCRA
[c]ounsel render ineffective assistance by not raising guilty plea counsel’s
ineffectiveness for advising [Appellant] to enter an unenforceable plea.”
Appellant’s Brief at 4. However, we are precluded from reviewing this claim
because, by failing to file a Rule 1925(b) statement, Appellant has failed to
preserve it.
It is well-settled that “in order to preserve their claims for appellate
review, Appellants must comply whenever the trial court orders them to file a
Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any
issues not raised in a 1925(b) statement will be deemed waived.”
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). In
Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011), our Supreme Court
explained:
Our jurisprudence is clear and well-settled, and firmly
establishes that: Rule 1925(b) sets out a simple
bright-line rule, which obligates an appellant to file
and serve a Rule 1925(b) statement, when so
ordered; any issues not raised in a Rule 1925(b)
statement will be deemed waived; the courts lack the
authority to countenance deviations from the Rule’s
terms; the Rule’s provisions are not subject to ad hoc
exceptions or selective enforcement; appellants and
their counsel are responsible for complying with the
Rule’s requirements; Rule 1925 violations may be
raised by the appellate court sua sponte, and the Rule
applies notwithstanding an appellee’s request not to
enforce it; and, if Rule 1925 is not clear as to what is
required of an appellant, on-the-record actions taken
by the appellant aimed at compliance may satisfy the
Rule.
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Id. at 494 (footnote omitted).
Because the PCRA court ordered Appellant to file a Rule 1925(b)
statement and he failed to do so, Appellant has waived all issues on appeal.
Accordingly, Appellant is not entitled to relief.2
Even if he had preserved the issue he raises in his appellate brief,
Appellant would not be entitled to relief. Although his brief is far from clear,
as best we can discern, Appellant argues that his plea counsel was ineffective
for failing to ensure that he received a boot camp sentence in accordance with
his plea agreement. See Commonwealth v. Hernandez, 79 A.3d 649, 653
(Pa. Super. 2013) (“right to competent counsel extends to the plea bargain
process”). Appellant also asserts that counsel’s alleged error caused his plea
to be unknowing, involuntary, and unintelligent. The record, however, does
not support these claims.
The record reflects that Appellant’s written plea agreement only
indicated that he would be boot camp eligible, it did not guarantee him a
boot camp sentence. Plea Agreement, 9/9/16, at 2. The trial court, pursuant
to the agreement, did indeed make Appellant boot camp eligible. N.T.,
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2 Appellant’s pro se status does not relieve him of his duty to comply with
Pa.R.A.P. 1925(b). Although counsel can be ineffective per se for failing to
file a Rule 1925(b) statement, “[i]t is a longstanding principle that a pro se
litigant cannot be ineffective on his or her own behalf.” Commonwealth v.
Boniella, 158 A.3d 162, 164 (Pa. Super. 2017). Thus, this Court has declined
to review issues raised by a pro se appellant where the appellant has failed to
comply with the mandates of Rule 1925(b). Id.-4-
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11/1/16, at 5. Thus, Appellant received the benefit of his plea agreement and
plea counsel was not ineffective.
Finally, our review of both the oral and written guilty plea colloquies
confirms that Appellant’s guilty plea was knowing, voluntary, and intelligent.
The record reveals that the trial court specifically addressed with Appellant
the six subjects required by Rule 590 of the Pennsylvania Rules of Criminal
Procedure, including that Appellant understood the nature of the charges to
which he pled guilty, the factual basis for the plea, that he had the right to
trial by jury, that he is presumed innocent until found guilty, the permissible
range of sentences for the offense charged, and that the trial court was not
bound by the terms of the plea agreement. N.T., 9/9/16, at 2-7; Written Plea
Colloquy, 9/9/16, see also Pa.R.Crim.P. 590.
For the above reasons, Appellant is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2018
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