Com. v. Meyers, C

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CHARLES T. MEYERS
Appellant No. 3323 EDA 2012
Appeal from the PCRA Order October 26, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010918-2007
BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 10, 2014
Charles T. Meyers appeals1 from the trial court’s order dismissing,
without a hearing, his petition filed pursuant to the Post Conviction Relief Act
(PCRA).2 In 2008, a jury convicted Meyers of third-degree murder,
possessing an instrument of crime (PIC) and carrying a firearm without a
license. The charges stemmed from Meyers’ point-blank shooting of a 14-
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*
Retired Senior Judge assigned to the Superior Court.
1
Our standard and scope of review for the denial of a PCRA petition is well-
settled. An appellate court reviews the PCRA court's findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.
Commonwealth v. Spotz, 84 A.3d 294 (Pa. 2014). The scope of review is
limited to the findings of the PCRA court and the evidence of record, viewed
in the light most favorable to the prevailing party at trial. Id.
2
42 Pa.C.S. §§ 9541-9546.
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year-old boy riding his bike down the middle of the street where Meyers was
driving. Meyers fled the scene at a high rate of speed, ultimately colliding
with another vehicle and continued to flee from officers until they
successfully apprehended him.
Meyers was sentenced to serve 20-40 years’ imprisonment on the
murder conviction, with consecutive sentences of 2½-5 years in prison for
PIC and 3½-7 years’ imprisonment for the firearm conviction (resulting in an
aggregate sentence of 26-52 years in prison). Meyers filed a timely notice
of appeal with our Court; his judgment of sentence was affirmed.
Commonwealth v. Meyers, No. 2782 EDA 2008 (Pa. Super. filed Oct. 13,
2009). On July 9, 2010, Meyers filed a pro se Post Conviction Relief Act
(PCRA) petition. Counsel was appointed and filed an amended petition. On
October 26, 2012, the court dismissed Meyers’ petition. On November 6,
2012, Meyers filed a timely notice of appeal from the denial of PCRA relief.
On November 13, 2012, the trial court filed a Pa.R.A.P. 1925(b) order. On
November 30, 2012, Meyers filed a timely Rule 1925(b) statement of errors
complained of on appeal. Finally, on March 7, 2014, the trial court filed its
Rule 1925(a) opinion in support of its decision.
On appeal, Meyers contends that trial counsel was ineffective for
failing to: (1) file a motion to reconsider his sentence; (2) ensure that the
certified record contained such a motion; and (3) include a Pa.R.A.P. 2119(f)
statement with respect to his discretionary aspect of sentencing claim in his
appellate brief.
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On direct appeal from his judgment of sentence, Meyers raised two
issues. The first issue, concerning the propriety of the D.A.’s cross-
examination of defense character witnesses, was addressed on its merits by
our Court. The second issue Meyers raised on direct appeal involved the
adequacy of the trial court’s reasons for departing from the sentencing
guidelines for his firearm and PIC convictions. Because the docket did not
reflect that any post-sentence motion had been filed and because the
certified record did not contain a copy of any such motion,3 our Court found
the issue waived on appeal. See Meyers, supra. Moreover, our Court
determined that even if counsel had filed a post-sentence motion and
included it in the record on appeal, the fact that counsel failed to file a
Pa.R.A.P. 2119(f) statement in Meyers’ appellate brief would also result in
waiver of the sentencing issue due to the Commonwealth’s objection to such
omission. Id.
Although Meyers’ discretionary aspect of sentence claim may have
been waived on appeal due to counsel’s inaction, because Meyers was not
entirely deprived of his right to appeal, as would be the case if counsel had
failed to file a Rule 1925(b) statement, our Court must apply the traditional
three-prong ineffectiveness test to determine whether Meyers is entitled to
relief. Cf. Commonwealth v. Halley, 870 A.2d 795, 801 (Pa. 2005)
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3
Interestingly, a copy of an order denying a request for a reconsideration of
sentencing hearing is included in the record. Order, 9/15/08.
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(because failure to file and serve timely Rule 1925(b) Statement is failure to
perfect appeal, such action is presumptively prejudicial and "clear"
ineffectiveness).
To prevail on a claim that counsel was constitutionally ineffective, the
appellant must overcome the presumption of competence by showing that:
(1) his underlying claim is of arguable merit; (2) the particular course of
conduct pursued by counsel did not have some reasonable basis designed to
effectuate his interests; and (3) but for counsel's ineffectiveness, there is a
reasonable probability that the outcome of the challenged proceeding would
have been different. Commonwealth v. Watson, 835 A.2d 786 (Pa.
Super. 2003). A failure to satisfy any prong of the test for ineffectiveness
will require rejection of the claim. Id. Moreover, to succeed on a PCRA
claim based on counsel's failure to file requested post-sentence motions, a
defendant must demonstrate that he suffered actual prejudice due to
counsel's lapse. Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007)
(emphasis added).
Here, Meyers claims that, post-sentence, he wanted the trial court to
reconsider “both the length and consecutive nature of the sentences
imposed.” Appellant’s Brief, at 8. Specifically, Meyers contends that the
trial court failed to consider the sentencing guidelines, failed to state on the
record the reasons for deviating from the guidelines, imposed a sentence
that is unreasonable and excessive and, finally, that in fashioning his
sentence, the court failed to consider Meyers’ age, his family history,
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education, employment history, cooperation during the pre-sentence and
mental health evaluations, and expression of remorse.
Generally, if a sentence imposed is outside the guidelines, the trial
court must indicate that it understood the suggested range and make its
reasons for imposing the sentence a part of the record. See 42 Pa.C.S. §
9721(b). Moreover, our Supreme Court has held that where the trial court
possesses a pre-sentence report, it is presumed that the court is aware of all
appropriate sentencing factors and considerations, and that where the court
has been so informed, its discretion should not be disturbed.
Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988). Furthermore, a court
can satisfy the requirement to prepare a contemporaneous written
statement of reasons for deviating from the sentencing guidelines by stating
those reasons on the record in the presence of the defendant.
Commonwealth v. Catanch, 581 A.2d 226 (Pa. Super. 1990).
Here, the trial judge clearly and thoughtfully discussed her reasons for
sentencing Meyers at the sentencing hearing. See N.T. Sentencing Hearing,
9/5/08, at 38-43. Specifically, the trial judge considered all of the evidence
presented by both sides, carefully reviewed the pre-sentence and psychiatric
reports, and listened to counsels’ arguments as well as the testimony of
family members, and witnesses from trial and from sentencing. The court
also noted that it considered the guidelines, indicating that Meyers’ murder
sentence was within the standard-range and that his firearm and PIC
convictions were above-the-guideline range. Commonwealth v. Frazier,
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500 A.2d 158 (Pa. Super. 1985) (judge's statement of reasons for sentence
made of record at sentencing in defendant's presence constitutes
contemporaneous written statement that must contain permissible range of
sentences under sentencing guidelines and, at least in summary form,
factual basis and specific reasons which compelled court to deviate from
sentencing range).
Because Meyers’ discretionary aspect of sentence claim has no
arguable merit, he could not prevail on a claim of counsel’s ineffectiveness.
Watson, supra. Moreover, because Meyers cannot demonstrate that he
suffered actual prejudice due to counsel’s failure to file a post-sentence
motion or include a 2119(f) statement in his appellate brief, the trial court
properly dismissed his PCRA petition. Reaves, supra.
Order affirmed.4
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2014
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4
Although we are unable to discern from the record why it took 18 months
for the trial court to prepare its Rule 1925(a) opinion, we note that such
delay is harmless error because it does not change our result on appeal. In
future cases, we would prefer an explanation for such prolonged delay.
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