Com. v. Ferrer, C., Jr.

J. A20015/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CLAUDIO FERRER JR., : No. 1561 MDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered May 4, 2017,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0007348-2015
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 18, 2019
Claudio Ferrer, Jr., appeals from the May 4, 2017 aggregate judgment
of sentence of 15 to 30 months’ imprisonment imposed after a jury found him
guilty of possession with intent to deliver marijuana (“PWID”), possession of
a controlled substance (cocaine), and possession of drug paraphernalia.1 After
careful review, we affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows:
On August 28, 2015, Officer Timothy Clymer of the
York County Police Department initiated a traffic stop
of [appellant’s] vehicle for a suspended registration
plate. Officer Clymer and his partner, Officer
Daniel Kling, detected the unmistakable aroma of
fresh marijuana emanating from the vehicle. A lawful
warrantless search of the vehicle yielded two (2) tied
and knotted clear plastic baggies containing
1 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively.
J. A20015/19
crack-cocaine, twenty-two (22) smaller zipped
baggies containing marijuana, packaging materials,
and a digital scale. Officer Clymer placed [appellant]
under arrest after a field test of the substances
returned positive results.
George Marros, Esquire [(hereinafter, “trial counsel”)]
represented [appellant] during trial proceedings. In
advance of trial, the Commonwealth calculated
[appellant’s] prior record score as “3” and
subsequently communicated this calculation to [trial]
counsel. A jury trial was held on November 16, 2016,
through November 17, 2016. During trial, the
Commonwealth withdrew [the PWID cocaine charge.]
At the conclusion of the trial, a jury unanimously
convicted [appellant] of possession of drug
paraphernalia, [PWID] marijuana, and possession of
cocaine. [The trial court] ordered a pre-sentence
investigation report[,] which ultimately reflected
[appellant’s] prior record score as “5.” [Appellant]
was sentenced on May 4, 2017 [to an aggregate term
of 15 to 30 months’ imprisonment, consecutive to a
federal sentence he was serving.]
[Appellant] declined to file a post-sentence motion or
take direct appeal. On August 10, 2017, [appellant]
filed a timely pro se petition pursuant to the Post[
]Conviction Relief Act [(“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546,] claiming that trial counsel was
ineffective for advising him incorrectly about the
sentence he faced should he proceed to trial. On
August 25, 2017, [the trial court] granted
[appellant’s] petition to proceed in forma pauperis
and appointed John Hamme, Esquire to amend
[appellant’s] petition. Attorney Hamme filed an
amended petition on October 11, 2017. On
December 4, 2017, Attorney Hamme filed a petition
to withdraw as counsel due to his employment
separation from York County’s conflict counsel panel
and the Honorable Michael E. Bortner appointed
Christopher D. Moore, Esquire the same day to
represent [appellant].
....
-2-
J. A20015/19
The PCRA hearing convened on April 3, 2018.
Justin Talarowski, Esquire represented the
Commonwealth. [Appellant], represented by
Attorney Moore, attended the hearing via
teleconference. [Trial counsel] and [appellant]
testified for the defense and Jared Mellot, Esquire
testified on behalf of the Commonwealth. During the
hearing, Attorney Moore further developed
[appellant’s] argument to claim that trial counsel’s
ineffectiveness was borne out of the trial prosecutor’s
indication, prior to trial, that [appellant’s] prior record
score was “3” and that had trial counsel properly
articulated to [appellant] that his prior record score
was actually “5”[, appellant] would have accepted the
Commonwealth’s offer to circumvent serving a
lengthier sentence of imprisonment. The point of
contention, however, is whether an offer was actually
extended to [appellant] and if so, the nature of such
offer and whether [appellant] detrimentally relied on
any misinformation relative to the offer.
After taking the matter under advisement, in the
interest of justice, [the trial court] issued an Order on
April 19, 2018, granting PCRA relief insofar as
sua sponte reinstating [appellant’s] post-sentence
and direct appeal rights nunc pro tunc and
permitting [appellant] the opportunity to file a
post-sentence motion pursuant to Pa.R.Crim.P.
720(B)(1)(a). [Appellant] filed a “Post Sentence
Motion/Motion for Resentencing” on April 24, 2018,
essentially redirecting [the trial court] back to
[appellant]’s PCRA claim. The Commonwealth filed an
immediate response on April 27, 2018, moving [the
trial court] to reconsider its order entered April 19,
2018. [The trial court] denied the Commonwealth’s
motion on May 17, 2018.
Trial court opinion, 8/30/18 at 2-6 (extraneous capitalization and footnote
omitted).
-3-
J. A20015/19
Thereafter, on August 22, 2018, the trial court entered an order denying
appellant’s post-sentence motion. The trial court filed an opinion in support
of this order on August 30, 2018, concluding that the claim appellant alleged
in his post-sentence motion was premised on the ineffectiveness of his trial
counsel and was “better suited for review by the PCRA court.” (Id. at 6.) This
timely appeal followed.2
Although appellant has failed to include a statement of questions
involved in his brief, in direct violation of Pennsylvania Rules of Appellate
Procedure 2111(a)(4) and 2116(a), we are able to discern the issue appellant
wishes this court to review from the “Argument” section of his brief. The crux
of appellant’s claim is that the trial court abused its discretion in denying his
post-sentence motion for resentencing because trial counsel was ineffective
for incorrectly advising him of his prior record score under the sentencing
guidelines. (Appellant’s brief at 10-17.) Appellant contends that had trial
counsel given him accurate information on his potential sentence, he would
have forgone trial and accepted the plea offer allegedly offered by the
Commonwealth. (Id. at 14-15.) Appellant avers that because “the record
indicates [he] relied on incorrect advice of [trial] counsel and was prejudiced
[he] should be granted a resentencing hearing for the judge to fashion as an
equitable remedy.” (Id. at 10.)
2 The record reflects that appellant and the trial court have complied with
Pa.R.A.P. 1925.
-4-
J. A20015/19
Upon review, we agree with the trial court that appellant’s
ineffectiveness claim is premature. Instantly, the PCRA court sua sponte
granted appellant PCRA relief by reinstating his direct appeal rights nunc pro
tunc after concluding that he was not properly advised of these rights at
sentencing, in an attempt “to afford [him] the opportunity to address
potentially waivable issues before the trial court first within the
parameters of a Post-Sentence Motion.” (PCRA court order, 4/19/18 at ¶ 1;
see also trial court opinion, 8/30/18 at 5 n.1 (emphasis added).) The claim
appellant raised in his post-sentence motion, however, is premised solely on
trial counsel’s alleged ineffectiveness.
In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our supreme
court reaffirmed the general rule first set forth in Commonwealth v. Grant,
813 A.2d 726 (Pa. 2002), that “claims of ineffective assistance of counsel are
to be deferred to PCRA review; trial courts should not entertain claims of
ineffectiveness upon post-verdict motions; and such claims should not be
reviewed upon direct appeal.” Holmes, 79 A.3d at 576 (footnote omitted).
Our supreme court has recognized that a defendant may only raise
ineffectiveness claims in post-sentence motions and on direct appeal in very
limited circumstances, none of which apply here.3
3 In Commonwealth v. Delgros, 183 A.3d 352 (Pa. 2018), the court
summarized the following exceptions to the general deferral rule:
The first exception . . . affords trial courts discretion
to entertain ineffectiveness claims in extraordinary
-5-
J. A20015/19
Accordingly, we agree with the trial court that appellant’s ineffectiveness
claim should be raised on collateral review pursuant to the PCRA.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2019
circumstances where a discrete claim of trial counsel
ineffectiveness is apparent from the record and
meritorious to the extent that immediate
consideration best serves the interests of justice. The
second exception . . . gives trial courts discretion to
address ineffectiveness claims on post-sentence
motions and direct appeal if there is good cause shown
and the defendant knowingly and expressly waives his
entitlement to seek subsequent PCRA review of his
conviction and sentence.
Id. at 360, citing Holmes, 79 A.3d at 563-564. The third exception requires
“trial courts to address claims challenging trial counsel’s performance where
the defendant is statutorily precluded from obtaining subsequent PCRA
review.” Delgros, 183 A.3d at 361.
Here, appellant did not knowingly or expressly waive his entitlement to
seek subsequent PCRA review of his conviction, and at present, the record is
unclear as to the extent of the plea offer the Commonwealth allegedly made
to him; whether said plea offer was more favorable than the sentence actually
imposed; and whether appellant relied on trial counsel’s misinformation
relative to this offer, to his detriment. Additionally, appellant is not statutorily
precluded from obtaining subsequent review under the PCRA.
-6-
J. A20015/19
-7-