Com. v. Glendye, J.

J-S11033-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSHUA DAVID GLENDYE, :
:
Appellant : No. 354 MDA 2014
Appeal from the PCRA Order entered on January 20, 2014
in the Court of Common Pleas of Lebanon County,
Criminal Division, No(s): CP-38-CR-0000294-2008;
CP-38-CR-00000353-2008
BEFORE: PANELLA, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 27, 2015
Joshua David Glendye (“Glendye”) appeals from the Order dismissing
his first Petition for Relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 Additionally, counsel for Glendye has filed a Petition to Withdraw
from representation, pursuant to the dictates of Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
1
42 Pa.C.S.A. §§ 9541-9546.
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A.2d 213 (Pa. Super. 1988) (en banc).2 We grant counsel’s Petition to
Withdraw and affirm the Order dismissing Glendye’s PCRA Petition.
In its Opinion, the PCRA court set forth the relevant history underlying
the instant appeal, which we adopt as though fully stated herein. See PCRA
Court Opinion, 1/21/14, at 2-5.
After the bifurcated PCRA hearing, the PCRA court dismissed Glendye’s
Petition. Thereafter, Glendye filed the instant timely appeal. Glendye’s
counsel has filed a Petition to Withdraw from her representation of Glendye,
and an “Anders” Brief raising the following claims for our review:
A. Whether [Glendye’s PCRA] Petition was timely filed?
B. Whether [Glendye] is entitled to relief under the PCRA [] on
the basis that he was deprived of effective assistance of
counsel because his [plea c]ounsel, Attorney Allan Sodomsky,
failed to petition the Court to transfer [Glendye’s] case to
juvenile court?
“Anders” Brief at 4.
Our standard and scope of review are well-settled:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if
2
Counsel submitted a brief in the nature of an Anders brief. See Anders
v. California, 386 U.S. 738, 744 (1967) (setting forth the requirements
appointed counsel must satisfy to withdraw from representation during
direct appeal). Where counsel seeks to withdraw on appeal from the denial
of PCRA relief, a Turner/Finley “no-merit letter” is the appropriate filing.
However, “[b]ecause an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a
Turner/Finley letter.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2
(Pa. Super. 2011) (citation omitted).
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it is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court’s decision on any grounds if
the record supports it. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford
no such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.
***
The Turner/Finley decisions provide the manner for post-
conviction counsel to withdraw from representation. The
holdings of those cases mandate an independent review of the
record by competent counsel before a PCRA court or appellate
court can authorize an attorney’s withdrawal. The necessary
independent review requires counsel to file a “no-merit” letter
detailing the nature and extent of his review and list each issue
the petitioner wishes to have examined, explaining why those
issues are meritless. The PCRA court, or an appellate court if
the no-merit letter is filed before it, … then must conduct its own
independent evaluation of the record and agree with counsel that
the petition [or appeal] is without merit. . . .
Commonwealth v. Rykard, 55 A.3d 1177, 1183-84 (Pa. Super. 2012)
(some citations and footnote omitted).
Here, counsel has filed a Petition to Withdraw detailing the nature and
extent of counsel’s independent review, listing the issues that Glendye
wished to raise, and explaining why the issues lack merit. Counsel has
fulfilled the procedural requirements of Turner and Finley. Accordingly, we
next independently evaluate the record to determine whether the appeal is
without merit.
In this case, the PCRA court dismissed Glendye’s PCRA Petition as
untimely filed. A PCRA petition must be filed within one year of the date the
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petitioner’s judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(3).
The one-year time limitation is jurisdictional and a PCRA court has no power
to address the substantive merits of an untimely petition. Commonwealth
v. Abu-Jamal, 833 A.2d 719, 723-24 (Pa. 2003); Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). The PCRA provides three
exceptions to the one-year filing requirement: newly-discovered facts;
interference by a government official; and a newly-recognized constitutional
right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition asserting one of these
exceptions must also establish that the exception was raised within 60 days
of the date the claim could have been first presented. 42 Pa.C.S.A.
§ 9545(b)(2). “As such, when a PCRA petition is not filed within one year of
the expiration of direct review, or not eligible for one of the three limited
exceptions, or entitled to one of the exceptions, but not filed within 60 days
of the date that the claim could have been first brought, the [PCRA] court
has no power to address the substantive merits of a petitioner’s PCRA
claims.” Gamboa-Taylor, 753 A.2d at 783.
Here, Glendye’s judgment of sentence became final in 2008, when the
trial court accepted Glendye’s negotiated guilty plea to two counts of
robbery,3 and sentenced Glendye to an aggregate prison term of 48 months
to 10 years. Glendye filed no appeal from his judgment of sentence. Thus,
Glendye’s PCRA Petition, filed in 2013, is facially untimely.
3
See 18 Pa.C.S.A. § 3701.
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In his Amended PCRA Petition, Glendye asserted the newly discovered
facts exception to the timeliness requirement. In support, Glendye argued
that his plea counsel rendered ineffective assistance by not informing him
that the charges could be transferred to juvenile court, and by failing to file
a petition to transfer the matter to juvenile court. Amended PCRA Petition,
7/31/13, at ¶¶ 3-4. Glendye claimed that “he became aware of this
procedure around the time he filed the PCRA Petition.” Id. at ¶ 6. Glendye
further claimed that “he was not able to discover this procedure because of
his age and educational background.” Id.
In its Opinion, the PCRA court addressed Glendye’s claim, and
concluded that Glendye failed to establish the newly discovered facts
exception to the PCRA’s timeliness requirement. See PCRA Court Opinion,
1/21/14, at 7. We agree with the sound reasoning of the PCRA court, and
affirm on this basis. See id. We additionally observe the following.
The PCRA court expressly credited the testimony of Glendye’s plea
counsel, who testified that he did not believe Glendye to be high or
intoxicated during any of his meetings with Glendye. Id. at 8. The PCRA
court further credited counsel’s testimony that he had informed Glendye of
the possibility of filing a motion to transfer, but advised Glendye of the
futility of filing such a motion. Id. We defer to the PCRA court’s credibility
determinations, as they are supported in the record. See Commonwealth
v. Spotz, 84 A.3d 294, 319 (Pa. 2014) (recognizing that on review, the
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appellate court “must defer to the PCRA court’s findings of fact and
credibility determinations, which are supported by the record.”).
Because Glendye failed to establish any exception to the PCRA’s
timeliness requirement, his PCRA Petition was time-barred and the PCRA
court lacked jurisdiction to entertain the Petition. Therefore, the PCRA court
properly dismissed Glendye’s Petition.
Based upon the foregoing, we agree with Glendye’s appellate counsel
that the instant appeal lacks merit. We therefore grant counsel’s Petition to
Withdraw, and affirm the Order of the PCRA court.
Petition to Withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2015
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IN THE COURT OF COMMON PLEAS
OF LEBANON COUNTY, PENNSYLVANIA
CRIMINAL DIVISION - PCRA
COMMONWEALTH
OF PENNSYLVANIA
No. CP-38-CR-294-2008
No. CP-38-CR-353-2008
v.
JOSHUA DAVID GLENDYE
APPEARANCES:
Pier Hess, Assistant District Attorney For the Commonwealth
Elizabeth Judd, Assistant Public Defender For Joshua David Glendye
OPINION BY EBY, S.J., JANUARY 21 , 2014:
Before the Court is the Amended Petition of Joshua Glendye, Defendant, filed by
his court-appointed PCRA counsel pursuant to the Post Conviction Relief Act ("PCRA"),
42 Pa.C.S. §9541 et seq. The Defendant's Amended PCRA Petition argues he is
entitled to post-conviction relief on the basis that he was deprived of effective
assistance of counsel because his privately retained trial attorney failed to petition this
Court to transfer two adult armed robbery charges against him to juvenile court, as
authorized under 42 Pa.C.S.A. §6322. After a thorough review of the testimony and
evidence presented at a bifurcated PCRA hearing held on October 18 and October 24,
2013, the filings submitted by both parties, and the complete record of the case, we •
disagree. We will deny the relief sought by Defendant and dismiss his Petition.
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I. PROCEDURAL HISTORY
On February 29,2008, the Commonwealth filed Criminal Informations against the
Defendant alleging that he participated in two armed robberies of Lebanon County
convenience stores on January 23 and 24, 2008. At action number CP-38-CR-294-
2008, the Information alleges that the Defendant entered Top Star Express on January
23, 2008, and demanded money from the cash register while displaying a pistol. As a
result, he was charged with Robbery (18 Pa.C.S.A. §3701 (A)(1 )(ii)); Conspiracy to
Commit Robbery (18 Pa.C.S.A. §903); Simple Assault (18 Pa.C.S.A. §2701 (A)(3); and
Theft (18 Pa.C.S.A. §3921 (A). At action number CP-38-CR-353-2008, the Information
alleges that the Defendant entered the North Cornwall Township Sheetz on January 24,
2008, and demanded money from the cash register while displaying a semi-automatic
weapon. As a result, he was charged with Robbery (18 Pa.C.S.A. §3701 (A)(1 )(ii));
Conspiracy to Commit Robbery (18 Pa.C.S.A. §903); Simple Assault (18 Pa.C.S.A.
§2701 (A)(3); Conspiracy to Commit Simple Assault (18 Pa.C.S.A. §903); Theft (18
Pa.C.S.A. §3921 (A); and Conspiracy to Commit Theft (18 Pa.C.S.A. §903). The
Defendant was 17 years, nine months of ageon the dates the offenses were committed.
Attorney Allan Sodomsky was privately retained by the Defendant to represent
him on the charges. Attorney Sodomsky did not file a motion to transfer the charges
against the Defendant under 42 Pa.C.S.A. §6322(A), but instead pursued a negotiated
plea agreement with the Commonwealth. Under the plea agreement, the
Commonwealth agreed to drop the five year mandatory minimum on each armed
robbery and permit the Defendant to instead be sentenced to a minimum of 48 months
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to ten years on each robbery, with the Court to decide whether the sentences on each
action number would be consecutive or concurrent. On May 22, 2008, the Defendant
pleaded guilty pursuant to that negotiated plea agreement.
On July 2, 2008, this Court accepted the negotiated plea agreement and
sentenced the Defendant to concurrent sentences on both action numbers. Thus, in
addition to the imposition of fines and costs, the Defendant received an aggregate
prison term on both action numbers of 48 months to ten years. Immediately following
the imposition of sentence, the Court informed the Defendant of his right to appeal, and
the Defendant executed a post-sentence colloquy indicating the same. The Defendant
filed no direct appeal.
On June 10, 2013, the Defendant filed a pro se PCRA Petition alleging that this
Court had no jurisdiction to accept the Defendant's plea and sentence the Defendant,
because he was a juvenile at the time of the offenses with which he was charged. The
Petition argued the Commonwealth had improperly filed the charges directly in adult
court, without following the certification procedure specified in the Juvenile Act. On
June 13, 2013, this Court appointed the Public Defender as counsel for the Defendant
and issued a rule on the Commonwealth to show cause why a hearing should not be
held on the Defendant's Petition. On June 21, 2013, the Commonwealth filed its
response.
On July 10, 2013, we issued a detailed Order under Pa.R.Crim.P. 907(1)
indicating our intention to dismiss the Defendant's pro se Petition without a hearing. Our
Order noted that the Defendant's Petition, filed almost five years after his judgment of
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sentence became final, was untimely under the timeliness requirements of 42 Pa.C.S.A.
§9545 (b)(3) and further did not plead any exceptions to those requirements. Therefore,
we found we had no jurisdiction to consider Defendant's claims for relief. Additionally,
our July 10 Order explained that, even had the Defendant's Petition been timely or
successfully pleaded one of the enumerated exceptions to the timeliness requirements
of the Act, the Defendant would not be entitled to relief on the underlying issue of his
Petition. We noted that the Defendant had been charged with and pleaded guilty to
Robbery charged as 18 Pa.C.S.A. §3701 (A)(1 )(ii), an offense which is expressly
excluded from those offenses defined as "delinquent acts" under the Juvenile Act. Since
we concluded as a matter of law that Defendant's charges were therefore appropriately
filed directly in the Court of Common Pleas, we found that the Defendant's Petition
raised no genuine issues of fact; that the Defendant was not entitled to relief; and that
no purpose would be served by any further proceedings. Indicating our intention to
dismiss the Defendant's Petition without a hearing, we afforded the Defendant twenty
(20) days to file either an amended PCRA Petition or a response to our Order
sufficiently pleading the factual and legal bases which entitled him to relief.
On July 31, 2013, the Defendant's appointed counsel filed an Amended PCRA
Petition. The Amended Petition pleaded the §9545(b)(1 )(ii) exception to the timeliness
requirements of the Act, alleging that the law and facts surrounding his ability to petition
the court to transfer his case to juvenile court were previously unknown to him and that
he could not have known their existence by the exercise of due diligence. As to the
underlying issue of the pro se Petition, the Defendant through counsel conceded that
the Robbery charges lodged against the Defendant were properly directly filed in the
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(
Court of Common Pleas; however, the Defendant argued that trial counsel was
ineffective for failing to file a motion to transfer the charges to juvenile court as
authorized by under 42 Pa.C.S.A. §6322.
On August 8, 2013, noting that the Amended Petition raised new issues not
addressed by the Commonwealth in its Response to the Defendant's pro se Petition, we
issued a new Rule upon the Commonwealth, affording it twenty days to respond to the
new allegations contained in the Amended Petition. On September 11, 2013, the
Defendant filed a Petition for a Hearing, because the Commonwealth had not filed a
Response to our Rule within 20 days. On September 12, the Commonwealth filed a
Response. On September 26, we issued an Order scheduling a PCRA hearing on the
Defendant's Amended Petition for October 15, 2013.
On September 26, 2013, the Commonwealth petitioned for a continuance of the
October 15, 2013 hearing due to scheduling conflicts. We granted the continuance, and
a bifurcated PCRA hearing was held on October 18 and 24,2013. 1
The Defendant's case is now ripe for our review.
II. Discussion
The Defendant's Amended Petition raises two potential issues for our review:
A. Has the Defendant successfully pleaded and proven an exception to the
timeliness requirements to the Post Conviction Collateral Relief Act; and
1We issued an Order rescheduling the hearing on the Defendant's Amended Petition for October 18, 2013.
Following that rescheduling Order, we learned that Attorney Sodomsky was unavailable to testify on that date. The
parties thereafter agreed to a bifurcated proceeding in which the Defendant would testify on October 18, 2013,
and Attorney Sodomsky would testify on October 24, 2013.
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B. If so, was trial counsel ineffective for failing to file a Motion to Transfer from
Criminal Proceedings to Juvenile Proceedings?
The resolution of both of those issues is at least partially dependent upon the testimony
adduced at the PCRA hearing regarding the discussions between the Defendant and
Attorney Sodomsky as they met and and reviewed the charges filed against the
Defendant.
A. Timeliness
The Defendant concedes that his original Petition, filed on June 10, 2013, is
untimely on its face. The PCRA requires that a petition seeking post-conviction
collateral relief must be filed within one year of the date that judgment becomes final. 42
Pa.C.S. §9545(b)(1). A judgment becomes final at the conclusion of direct review of at
the expiration of time for seeking the review. 42 Pa.C.S. §9545(b)(3). As noted above,
the Defendant was sentenced by this Court on July 2, 2008. From that date, he had 30
days to appeal his judgment of sentence. Because he did not file an appeal, his
judgment of sentence became final on August 1, 2008, and he had until August 1, 2009,
to file for relief under the PCRA. Thus, the Defendant's pro se petition filed on June 10,
2013, was clearly well outside the permitted timeframe.
The PCRA does enumerate three specific exceptions to that one year timeframe.
Those exceptions are:
(i) the failure to raise the claim previously was the result of interference by
government officials with the presentation of the claim in violation of the
Constitution or laws of this Commonwealth or the Constitution or laws of the
United States;
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(ii) the facts upon which the claim is predicated were unknown to the petitioner
and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the
Supreme Court of the United States or the Supreme Court of Pennsylvania after
the time period provided in this section and has been held by that court to apply
retroactively.
42 Pa.C.S.A. §9545(b)(1).
The Defendant's counseled Amended Petition asserts that the facts of his case
fulfill the second of the enumerated exceptions. It argues that the law and facts
surrounding the Defendant's ability to petition the court to transfer his case to juvenile
court were previously unknown to him and that he could not have known their existence
by the exercise of due diligence. Our review of the record of the case and the testimony
of the PCRA hearing persuades us that the Defendant is not entitled to the benefit of
this exception.
We begin by addressing the Defendant's claim that, at the time of his plea, he
was unaware of the statute permitting a juvenile to petition to transfer criminal
proceedings to the juvenile system, and he could not have discovered this procedure
within the timeframe provided by the PCRA because of his age and educational
background. We note first that we do not believe, as a matter of law, that the Defendant
has pleaded adequate facts to support the (b)(1 )(ii) exception. The Defendant's position
at the PCRA hearing was that he became aware of the possibility of a motion for
transfer nearly five years after his sentencing by talking with other inmates and looking
around in the prison law library. He failed to testify, however, as to how his age and
educational background precluded him from conducting that same search and having
those same conversations years before. Due diligence requires that Appellant take
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such steps to protect his own interests. Commonwealth v. Carr, 2000 PA Super 54,768
A.2d1164, 1168 (Pa. Super. 2001) We do not believe that the facts as alleged
establish the exercise of due diligence on Defendant's part. Nor do we believe that the
discovery of preexisting case or statutory law qualifies under this exception. See
Commonwealth v. Perry, 716 A.2d 1259, 1262 n.5 (Pa. Super. 1998).
We are also unpersuaded as to the veracity of the Defendant's testimony
regarding the factual claims underlying his argument. At the hearing on October 18, the
Defendant testified that, although confined at the Lebanon County Correctional Facility,
he was high each time he met with Attorney Sodomsky. Nonetheless, he specifically
remembers that Attorney Sodomsky never discussed with him the possibility of a motion
to transfer.
In direct conflict to the Defendant's testimony, Attorney Sodomsky testified that
he met with the Defendant on approximately five occasions. During none of those
meetings did he believe the Defendant was high or intoxicated. (N.T. 10/24/13 at 9-10)
Attorney Sodomsky further testified that, on January 31, 2008, he met with the
Defendant prior to the preliminary hearing and specifically discussed with him the
possibility of a motion to transfer at that time. (N.T. 10/24/13 at 6) He indicated that he
advised the Defendant against filing a motion to transfer because, in counsel's
professional opinion, such a motion would be futile, because the Defendant had
previously been in the juvenile system in Berks County; he had a prior juvenile record
for weapons offenses; and, since the Defendant was almost 18 at the time of offenses,
it would be difficult to persuade the Court that he would be amenable to treatment within
the juvenile system given the short period of time before his 21 st birthday. (N.T.
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10/24/13 at 7) Significantly, Attorney Sodomsky also testified that the Defendant told
him he didn't want to have anything to do with the juvenile system; he just wanted to go
to prison and do his time. (N.T. 10/24/13 at 8) The Defendant was focused instead on
his attorney negotiating as little time as possible on the charges within the adult system.
(N.T.10/24/13at8)
This Court found the testimony of Attorney Sodomsky to be both credible and
persuasive. Thus, as both a question of fact and a question of law, we find that the
Defendant has not successfully pleaded nor proven an exception to the timeliness
requirements of the PCRA. Therefore, this Court is without jurisdiction to consider
Defendant's claims for relief. Commonwealth v. Robinson, 575 Pa. 500, 837 A. 2d 1157,
1161 (2003).
B. Ineffectiveness of counsel
Even if we were to find that the Defendant had successfully pleaded and proven
an exception to the timeliness requirements of the Act, we would still deny relief on the
underlying issue of the Defendant's Petition-- counsel's alleged ineffectiveness for
failing to file a motion to transfer the proceedings to the juvenile system.
Trial counsel will always be presumed effective, and the Defendant bears the
burden of proving otherwise. Commonwealth v. Lewis, 708 A.2d 497, 500 (1988). To
prevail on a claim of ineffective assistance of counsel, a defendant must show that: his
claim was of arguable merit; there was no reasonable basis for counsel's conduct; and
counsel's conduct prejudiced the client. Commonwealth v. Johnson, 875 A.2d 328, 331
(Pa. Super. 2005). If a defendant fails to meet any of the prongs of the test, he is not
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entitled to relief. Commonwealth v. Natividad, 595 Pa. 188, 938 A.2d 310 (2007). If a
defendant fails to demonstrate that the underlying claim is of arguable merit, the
ineffectiveness claim may be dismissed on that ground alone and it is not necessary to
consider the other two factors. Commonwealth v. DiNicola, 751 A.2d 197, 198 (Pa.
Super. 2000).
If a defendant's underlying claim is of arguable merit, then we must examine the
action chosen by trial counsel in order to ascertain if that action was designed to
effectuate the defendant's interest. DiNicola, 751 A.2d at 198. Worded differently,
counsel whose effectiveness is being challenged must have a reasonable basis for his
or her actions or failure to act. The fact that trial counsel's strategy may not ultimately
have led to an acquittal does not render the strategy legally deficient. Commonwealth v.
Spotz, 587 Pa. 1, 896 A.2d 1191 (2006). The Defendant must then establish that but
for counsel's deficient performance, the result of his trial would likely have been
different. DiNicola, 751 A.2d at 198.
The Defendant cannot meet his burden of proof on this issue for several reasons.
First, as noted previously, we find Attorney Sodomsky's testimony credible that the
Defendant told him not to file the motion to transfer, because the Defendant no longer
wanted anything to do with the juvenile system. Second, we are persuaded that, based
upon the stated wishes of the Defendant and the facts of both the Defendant's pending
criminal offenses and past juvenile history, counsel had a reasonable basis for believing
such a motion would be futile. Counsel's stated strategy of attempting instead to
persuade the Commonwealth to offer a negotiated plea agreement in which the
Commonwealth would waive the five year mandatory minimums on the armed robbery
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charges and permit the Defendant to argue for concurrent sentences on the two action
numbers was a reasonable one. Ultimately, although not necessary to prove counsel's
effectiveness, Attorney Sodomsky's strategy was successful. The Commonwealth
waived the mandatory minimums, and the Defendant received concurrent sentences on
the two action numbers. Finally, had Attorney Sodomsky filed a motion to transfer, we
do not believe that such a motion would have ultimately resulted in the Defendant's
charges being transferred to the juvenile system. The Defendant had a past juvenile
history involving firearms charges; his age left little time for treatment before age 21;
and the facts of the Defendant's pending charges were extremely serious. We do not
believe that such a motion would have been successful, and it is possible that, after
pursuing that motion without success, the Defendant's ability to pursue a favorable plea
agreement from the Commonwealth may have been compromised.
Therefore, even if we were to find that the Defendant had successfully
established an exception to the timeliness requirements of the PCRA, we would find
that he was not entitled to relief on the claim of ineffectiveness of counsel raised by his
Amended Petition. Accordingly, we will enter an Order denying relief and dismissing the
Petition before us.
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