Com. v. Butler, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL ANTHONY BUTLER
Appellant No. 1113 WDA 2014
Appeal from the PCRA Order dated May 5, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0011981-2007
BEFORE: STABILE, DUBOW, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 19, 2016
Appellant Michael Anthony Butler pro se appeals from the May 5, 2014
order of the Court of Common Pleas of Allegheny County (“PCRA court”),
dismissing his petition for collateral relief under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The facts and procedural history underlying this case are undisputed,
and thoroughly recounted in the PCRA court’s Pa.R.A.P. 1925(a) opinion.
See PCRA court’s Rule 1925(a), 12/19/14, at 1 -19. Briefly, following a jury
trial, Appellant was convicted of possession with intent to deliver (“PWID”),
criminal conspiracy, and dealing in the proceeds of unlawful activities.1 The
trial court ultimately sentenced Appellant to consecutive terms nine to
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1
35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 930, 5111(a)(3), respectively.
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eighteen years’ incarceration for PWID, five to ten years’ incarceration for
criminal conspiracy, and two to four years’ incarceration for dealing in the
proceeds of unlawful activities. Appellant received an aggregate sentence of
16 to 32 years’ imprisonment. This Court affirmed Appellant’s judgment of
sentence. See Commonwealth v. Butler, No. 538 WDA 2012, 2013 WL
11262934 (Pa. Super. filed June 5, 2013) (unpublished memorandum).
Thereafter, on December 26, 2013, Appellant filed the instant PCRA petition,
raising, inter alia, a plethora of ineffective assistance of counsel claims. The
PCRA court appointed counsel, who, on April 7, 2014, filed a no-merit letter
and moved to withdraw. On April 15, 2014, the PCRA court issued a
Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a
hearing. On May 5, 2014, the PCRA court dismissed Appellant’s PCRA
petition and granted appointed counsel’s withdrawal motion. Appellant
appealed to this Court. Following Appellant’s filing of a pro se Pa.R.A.P.
1925(b) statement of errors complained of on appeal,2 the PCRA court
issued a Pa.R.A.P. 1925(a) opinion.
On appeal,3 Appellant raises the following issues for our review:
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2
Appellant has abandoned many issues raised in his Rule 1925(b) statement
because he failed to argue them in his brief before us.
3
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
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[1.] Did the PCRA court err in denying Appellant’s PCRA relief
without an evidentiary hearing on Appellant’s claim(s) of trial
counsel’s ineffectiveness?[4]
[2.] Should Appellant’s PCRA proceedings be remanded for
amendment based on PCRA counsel’s pretexted tendered
defense and perfunctory performance summarized in the
following dereliction of duty and breach of professional
responsibility to lawyer/client relations, rendered his
representations below ineffective assistance of counsel, forfeiting
and depriving appellant of a constitutional and meaningful
review under the Post Conviction Relief Act?
Appellant’s Brief at iv. Although his second issue is confusing and largely
incoherent, we construe it to subsume the following issues raised in the
argument section of his brief. Appellant argues that his trial counsel was
ineffective because the counsel failed to: (a) challenge the calculation of
Appellant’s prior record score, (b) challenge the application of 35 P.S. § 115
based on his 1993 felony drug conviction under 35 P.S. § 780-113(a)(30);5
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4
Appellant argues that the PCRA court erred in denying a hearing on his
PCRA petition and accepting the reasoning in counsel’s no-merit letter
without conducting an independent review of the record. Appellant’s Brief at
1.
5
Section 780-115, relating to second or subsequent offenses provides:
(a) Any person convicted of a second or subsequent offense
under clause (30) of subsection (a) of section 13 of this act or of
a similar offense under any statute of the United States or of any
state may be imprisoned for a term up to twice the term
otherwise authorized, fined an amount up to twice that
otherwise authorized, or both.
(b) For purposes of this section, an offense is considered a
second or subsequent offense, if, prior to the commission of the
second offense, the offender has at any time been convicted
under clause (30) of subsection (a) of section 13 of this act or of
a similar offense under any statute of the United States or of any
state relating to controlled substances.
35 P.S. § 780-115.
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(c) challenge the sentencing factors; (d) interview his co-conspirator Sonny
Tejeda; (e) move for severance of the dealing in proceedings of unlawful
activities charge from the other charges; and (f) investigate and retrieve a
“government transaction reporting form.” Appellant’s Brief at 2-10.
Appellant also argues that the trial counsel was ineffective in his trial
strategy to the extent the trial counsel revealed to the jury Appellant’s prior
drug convictions. Id. at 10.
Before we may address the merits of Appellant’s issues, we first must
determine whether he has preserved the issues for our review. Upon our
review of the record, we are constrained to conclude that Appellant did not
preserve them. The record indicates that Appellant either failed to raise the
issues in his PCRA petition or in his Rule 1925(b) statement. Specifically,
Appellant’s first argument that the PCRA court failed to hold a hearing on the
PCRA petition and instead relied on PCRA counsel’s no-merit letter is waived
because Appellant did not raise this issue in this Rule 1925(b) statement.
Appellant’s ineffective assistance of counsel argument with respect to his
prior record score is waived because Appellant did not raise it in his PCRA
petition. Similarly, Appellant’s ineffectiveness claim with respect to 35 P.S.
§ 115 is waived because he raises it for the first time on appeal. Appellant’s
ineffectiveness arguments regarding sentencing factors, Sonny Tejada,
government reporting forms, trial strategy are waived because he did not
raise them in his PCRA petition or in his Rule 1925(b) statement. Finally,
Appellant’s ineffectiveness claim pertaining to severance of the dealing in
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proceedings of unlawful activities charge from the other charges is waived
because he raised this argument for the first time in his Rule 1925(b)
statement. Accordingly, Appellant’s issues on appeal are waived. See
Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v.
Melendez–Rodriguez, 856 A.2d 1278, 1287 (Pa. Super. 2004) (en banc)
(holding issues raised for first time in 1925(b) statement waived).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2016
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