Com. v. Villanueva, J.

J-S33006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUAN M. VILLANUEVA,
Appellant No. 205 MDA 2017
Appeal from the PCRA Order Entered January 11, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005179-2013
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 05, 2017
Appellant, Juan M. Villanueva, appeals pro se from the PCRA court’s
January 11, 2017 order dismissing his petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
Briefly, in February of 2014, Appellant was found guilty, following a
non-jury trial, of attempted burglary and criminal mischief. On April 3,
2014, he was sentenced to a mandatory term of 10 to 20 years’
imprisonment for his attempted burglary offense, as it constituted his second
‘crime of violence’ under 42 Pa.C.S. § 9714. Appellant filed a timely notice
of appeal with this Court, challenging the weight and sufficiency of the
evidence, and also arguing that the trial court erred by denying his pretrial
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S33006-17
motion to proceed pro se. On April 10, 2015, this Court affirmed Appellant’s
judgment of sentence, and our Supreme Court denied his subsequent
petition for allowance of appeal. Commonwealth v. Villanueva, 121 A.3d
1127 (Pa. Super. 2015) (unpublished memorandum), appeal denied, 128
A.3d 1206 (Pa. 2015).
On July 19, 2016, Appellant filed a timely, pro se PCRA petition, and
counsel was appointed. However, rather than filing an amended petition on
Appellant’s behalf, PCRA counsel filed a petition to withdraw and ‘no merit’
letter in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). Therein, counsel identified the issues Appellant wanted to raise as
follows:
[Appellant], in his pro se PCRA application for relief, claims
ineffective assistance of counsel and avers that his trial attorney
… was ineffective for failing to file pre-trial motions upon request
by [Appellant] and for failing to object when the complaining
witness testified that his identification of [Appellant] was based
on [Appellant’s] garments and not a visual recognition of …
[Appellant’s] face. Furthermore, [Appellant] challenges the
sufficiency and weight of the evidence used to convict him and
avers that although these allegations of error are previously
litigated and waived, the alleged errors have resulted in the
conviction or affirmation of sentence of an innocent individual.
No Merit Letter, 10/19/16, at 4. Counsel concluded that these claims were
either previously litigated or meritless, and therefore, he asked for
permission to withdraw from representing Appellant.
-2-
J-S33006-17
On December 5, 2016, Appellant filed a pro se “Amended PCRA
Petition,” in which he raised several new claims. For instance, he challenged
the legality of his sentence, and he also argued that trial counsel was
ineffective for stipulating to Appellant’s prior criminal history, and for not
filing a pretrial motion to suppress a witness’ out-of-court identification of
Appellant.
On December 8, 2016, the PCRA court issued a Pa.R.Crim.P. notice of
its intent to dismiss Appellant’s petition. In that same order, the court
granted PCRA counsel’s petition to withdraw. Appellant did not file a
response to the court’s Rule 907 notice. Instead, on December 23, 2016,
Appellant filed a second PCRA petition, in which he reiterated several of the
claims that he had presented in his first PCRA petition, and also asserted a
new claim that counsel was ineffective for not conveying to him a plea offer
from the Commonwealth.
On January 11, 2017, the PCRA court issued an order dismissing
Appellant’s first PCRA petition. That same day, the PCRA court also issued
an order - which was not docketed until January 12, 2017 - that dismissed
Appellant’s second petition, concluding that Appellant had raised “the exact
same issues [as he presented] in his initial PCRA Petition.” PCRA Court
Order, 1/12/17.
-3-
J-S33006-17
On January 26, 2017, Appellant filed a timely, pro se notice of appeal
from the court’s January 11, 2017 order denying his first PCRA petition.1 He
also timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Herein, Appellant
states the following three issues for our review, which we reproduce
verbatim:
I. Did the Commonwealth meet its burden either by offering
evidence to disapprove an element of the states case or by
demonstrating an absence of evidence to support this case.
II. Did exhibit I confuse the evidence against the appellant.
III. Was the Constitution violated when the trial court gave
appellant a ten to twenty sentence.
Appellant’s Brief at 6.
We begin by noting that our standard of review regarding an order
denying post-conviction relief under the PCRA is whether the determination
of the court is supported by the evidence of record and is free of legal error.
Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court
____________________________________________
1
On March 7, 2017, the PCRA court filed a statement in accordance with
Pa.R.A.P. 1925(a), in which it declares that Appellant is appealing from the
denial of his second PCRA petition. We disagree. It is apparent from our
review of Appellant’s notice of appeal that he is appealing from the order
dismissing his first petition. Notably, he attached the court’s January 11,
2017 order dismissing his first petition to his notice of appeal. Additionally,
in the notice of appeal, he refers to the fact that the PCRA court allowed his
PCRA counsel to withdraw, which occurred during the litigation of his first
petition. Therefore, we consider this appeal as stemming from the order
denying Appellant’s first petition, not his second.
-4-
J-S33006-17
grants great deference to the findings of the PCRA court, and we will not
disturb those findings merely because the record could support a contrary
holding. Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super.
2001).
Having reviewed Appellant’s pro se brief, we conclude that he is not
entitled to post-conviction relief. First, his entire argument is just slightly
over one page, and it is not divided into any sections corresponding with the
above-stated issues. More problematic, Appellant does not sufficiently
develop any of his issues to enable this Court to meaningfully review them.
For instance, he makes bald assertions that suggest he is challenging the
effectiveness of his trial counsel’s representation, yet he provides no
discussion of these claims. See Appellant’s Brief at 9 (stating, without
elaboration, that “Appellant made a timely request through his counsel to
have a motion to dismiss, because the victim could not ID.[] him[;] “[t]rial
counsel failed to act on my wishes when I requested a jury trial[;]” and
“Appellant [was] denied [his] Constitutional rights to have effective
representation during trial”). Additionally, to the extent that Appellant
seemingly challenges the sufficiency and weight of the evidence, such claims
were raised on direct appeal; therefore, they were previously litigated and
do not entitle Appellant to post-conviction relief. See 42 Pa.C.S. §
9543(a)(3) (stating that to be eligible for relief, a PCRA petitioner must
plead and prove “[t]hat the allegation of error has not been previously
litigated or waived”); 42 Pa.C.S. § 9544(a)(2) (“For purposes of this
-5-
J-S33006-17
subchapter, an issue has been previously litigated if: … (2) the highest
appellate court in which the petitioner could have had review as a matter of
right has ruled on the merits of the issue”).
In sum, Appellant’s undeveloped argument does not convince us that
the PCRA court erred in denying his petition for post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2017
-6-