Com. v. Wlson, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY WILSON :
:
Appellant : No. 2749 EDA 2018
Appeal from the PCRA Order Entered August 24, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004769-2011
BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 09, 2019
Appellant, Troy Wilson, appeals pro se from an order entered on August
24, 2018, which dismissed his petition for collateral relief filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On May 1, 2013, Appellant’s trial commenced, in absentia. On May 7,
2013, Appellant appeared and pled guilty to robbery and aggravated assault.
PCRA Court Opinion, 12/20/18, at 2. Three days later, on May 10, 2013,
Appellant filed a motion to withdraw his guilty plea. Id. Ultimately, on July
23, 2013, the trial court denied Appellant’s motion and sentenced him “to an
aggregate term of 12½ to 25 years[’] state incarceration.” Id. Appellant then
filed a post-sentence motion requesting to withdraw his guilty plea, which the
trial court denied on September 17, 2013. Id. This Court affirmed Appellant’s
judgment of sentence on April 1, 2015. Commonwealth v. Wilson,
__A.2d__, 2749 EDA 2013 (Pa. Super. 2015) (unpublished memorandum), at
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1-7 (citation omitted). Our Supreme Court subsequently denied allocatur.
Commonwealth v. Wilson, 126 A.3d 1285 (Pa. 2015).
On November 19, 2015, Appellant filed the current PCRA petition.
Appellant’s PCRA Petition, 11/19/15, at 1-10. In his petition, Appellant
asserted that, (1) his guilty plea was not entered into knowingly or
intelligently, (2) trial counsel was ineffective, and (3) his sentence was illegal
pursuant to Alleyne v. United States, 570 U.S. 99 (2013). Id. Counsel was
subsequently appointed on June 17, 2016. On March 1, 2017, referring only
to Appellant’s Alleyne claim, court-appointed counsel filed a motion to
withdraw and a no-merit letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc). Counsel’s motion to withdraw, however, “did not
address [Appellant’s] other issues.” PCRA Court Opinion, 12/20/18, at 2.
On March 10, 2017, Appellant filed a motion to proceed pro se and
requested a Grazier hearing. Appellant’s Motion Requesting a Grazier
Hearing, 5/4/18, at 1-2; see also Commonwealth v. Grazier, 713 A.2d 81
(Pa. 1998). On April 18, 2017, the PCRA court provided Appellant with notice
that it intended to dismiss his PCRA petition in 20 days without holding a
hearing in view of counsel’s Turner/Finley letter. PCRA Court Order,
4/18/17, at 1; see also Pa.R.Crim.P. 907(1). On May 5, 2017, however,
court-appointed counsel filed an amended PCRA petition on Appellant’s behalf.
Appellant’s Amended PCRA Petition, 5/5/17, at 1-3.
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On June 28, 2017, Appellant filed a second motion to proceed pro se
and again requested a Grazier hearing. Appellant’s Motion Requesting a
Grazier Hearing, 6/28/17, at 1-3. The court entered an order granting
Appellant’s request on July 21, 2017. PCRA Court Order, 7/27/17, at 1. A
Grazier hearing was held on October 5, 2017, during which Appellant decided
to proceed with counsel. Thereafter, on July 24, 2018, the PCRA court
provided Appellant with notice that it intended to dismiss his PCRA petition for
lack of merit in 20 days without holding a hearing. PCRA Court Order,
7/24/18, at 1; see also Pa.R.Crim.P. 907(1). Appellant filed a pro se
response on August 1, 2018. PCRA Court Opinion, 12/20/18, at 3. The PCRA
court dismissed Appellant’s petition on August 24, 2018. PCRA Court Order,
8/24/18, at 1.
Appellant filed a pro se notice of appeal on September 7, 2018.
Appellant’s Pro Se Notice of Appeal, 9/7/18, at 1-3. On September 24, 2018,
however, court-appointed counsel also filed a notice of appeal. Appellant’s
Counseled Notice of Appeal, 9/24/18, at 1. On December 20, 2018, this Court
issued a rule to show cause why Appellant’s pro se notice of appeal should not
be dismissed as duplicative. Rule to Show Cause, 12/20/18, at 1. Appellant
failed to file a response. Therefore, on February 21, 2019, this Court
remanded the case so the PCRA court could conduct a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Order, 2/21/19, at 1.
On May 7, 2019, the PCRA court granted Appellant permission to proceed pro
se, and on June 26, 2019, Appellant’s counseled notice of appeal was
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dismissed as duplicative. An order filed on August 6, 2019 referred this matter
for panel review of the merits.
Appellant raises the following issues on appeal:1
I. Whether the PCRA court erred in denying Appellant relief
on his claim that his guilty plea was not entered knowingly
or voluntarily?
II. Whether counsel was ineffective for failing to object to the
Commonwealth’s failure to provide notice that it intended
to pursue a mandatory minimum sentence pursuant to 42
Pa. C.S.A. § 9714?
See generally Appellant’s Brief at 3.
“When reviewing the propriety of an order granting or denying PCRA
relief, this Court is limited to determining whether the evidence or record
supports the determination of the PCRA court and whether the ruling is free
of legal error.” Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super.
2012), citing Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007).
“Great deference is granted to the findings of the PCRA court, and these
findings will not be disturbed unless they have no support in the certified
record. Rachak, 62 A.3d at 391, citing Commonwealth v. Wilson, 824 A.2d
331, 333 (Pa. Super. 2003).
Appellant’s first issue asserts that his guilty plea was not “knowing or
voluntary” because he did not have notice, “prior to sentencing, that the
[C]ommonwealth would proceed under 42 Pa. C.S.A. § 9714, the mandatory
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1We have simplified and re-ordered Appellant’s issues for ease of discussion.
See Appellant’s Brief at 3.
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minimum penalty provision for being a second strike offender.” Appellant’s
Brief at 16. Upon review, however, we conclude that Appellant waived this
claim because it could have been raised on direct appeal, but was not.2 See
42 Pa.C.S.A. § 9544(b) (“an issue is waived if the petitioner could have raised
it but failed to do so before trial, at trial, during unitary review, on appeal or
in a prior state post-conviction proceeding”); Commonwealth v. Price, 876
A.2d 988, 992-993 (Pa. Super. 2005) (same), appeal denied, 897 A.2d 1184
(Pa. 2006), cert. denied, 549 U.S. 902 (2006).
Next, Appellant’s second issue raises a claim asserting counsel’s
ineffectiveness. Specifically, he asserts that counsel was ineffective for failing
to object to the Commonwealth’s failure to give him notice of its intent to
pursue a mandatory minimum sentence under 42 Pa. C.S.A. § 9714.
Appellant’s Brief at 7. This argument lacks merit.
“[T]he Sixth Amendment to the United States Constitution and Article
I, [Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to
effective counsel. This right is violated where counsel's performance so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” Commonwealth v. Simpson,
112 A.3d 1194, 1197 (Pa. 2015) (cleaned up). “A criminal defendant has the
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2 Although on direct appeal Appellant challenged the trial court’s denial of his
motion to withdraw his guilty plea, the only basis for this challenge was his
profession of innocence. Commonwealth v. Wilson, ___ A.2d ___, 2749
EDA 2013 at p. 6. As this court noted in its earlier memorandum, “Appellant
[did] not challenge that his plea was not knowingly, intelligently or voluntarily
entered.” Id.
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right to effective counsel during a plea process as well as during a trial.”
Commonwealth v. Robinson, 185 A.3d 1055, 1063 (Pa. Super. 2018),
appeal denied, 192 A.3d 1105 (Pa. 2018) (citation omitted). However,
“[a]llegations of ineffectiveness in connection with the entry of a guilty plea
will serve as the basis for relief only if the ineffectiveness caused the defendant
to enter an involuntary or unknowing plea.” Id. Moreover, “[c]ounsel is
presumed to have been effective.” Commonwealth v. Andrews, 158 A.3d
1260, 1263 (Pa. Super. 2017). To prevail on an ineffective assistance of
counsel claim, a petitioner must plead and prove 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. Johnson, 179 A.3d 1153, 1158 (Pa. Super.
2018) (citation omitted). “A petitioner's failure to satisfy any prong of this test
is fatal to the claim.” Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa.
2018) (citation omitted).
Section 9714 reads, in relevant part, as follows:
(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this
Commonwealth of a crime of violence shall, if at the time of
the commission of the current offense the person had
previously been convicted of a crime of violence, be
sentenced to a minimum sentence of at least ten years of
total confinement, notwithstanding any other provision of
this title or other statute to the contrary. Upon a second
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conviction for a crime of violence, the court shall give the
person oral and written notice of the penalties under this
section for a third conviction for a crime of violence. Failure
to provide such notice shall not render the offender ineligible
to be sentenced under paragraph (2).
42 Pa.C.S.A. § 9714(a)(1). Importantly, to proceed under Section
9714(a)(1), the Commonwealth must provide the defendant with notice. 42
Pa. C.S.A. § 9714(d). The statute, however, does not require the
Commonwealth to give notice in a specific manner or at a specific time.
Instead, it merely requires the Commonwealth to provide “reasonable notice
. . . after conviction and before sentencing.” Id. Previously, in
Commonwealth v. Norris, 819 A.2d 568 (Pa. Super. 2003), this Court
determined whether the Commonwealth did, in fact, provide adequate notice
pursuant to Section 9714. Ultimately, we concluded that the Commonwealth
provided reasonable notice by: (1) giving written notice in the bill of
information stating that, if convicted, it would seek a mandatory minimum
sentence under Section 9714, (2) “verbally indicating on the record at the
sentencing hearing its intent to pursue a mandatory sentence under [S]ection
9714, and (3) communicating “its intent to proceed under [S]ection 9714 to
defense counsel the day prior to the sentencing hearing.” Id. at 575.
Contrary to Appellant’s claim, the Commonwealth provided adequate
notice under Section 9714. First, on May 11, 2011, the bill of information was
filed and specifically stated that “the Commonwealth intends to proceed under
42 Pa.C.S.[A.] § 9714 (relating to sentences for second and subsequent
offenses).” Bill of Information, 5/11/11, at 1. Second, the Commonwealth,
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at sentencing, confirmed that it advised Appellant’s counsel that it intended
to pursue a mandatory minimum under Section 9714 before Appellant agreed
to enter his guilty plea. Specifically, the Commonwealth stated the following:
On Tuesday morning, [Appellant] walked into the courtroom, right
in this hallway on the right side of my table, announced his
presence and spoke with his attorney. At which there was
indication that it was to be a guilty plea. A possible guilty plea.
At which time, I advised [defense counsel], please, do remember,
this is a second strike case you [are] talking about. And I [will]
not take that off the table. It [is] 10 to 20 minimum that we [are]
talking. Please advise your client that it [is] still on. [Defense
counsel] went back into the room and spoke to [Appellant], who
came back and said I [am] pleading guilty.
N.T. Sentencing Hearing, 7/23/13, at 11. Lastly, at Appellant’s sentencing
hearing, the Commonwealth made an oral correction to his PSI report. Id. at
31-33. In doing so, the Commonwealth stated that prior to sentencing, the
Commonwealth and defense counsel researched – together – Appellant’s prior
criminal history and discovered, and thereafter, agreed, that he would only be
subject to the “second strike” provision of Section 9714(a)(1). Id.
Accordingly, Appellant’s claim that the Commonwealth failed to provide
adequate notice fails for lack of merit. For the forgoing reasons, we affirm the
order of the PCRA court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/19
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