Com. v. Greshan, B.

J-S69037-19 & J-S69038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BAIHEEM GRESHAN :
:
Appellant : No. 328 EDA 2019
Appeal from the PCRA Order Entered January 14, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002458-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BAIHEEM GRESHAN :
:
Appellant : No. 331 EDA 2019
Appeal from the PCRA Order Entered January 14, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008824-2014
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED APRIL 08, 2020
Appellant, Baiheem Greshan, appeals from orders of the Court of
Common Pleas of Philadelphia County (trial court) in two criminal proceedings
that dismissed his petitions for relief pursuant to the Post Conviction Relief Act
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* Retired Senior Judge assigned to the Superior Court.
J-S69037-19 & J-S69038-19
(PCRA)1 without a hearing. Counsel for Appellant has filed applications to
withdraw and briefs concluding that these appeals present no issues of any
arguable merit. After careful review, we deny the applications to withdraw
and order appellate counsel to submit advocate’s briefs or new no-merit letters
within 30 days of the date of this memorandum.
The PCRA petitions here sought relief from revocation of probation
sentences imposed in two separate criminal cases, CP-51-CR-0002458-2012
(CR-2458-2012) and CP-51-CR-0008824-2014 (CR-8824-2014). In CR-
2458-2012, Appellant entered a negotiated guilty plea on June 26, 2012 to
one count of manufacture, delivery or possession with intent to deliver a
controlled substance (PWID)2 and was sentenced to 111/2 months to 23
months of incarceration followed by 3 years of probation. In CR-8824-2014,
Appellant entered a negotiated guilty plea on March 31, 2015 to aggravated
assault and possession of an instrument of crime,3 and was sentenced to 111/2
months to 23 months of incarceration followed by 4 years of probation for
aggravated assault and 4 years of probation for possession of an instrument
of crime consecutive to the imprisonment sentence and concurrent with the
period of probation for the aggravated assault.
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1 42 Pa.C.S. §§ 9541–9546.
2 35 P.S. § 780-113(a)(30).
3 18 Pa.C.S. § 2702(a) and 18 Pa.C.S. §907(a), respectively.
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Appellant had completed serving the 111/2-to-23 month incarceration
portion of his sentence and was serving the 3-year probation sentence in CR-
2458-2012 at the time he committed the aggravated assault and possession
of an instrument of crime in June 2014. See CR-2458-2012 Gagnon II4
Summary, 8/13/14. The trial court on March 31, 2015 revoked Appellant’s
probation in CR-2458-2012 and sentenced Appellant to 5 years’ probation.
CR-2458-2012 Probation Revocation Order, 3/31/15.
On November 2, 2015, the trial court found Appellant to be in violation
of his probation in CR-2458-2012 and revoked his probation and sentenced
him to 111/2 months to 23 months of incarceration followed by 5 years of
probation. CR-2458-2012 Probation Revocation Order, 11/2/15. The trial
court also entered an order in CR-8824-2014 revoking Appellant’s probation
and sentencing him to 111/2 months to 23 months of incarceration followed
by 5 years of probation for aggravated assault and 4 years of probation for
possession of an instrument of crime.5 CR-8824-2014 Probation Revocation
Order, 11/2/15. In both cases, Appellant was paroled from his incarceration
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4 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
5 Appellant was still on parole in CR-8824-2014 and had not yet begun serving
the probation portion of his sentence at this time. That fact, however, did not
affect the trial court’s power to revoke his probation and impose a new
sentence in lieu of the probation portions of his sentence. Commonwealth
v. Ware, 737 A.2d 251, 253-54 (Pa. Super. 1999) (court may revoke the
probation portion of a split sentence and impose a new sentence based on
conduct that occurs while defendant is still on parole from the incarceration
portion of the sentence).
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sentences and the maximum date of his incarceration sentences was
September 20, 2017. CR-2458-2012 Gagnon II Summary, 5/6/16; CR-
8824-2014 Gagnon II Summary, 5/6/16.
On October 12, 2017, Appellant entered a negotiated guilty plea in a
third case, CP-51-CR-0000389-2017 (CR-389-2017), to charges of
intimidating a witness, retaliating against a witness, and terroristic threats,
and was sentenced to 111/2 months to 23 months of incarceration followed by
4 years of probation for intimidating a witness and retaliating against a witness
and 4 years of probation for terroristic threats.6 N.T., 10/12/17, at 4-10.
Based on Appellant’s guilty plea in CR-389-2017, the trial court on October
12, 2017 entered orders revoking Appellant’s probation in CR-2458-2012 and
CR-8824-2014. In CR-2458-2012, the trial sentenced Appellant to 5 to 10
years of incarceration followed by 5 years of probation. CR-2458-2012
Probation Revocation Order, 10/12/17; N.T., 10/12/17, at 11. In CR-8824-
2014, the trial court imposed consecutive sentences of incarceration of 3 to 6
years for aggravated assault and 21/2 to 5 years for possession of an
instrument of crime. CR-8824-2014 Probation Revocation Order, 10/12/17;
N.T., 10/12/17, at 11. The trial court ordered that the sentences in CR-8824-
2014 run consecutive to the incarceration sentence in CR-2458-2012,
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6 At the time that he committed those offenses, Appellant was still on parole
from the incarceration portions of his November 2015 violation of probation
sentences. See footnote 5, supra.
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resulting in an aggregate sentence in CR-2458-2012 and CR-8824-2014 of
101/2 to 21 years of incarceration and 5 years of probation. CR-8824-2014
Probation Revocation Order, 10/12/17; N.T., 10/12/17, at 11. At the hearing,
the trial court based these sentences on what it believed to be the maximum
legally permissible sentences and articulated no reason for imposing
sentences of that length. N.T., 10/12/17, at 8-11.
On October 18, 2017, trial counsel for Appellant filed timely motions in
both cases for reconsideration of these revocation of probation sentences. The
trial court did not rule on the motions for reconsideration of sentence or grant
an extension of time for decision, and the motions for reconsideration of
sentence were denied by operation of law on March 27, 2018. CR-2458-2012
Docket Entries; CR-8824-2014 Docket Entries. Appellant did not file a direct
appeal in either case.
On April 2, 2018, Appellant filed counseled PCRA petitions in both CR-
2458-2012 and CR-8824-2014 alleging ineffective assistance of counsel. In
both petitions, Appellant alleged that trial counsel was ineffective for failing to
submit an order to vacate the sentence with the motion for reconsideration of
sentence and failing to request a hearing on the motion and alleged that this
caused the denial of the motions for reconsideration without consideration of
the merits. CR-2458-2012 PCRA Petition Procedural History ¶11, Argument
¶¶10-11; CR-8824-2014 PCRA Petition Procedural History ¶11, Argument
¶¶10-11.
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On December 10, 2018, the trial court held an argument on the PCRA
petitions at which Appellant’s PCRA counsel explained that the relief sought
was the restoration of Appellant’s right to seek reconsideration of the
sentences. N.T., 12/10/18, at 4-5. The trial court acknowledged that trial
counsel’s failure to file rules to show cause to obtain hearings could be found
to have caused the denial of the motions for reconsideration of sentence by
operation of law, and the Commonwealth argued that the PCRA petitions
should be denied solely on the ground that Appellant did not show prejudice.
Id. at 5-6. On December 10, 2018, following the argument, the trial court
issued notices in both cases pursuant to Pa.R.Crim.P. 907 of its intent to
dismiss Appellant’s PCRA petitions without a hearing on the ground that they
were without merit. Appellant did not file a response to the trial court’s Rule
907 order in either case.
On January 14, 2019, the PCRA entered orders dismissing the PCRA
petitions. Appellant, represented by counsel, filed timely appeals from both
orders. In August 2019, appellate counsel filed applications to withdraw in
both appeals and filed and served on Appellant Anders7 briefs in which he
concludes that there is no ground for reversal of the dismissal of Appellant’s
PCRA petitions because Appellant cannot show that trial counsel’s errors
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7 Anders v. California, 386 U.S. 738 (1967).
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caused him prejudice. Appellant filed a pro se response to appellate counsel’s
briefs. The Commonwealth filed briefs in support of the PCRA court’s orders.
Before this Court can consider the merits of these appeals, we must first
determine whether appellate counsel has satisfied all of the requirements that
court-appointed counsel must meet before leave to withdraw may be granted
in a PCRA appeal. Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa.
Super. 2014); Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012).
To withdraw from representing a PCRA petitioner in a collateral attack on his
criminal conviction, counsel must file a no-merit letter, send the petitioner
copies of the application to withdraw and no-merit letter, and advise petitioner
of his right to proceed pro se or with a privately retained attorney. Freeland,
106 A.3d at 774-75; Doty, 48 A.3d at 454. The no-merit letter must set
forth: 1) the nature and extent of counsel’s review of the case; 2) each issue
that the petitioner wishes to raise on appeal; and 3) counsel’s explanation of
why each of those issues is meritless. Commonwealth v. Pitts, 981 A.2d
875, 876 n.1 (Pa. 2009); Commonwealth v. Turner, 544 A.2d 927, 928-29
(Pa. 1988); Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super.
2011). If appellate counsel has satisfied the above requirements, this Court
must then conduct its own review of the record and render an independent
judgment as to whether the appeal is without merit. Commonwealth v.
Walters, 135 A.3d 589, 591 (Pa. Super. 2016); Doty, 48 A.3d at 454.
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Here, counsel provided Appellant copies of his Anders briefs and letters
advising Appellant of his right either to retain new counsel or proceed pro se.
Counsel has also served his applications to withdraw on Appellant.8 Although
appellate counsel filed Anders briefs with this Court, rather than no-merit
letters, an Anders brief can satisfy counsel’s obligations provided that the
brief contains all the information that must be included in a no-merit letter.
Widgins, 29 A.3d at 817 n.2, 819. We therefore must evaluate whether
counsel’s Anders briefs adequately set forth the nature and extent of
counsel’s review of the case, each issue that the Appellant wishes to raise on
appeal, and why each of those issues is meritless.
Appellate counsel’s Anders briefs recite his review of the record and
discuss the elements that Appellant was required prove to prevail on the only
issue raised in his PCRA petitions. We conclude, however, that these briefs fail
to adequately discuss whether Appellant can prove these elements and
therefore fail to satisfy the requirements for granting his applications to
withdraw.
As appellate counsel correctly states, to be entitled to relief under the
PCRA on a claim of ineffective assistance of counsel, the convicted defendant
must prove: (1) that the underlying legal claim is of arguable merit; (2) that
counsel’s action or inaction had no reasonable basis; and (3) that he suffered
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8 While appellate counsel did not serve his applications to withdraw on
Appellant when he filed them, he has subsequently done so.
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prejudice as a result of counsel’s action or inaction. Commonwealth v.
Mason, 130 A.3d 601, 618 (Pa. 2015); Freeland, 106 A.3d at 775;
Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc).
The defendant must satisfy all three elements of this test to obtain relief under
the PCRA. Mason, 130 A.3d at 618; Freeland, 106 A.3d at 775, 777, 780;
Stewart, 84 A.3d at 706. Because the trial court did not hold that Appellant
failed to satisfy the first two of these elements, the Anders briefs properly
limit their discussion to the issue of prejudice.9
Appellate counsel, however, fails to demonstrate that Appellant cannot
succeed in showing prejudice. To satisfy the prejudice element of an
ineffective assistance of counsel claim, the convicted defendant must show
that there is a reasonable probability that, but for counsel’s error, the result
of the proceeding would have been different. Mason, 130 A.3d at 618;
Commonwealth v. Reaves, 923 A.2d 1119, 1127 (Pa. 2007); Stewart, 84
A.3d at 707. Where, as here, trial counsel’s error is a failure to properly seek
reconsideration of a sentence, the prejudice element requires that the
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9 Appellant’s pro se response to counsel’s Anders briefs does not show any
deficiency in counsel’s briefs. Appellant’s only argument in that response is
that his PCRA petitions were meritorious because trial counsel admitted that
he failed to take the proper steps to have the motions for reconsideration of
sentence heard on the merits. That goes only to the issue of whether trial
counsel’s performance was deficient, not to whether there was prejudice.
Because there is no determination by the trial court or contention by appellate
counsel or the Commonwealth that Appellant failed to show that trial counsel’s
performance was deficient, trial counsel’s admission does not affect the
analysis of whether the appeals are meritless.
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defendant show a reasonable probability that the motion for reconsideration
of sentence would have resulted in a reduced sentence. Reaves, 923 A.2d at
1132; Commonwealth v. Presley, 193 A.3d 436, 444-45 (Pa. Super. 2018).
The requirement of reasonable probability does not mandate proof that
it is more likely than not that the outcome would in fact have changed.
Commonwealth v. Jones, 210 A.3d 1014, 1018-19 (Pa. 2019);
Commonwealth v. Johnson, 966 A.2d 523, 541 (Pa. 2009); Stewart, 84
A.3d at 707, 714-15 & n.5. Rather, a reasonable probability of a different
result sufficient to show prejudice is a probability sufficient to undermine
confidence in the outcome. Jones, 210 A.3d at 1019; Commonwealth v.
Postie, 200 A.3d 1015, 1023 (Pa. Super. 2018) (en banc); Stewart, 84 A.3d
at 707.
Here, appellate counsel bases his conclusion that Appellant cannot show
prejudice on the fact that the trial court stated in its opinion it would have
denied reconsideration of the sentences even if the motions were properly
filed because the motions did not set forth a specific error in the sentences.
Anders Briefs at 15; Trial Court Opinion at 6. The only case that appellate
counsel contends holds that these facts preclude a finding of prejudice,
however, is Commonwealth v. Bryant, 200 A.3d 605 (Pa. Super. 2018)
(unpublished memorandum). Anders Briefs at 15-16. Bryant, as an
unpublished decision of this Court filed prior to May 2, 2019, is not only non-
precedential, but may not be cited or relied upon for its persuasive value.
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Pa.R.A.P. 126(b); 210 Pa. Code § 65.37(B) (“An unpublished memorandum
decision filed prior to May 2, 2019, shall not be relied upon or cited by a Court
or a party in any other action or proceeding, except that such a memorandum
decision may be relied upon or cited (1) when it is relevant under the doctrine
of law of the case, res judicata, or collateral estoppel, and (2) when the
memorandum is relevant to a criminal action or proceeding because it recites
issues raised and reasons for a decision affecting the same defendant in a
prior action or proceeding”); Wenk v. State Farm Fire and Casualty Co.,
__ A.3d __, __ n.11, 2020 Pa. Super. 26, at *20 n.11 (filed February 7, 2020).
Counsel cannot base a conclusion that his client’s claim is without merit on a
non-precedential decision that cannot even be considered for its persuasive
value.10
Moreover, counsel’s Anders briefs do not evaluate whether the
sentences were within legally permissible limits. Even if the motions for
reconsideration of sentence lacked specificity, that would not have prevented
trial counsel from raising a claim of illegality of sentence at a hearing on the
motions or prevent Appellant from arguing that issue as a ground for prejudice
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10 While appellate counsel also cites to the Supreme Court’s Reaves decision
in his briefs, he neither asserts that Reaves forecloses proof of prejudice here
nor discusses whether Reaves is distinguishable from the facts surrounding
Appellant’s sentences, which were maximum sentences imposed without any
explanation of reasons for their length at the time they were imposed or in
the trial court’s opinion.
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in this appeal. A claim that a sentence is illegal is not subject to waiver and
may be raised for the first time on appeal and by this Court, provided that the
Court has jurisdiction to consider an appeal from that sentence.
Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 889 (Pa. Super. 2019);
Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa. Super. 2011). “The
legality of a criminal sentence is non-waivable, and this Court may ‘raise and
review an illegal sentence sua sponte.’” Pi Delta Psi, Inc., 211 A.3d at 889
(quoting Commonwealth v. Muhammed, 992 A.2d 897 (Pa. Super. 2010)).
In CR-2458-2012, the record on its face presents a serious question as
to whether the trial court’s 2017 revocation of probation sentence exceeded
the maximum sentence for the single PWID conviction at issue. The combined
incarceration and probation portions of a revocation of probation sentence
cannot exceed the statutory maximum for the crime for which the original
probation sentence was imposed. Commonwealth v. Crump, 995 A.2d
1280, 1283-84 (Pa. Super. 2010). In addition, the new sentence is illegal if
it and the prior incarceration sentences that the defendant has served for the
offense together exceed the statutory maximum. Commonwealth v.
Williams, 662 A.2d 658, 659 (Pa. Super. 1995). The trial court imposed a
sentence of 5 to 10 years of incarceration followed by 5 years of probation in
CR-2458-2012, based on an assumption that Appellant was subject to a
maximum sentence of 20 years. N.T., 10/12/17, at 8, 11. In contrast,
Appellant’s written guilty plea colloquy in CR-2458-2012 states that the
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maximum sentence for the PWID charge to which he was pleading guilty was
10 years. CR-2458-2012 Written Guilty Plea Colloquy at 1. Absent an analysis
by appellate counsel of what the applicable statutory maximum is and a
demonstration that it is greater than 15 years plus the two 23-month
incarceration sentences already imposed for this offense, it cannot be
concluded that Appellant is unable to show prejudice from trial counsel’s
failure to properly seek reconsideration of his sentence in CR-2458-2012.
For the above reasons, we deny appellate counsel’s applications to
withdraw and order him to file, within 30 days of the date of this
memorandum, advocate’s briefs or no-merit letters that adequately explain
why Appellant’s ineffective assistance of counsel claim is without merit. The
Commonwealth shall have 30 days from those filings to respond.11
Applications to withdraw denied. Anders briefs stricken. Appellant’s
counsel ordered to file advocate’s briefs or new no-merit letters within 30 days
of the date of this memorandum. The Commonwealth may file briefs within
30 days of Appellant’s counsel’s briefs or no-merit letters. Panel jurisdiction
retained.
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11 If the Commonwealth chooses to not file briefs in response, the Court
requests that the Commonwealth promptly send a letter to the Prothonotary
advising the Court that no briefs will be filed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/20
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