Com. v. Quiles, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EDWIN DOLORES QUILES :
:
Appellant : No. 928 EDA 2019
Appeal from the PCRA Order Entered September 26, 2018
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000531-2013
BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: Filed: June 18, 2020
Appellant Edwin Dolores Quiles appeals pro se from the order
dismissing his first timely Post Conviction Relief Act1 (PCRA) petition. This
case returns to us after we remanded for a hearing under Commonwealth
v. Grazier, 713 A.2d 81 (Pa. 1998). Appellant, now proceeding pro se,
raises challenges to the imposition of consecutive sentences and the
effectiveness of his counsel on direct appeal, among numerous other claims.
For the reasons that follow, we affirm.
In resolving Appellant’s direct appeal, this Court set forth the factual
history of this case as follows:
On October 24, 2013, Appellant and his co-defendant pulled into
a gas station in Pike County, Pennsylvania. Appellant went into
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1 42 Pa.C.S. §§ 9541-9546.
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the gas station, while his co-defendant made a pre-arranged sale
of heroin to an undercover member of the Pike County
Detective’s Office. Following the controlled buy, Police Officer
Joseph Ostrom entered the gas station and placed Appellant
under arrest, while other officers took his co-defendant into
custody.
Officers transported Appellant to the Pike County Detective
Bureau Office, where Chief Detective Michael Jones and Officer
Ostrom interviewed Appellant. At the beginning of the interview,
which was conducted in English, Chief Detective Jones advised
Appellant of his rights pursuant to Miranda. Appellant
acknowledged his rights, signed a written waiver of those rights,
and spoke with Chief Detective Jones and Officer Ostrom.
Appellant also signed written consent forms for the search of his
automobile and his cellular phone.
Appellant was arrested and charged with two counts of delivery
of a controlled substance,[2] one count of criminal conspiracy to
deliver a controlled substance, and related possession charges.
Appellant filed a motion to suppress, seeking to suppress
statements he gave to investigators and the evidence the
investigators recovered in his phone and car on the grounds that
he did not sufficiently understand English and was under the
influence of heroin at the time he waived his rights and
consented to the search.
The trial court held a hearing on the motion, at which Chief
Detective Jones, Officer Ostrom, and Appellant testified. The trial
court denied the motion.
Appellant proceeded to a jury trial, and the jury convicted him of
two counts of delivery of a controlled substance, and one count
of criminal conspiracy to deliver a controlled substance. [The
trial court ordered a pre-sentence investigation (PSI)].
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2 The first delivery count was for 1.18 grams of heroin on October 17, 2013.
N.T. Trial, 1/12/15, at 7, 32. The second delivery count was for 3.31 grams
of heroin on October 24, 2013. Id. at 7, 32.
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On March 12, 2015, the trial court sentenced Appellant to an
aggregate term of nine to thirty years of imprisonment.
Commonwealth v. Quiles, 166 A.3d 387, 389 (Pa. Super. 2017) (Quiles
I) (footnote and some formatting altered).
Appellant timely appealed, and this Court, on June 23, 2017, affirmed
Appellant’s convictions but vacated his judgment of sentence and remanded
for resentencing and for determination of his Recidivism Risk Reduction
Incentive (RRRI) eligibility. Id. at 395. On February 8, 2018, the trial court
resentenced Appellant to an aggregate sentence of nine to thirty years’
imprisonment, which consisted of three consecutive terms of three to ten
years’ incarceration, and found Appellant was eligible for a RRRI sentence of
eighty-one months.3 Order, 2/9/18, at 1-2.4
On February 20, 2018, Appellant filed a pro se PCRA petition. The
PCRA court appointed PCRA counsel, who filed an amended PCRA petition on
May 7, 2018.
In relevant part, the amended PCRA petition stated as follows:
8. That [Appellant] believes the convictions received arose from
the same incident and therefore consecutive sentences are not
appropriate in this matter.
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3 The resentencing hearing transcript was not transmitted to this Court as
part of the certified record.
4 The order was docketed one day after the trial court imposed sentence.
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9. That [Appellant] attempted to advise trial counsel [(Robert
Reno, Esq.)] of his desire to appeal his sentence based on these
grounds, but was not contacted back by trial counsel.
10. That trial counsel was ineffective for failing to discuss with
[Appellant] issues for appeal.
* * *
14. That [Appellant] requests that if the court deems trial
counsel ineffective, [Appellant] requests . . . a re-sentencing in
this matter to a concurrent sentence within the standard
guidelines . . . or the ability to file an appeal on these issues[.]
Am. PCRA Pet., 5/7/18, at 2 (unpaginated).
On August 31, 2018, the PCRA court held an evidentiary hearing, at
which Appellant and Attorney Reno testified. On September 26, 2018, the
PCRA court denied Appellant’s PCRA petition.
Appellant filed a pro se notice of appeal, which was timestamped on
October 15, 2018.5 In his notice of appeal, Appellant stated five claims,
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5 Unfortunately, Appellant’s pro se notice of appeal was not docketed in the
PCRA court. As a result, Appellant filed a second pro se notice of appeal,
which the PCRA court docketed on March 11, 2019. On April 9, 2019, the
PCRA court issued an order instructing Appellant to comply with Pa.R.A.P.
1925(b), which the PCRA court served on Appellant. Appellant timely filed
his pro se Rule 1925(b) statement, which we discuss in further detail below.
On June 20, 2019, this Court issued a rule to show cause why Appellant’s
appeal should not be quashed due to an apparent untimely appeal from the
PCRA court’s September 26, 2018 order. Appellant filed a response
enclosing his pro se October 2018 notice of appeal, but did not enclose any
proof of mailing. As a result, this Court quashed Appellant’s appeal on
September 20, 2019.
(Footnote Continued Next Page)
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including claims that the imposition of consecutive sentences was
inappropriate and that trial and PCRA counsel were ineffective. Notice of
Appeal, 10/15/18, at 1-2 (unpaginated).
Appellant’s timely filed a pro se Rule 1925(b) statement raising
thirteen issues, including challenges to (1) the legality and discretionary
aspects of the consecutive sentences imposed by the trial court, and (2) trial
counsel effectiveness in the direct appeal.6 Additionally, Appellant raised
(Footnote Continued) _______________________
On October 7, 2019, Appellant filed a pro se application for reconsideration
of this Court’s September 20, 2019 order. Appellant’s application attached
proof of mailing of his October 2018 notice of appeal. Meanwhile, on August
20, 2019, the PCRA court transmitted a supplemental record to this Court
enclosing Appellant’s timestamped October 2018 notice of appeal, which the
PCRA court stated was inadvertently omitted from the docket. As a result,
on October 11, 2019, this Court vacated its quashal and reinstated
Appellant’s appeal as timely filed on October 15, 2018.
On January 10, 2020, this Court remanded for a Grazier hearing, which
occurred on February 5, 2020. On February 7, 2020, the trial court issued
an order stating that Appellant knowingly, intelligently, and voluntarily
waived his right to PCRA appellate counsel and wished to proceed pro se.
Order, 2/7/20.
6 In full, Appellant’s Rule 1925(b) statement stated:
1. Was [Appellant] as an innocent person subjected to an
unlawfully induced guilty plea as a result of counsel’s deficient
performance and guidance?
2. Did counsel offer [Appellant] adequate time [to] confer and
prepare for trial?
3. Was [Appellant] pressured into pleading guilty against his
wish to go to trial?
(Footnote Continued Next Page)
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(Footnote Continued) _______________________
4. Had counsel investigated properly, such issues as evidence
that was false but presented as truth by police officer[s], (license
plate that targeted [Appellant], that wasn’t [Appellant’s] plate
number), such falsehoods, intentionally injected into
[Appellant’s] case, while known by officer[s] to be false, against
the rules of criminal procedure, §4902, §4903, §4904 & §4952,
regarding perjury related to Police Officer[s] & District Attorney,
false information to authorities ([c]ourt), would the outcome
have been different, and would the adjudication of guilt or
innocence been impossible?
5. By a preponderance of the evidence, had counsel moved to
compel, it would have been clear that there was not evidence to
support the allegations against [Appellant], since the alleged
evidence that police claim exist, doesn’t offer any proof
[Appellant] being guilty of any crime, [h]ad counsel
investigated?
6. Was the weight of the evidence insufficient to convict or
prosecute?
7. Is [Appellant] currently serving an illegal sentence, whereas,
consecutive sentences are in violation of the rights secured to
[Appellant] under the United States Constitution, and
Pennsylvania Constitution, and not supported by statute, should
have merged as in Com. v. Zimmerman, 498 Pa. 112, 119,
445 A.2d 92, 96 (1981); Brown v. Ohio, 432 U.S. 161, 168 . . .
(1977); Com. v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981),
U.S. Const. Amend. 5, 14, [t]hat is, Fifth Amendment Double
Jeopardy protections prohibit “multiple punishment for the same
offense.[] Com. v. Mills, 477 Pa. 163, 169, 286 A.2d 638, 641
(1971); Com. v. Goldhammer, 512 Pa. 587, 517 A.2d 1280(1986); Com. v. Steven Keith Anderson, 538 Pa. 574, 650
A.2d 20, 1994 LEXIS 569.
8. Was [Appellant] misle[]d and manipulated by counsel to
ensure a guilty plea, and for failure to construct a strategy of a
defense, which would’ve been proper, since the evidence was
factually so lacking and insufficient to support a prosecution or
conviction.
(Footnote Continued Next Page)
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several claims referring to a guilty plea7 and trial counsel’s failure to
investigate and present evidence favorable to the defense.
The PCRA court prepared a Rule 1925(a) opinion.8
(Footnote Continued) _______________________
9. Was [Appellant] subjected to a malicious prosecution, and
counsel aided the prosecution, instead of acting as an advocate
for his client.
10. Did a miscarriage of justice occur, when [Appellant] entered
a guilty plea that was not entered intelligently, voluntarily, or
knowingly, while being under such duress/pressure of counsel’s
inappropriate influences?
11. Did [c]ounsel fail to investigate exculpatory evidence, and
fail to raise issues that would have benefited [Appellant] greatly?
12. Was [Appellant’s] counsel incompetent, and ineffective for
failing to raise issues, investigate an alibi defense?
13. Since [Appellant] speaks very little [E]nglish, did he
understand what he was being told, during the proceeding where
he entered his guilty plea, while being advised to do so by
ineffective counsel?
Appellant’s Rule 1925(b) Statement, 4/18/19.
7 Appellant raises numerous claims regarding guilty pleas he allegedly
entered on January 15, 2015, see Appellant’s Brief at 1, but he was tried by
a jury and convicted on January 13, 2015. See Docket; Quiles I, 166 A.3d
at 389.
8 We note that the PCRA court, as well as the Commonwealth’s brief,
address two of the issues that were stated in Appellant’s notice of appeal,
specifically, the imposition of consecutive sentences and whether trial
counsel was ineffective. PCRA Ct. Op., 5/6/19, at 3-7; see also Notice of
Appeal at 1-2 (unpaginated).
Pennsylvania Rule of Appellate 904, which states the requirements for the
contents of a notice of appeal, does not require an appellant to list issues.
(Footnote Continued Next Page)
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On appeal, we restate Appellant’s issues that he raised in his appellate
brief as follows:9
1. Imposition of consecutive sentences are illegal.
2. Unreasonable sentence.
3. Generalized claim that trial and PCRA counsel were
ineffective, including a failure to “address the issues at the
sentencing stage regarding problems there, (consecutive
sentence/extremely harsh sentence, and actual innocence,
etc[.]”)[.]
4. Unlawful guilty plea.
5. Police fabricated evidence.
6. Counsel was ineffective by failing to properly investigate and
prepare a defense for Appellant.
7. Challenge to the sufficiency of evidence for his convictions.
See Appellant’s Brief at 1-7.
In support of his first two issues, Appellant argues that he is serving
an illegal sentence. Appellant’s Brief at 2, 8-9. Appellant reasons his
(Footnote Continued) _______________________
See Pa.R.A.P. 904. In contrast, Rule 1925(b)(4)(vii) specifically states that
“[i]ssues not included in the [Rule 1925(b)] Statement . . . are waived.”
Pa.R.A.P. 1925(b)(4)(vii) (emphasis added). Therefore, although an
appellant must identify all of its issues in the Rule 1925(b) statement or risk
waiver, we discern no legal basis for the PCRA court or the Commonwealth
to limit their discussion to claims raised in Appellant’s notice of appeal. See
id.
9 We have reordered the issues presented in Appellant’s brief. We note
Appellant’s pro se appellate brief does not comply with the Rules of Appellate
Procedure and therefore, it is difficult to identify Appellant’s issues.
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sentence is illegal because his convictions10 should have merged, “but were
erroneously ordered by the [trial court] to run consecutive, which clearly
altered the outcome, causing the illegality of ‘Double Jeopardy’ . . . .” Id. at
2, 8-9. Appellant also raises a similar claim that his sentence was
“[e]xtremely [h]arsh” and was “clearly unreasonable in regards to the
erroneously imposed consecutive sentences . . . .” Id. at 3.
In response, the Commonwealth argues that Appellant “has already
challenged the imposition of consecutive sentences in a previous appeal” to
this Court. Commonwealth’s Suppl. Brief at 10.11 The Commonwealth
reasons that because Appellant previously litigated the issue, “the PCRA
court appropriately determined that the consecutive sentence issue had
already been considered” and rejected by the Quiles I Court. Id. at 11.
The PCRA court similarly claimed that Appellant had previously
“challenged the imposition of consecutive sentences” on direct appeal. PCRA
Ct. Op. at 4. The PCRA court reasoned that
[s]ince the Appellant’s initial appeal raised the issues of
consecutive periods of incarceration and imposition of a sentence
greater than the lawful maximum, including RRRRI eligibility,
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10As set forth above, a jury convicted Appellant of two counts of delivery of
a controlled substance and one count of conspiracy to commit delivery of a
controlled substance. Quiles I, 166 A.3d at 390.
11 The Commonwealth’s initial brief had argued that this Court should quash
the appeal due to an untimely notice of appeal. Because Appellant did, in
fact, timely appeal, the Commonwealth filed a supplemental appellate brief.
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and the [Quiles I] Court remanded for the sole purpose of re-
sentencing to include RRRI eligibility and not to alter the
consecutive nature of the previous sentence, the PCRA [c]ourt
determined that the consecutive sentence issue was considered
and rejected by the Superior Court.
Id. (emphasis added).12
The PCRA court nonetheless addressed the merits and concluded that
the imposition of three consecutive sentences of three to ten years’
incarceration “was entirely permissible.” Id. at 5. The PCRA court noted
that “imposition of consecutive sentences is solely within the discretion of
the trial court,” and that the trial court had the benefit of a PSI. Id. The
PCRA court’s opinion did not address Appellant’s claim of illegality due to
merger. See Appellant’s Rule 1925(b) Statement at ¶ 7; Appellant’s Brief at
2.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). We may
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12 The Commonwealth and PCRA court are incorrect that Appellant
challenged the imposition of consecutive sentences in his direct appeal.
Appellant argued only that he was RRRI eligible. See Quiles I, 166 A.3d at
392 (“Appellant . . . avers that he is RRRI eligible, and the trial court did not
have sufficient information at the sentencing hearing with which to
determine that his criminal record for assault in Connecticut rendered him
RRRI ineligible.”). The Quiles I Court never held that the trial court should
“not . . . alter the consecutive nature” of Appellant’s sentences. See
PCRA Ct. Op. at 4 (emphasis added).
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also affirm on any basis. Commonwealth v. Clouser, 998 A.2d 656, 661
n.3 (Pa. Super. 2010).
As to Appellant’s claim that the trial court imposed illegal consecutive
sentences, we note that the “PCRA ‘provides for an action by which persons
convicted of crimes they did not commit and persons serving illegal
sentences may obtain collateral relief.’” Commonwealth v. Jackson, 30
A.3d 516, 518 (Pa. Super. 2011) (quoting 42 Pa.C.S. § 9542)). A timely
challenge to the “legality of sentence is always subject to review within the
PCRA . . . .” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)
(citation omitted). “A claim that crimes should have merged for sentencing
purposes raises a challenge to the legality of the sentence.”
Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa. Super. 2012) (citation
omitted).
By way of guidance:
Under Pennsylvania law, “[m]erger of offenses is appropriate
where: (1) the crimes arise from a single criminal act; and (2)
all of the statutory elements of one of the offenses are included
in the statutory elements of the other offense.” In relevant part,
these factors are drawn directly from the statutory framework
established at 42 Pa.C.S. § 9765.
Commonwealth v. Hernandez, ___ A.3d ___, ___, 2020 WL 1149640, *4
(Pa. Super. 2020) (citation omitted).
In determining whether there is a single or multiple criminal acts, if
“the actor commits multiple criminal acts beyond that which is necessary to
establish the bare elements of the additional crime, then the actor will be
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guilty of multiple crimes which do not merge for sentencing purposes.”
Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa. Super. 2012)
(citation omitted). Criminal acts occurring on different dates may be
considered multiple criminal acts. Commonwealth v. Robinson, 931 A.2d
15, 24 (Pa. Super. 2007) (en banc) (holding no merger for three criminal
acts occurring in 1997, 1999, and 2000). Cf. Pettersen, 49 A.3d at 912
(holding no merger for three aggravated assault convictions against one
victim, when “time between the separate acts was relatively short” because
each assault involved a different weapon and resulted in distinct injuries).
“[T]he crime of delivering a controlled substance requires, quite
obviously, the delivery thereof to another person.” Commonwealth v.
Pitner, 928 A.2d 1104, 1111 (Pa. Super. 2007) (citation omitted).
“[C]onspiracy does not merge with the completed offense which was the
object of the conspiracy,” i.e., delivery of a controlled substance.
Commonwealth v. Miller, 364 A.2d 886, 886 (Pa. 1976).
Here, Appellant argues that his two delivery of a controlled substance
(delivery) and one conspiracy conviction should have merged for sentencing.
Appellant’s Brief at 2. We disagree for two reasons. First, Appellant’s
conspiracy conviction does not merge with either of his delivery convictions.
See Miller, 364 A.2d at 886. Second, his two delivery convictions occurred
on different dates: the first delivery occurred on October 17, 2013, for 1.18
grams of heroin, and the second delivery was on October 24, 2013, for 3.31
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grams of heroin. See N.T. Trial, 1/12/16, at 7, 32. Because the two
deliveries occurred on different dates and are separate criminal acts,
Appellant’s delivery convictions do not merge for purposes of sentencing.
See Petterson, 49 A.3d at 912; Robinson, 931 A.2d at 24. Because
Appellant’s convictions do not merge, he has not raised a challenge to the
legality of his sentence that would entitle him to PCRA relief. See Fahy, 737
A.2d at 223; Quintua, 56 A.3d at 400; Jackson, 30 A.3d at 518.
To the extent Appellant challenges the imposition of consecutive
sentences as “[e]xtremely [h]arsh” and “clearly unreasonable,” that
argument addresses the discretionary aspects of his sentence, see
Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005), and is not
cognizable under the PCRA. See generally 42 Pa.C.S. § 9543(a)(2)(vii)
(stating that the “imposition of a sentence greater than the lawful
maximum” is the only sentencing claim cognizable under PCRA). Therefore,
we agree with the PCRA court that Appellant is not entitled to relief, albeit
on grounds different than that articulated by the PCRA court. See Clouser,
998 A.2d at 661 n.3.
Appellant next claims that Attorney Reno, his trial counsel, was
ineffective. Appellant’s Brief at 3. Appellant, however, does not identify
those issues with any specificity other than “consecutive sentence/extremely
harsh sentence, and actual innocence.” Id.- 13 -
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In response, the Commonwealth argues that the PCRA hearing
testimony established Attorney Reno “discussed all issues of concern” with
Appellant and explained that counsel “did not raise certain issues . . .
because they were frivolous.” Commonwealth’s Suppl. Brief at 16. The
Commonwealth claims that “with respect to . . . the imposition of his
sentence, those issues were raised on the initial appeal” by Attorney Reno.
Id. at 17. The Commonwealth concludes that Appellant failed to meet the
standards set forth in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
Id.The PCRA court did not explain its reasoning in detail. It held that
Appellant “failed to fulfill all three prongs of the Pierce Test, and that he
failed to overcome the presumption that trial/appellate counsel was
effective.” PCRA Ct. Op. at 6.
Initially, we hold Appellant “has waived his issue by neglecting to
present appropriate argument and citation on appeal.” Commonwealth v.
Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (citation omitted). Although
we construe his pro se argument liberally, Commonwealth v. Postie, 110
A.3d 1034, 1041 n.8 (Pa. Super. 2015), Appellant has not addressed the
factors for finding ineffective assistance of counsel under Pierce. Appellant
has not argued that “(1) the underlying claim is of arguable merit; (2) no
reasonable basis existed for counsel’s action or inaction; and (3) counsel’s
error caused prejudice such that there is a reasonable probability that the
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result of the proceeding would have been different absent such error.”
Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (citing Pierce,
527 A.2d at 975).
In any event, even if we presumed that Appellant preserved a claim
that Attorney Reno was ineffective by not raising a challenge to the
imposition of consecutive sentences, Attorney Reno testified at the PCRA
hearing that he did, in fact, raise the issue of consecutive sentences in the
Rule 1925(b) statement. N.T. PCRA Hr’g at 15. Attorney Reno also testified
that raising the consecutive-sentence issue would be frivolous. Id. at 19.
Appellant has not explained why Attorney Reno’s decision lacked any
reasonable basis. See Dennis, 17 A.3d at 301 (stating the Pierce factors).
For these reasons, we affirm the PCRA court’s order, although on different
grounds. See Clouser, 998 A.2d at 661 n.3.
In his remaining claims, Appellant asserts that he entered an unlawful
guilty plea, the police fabricated the evidence against him, PCRA counsel was
ineffective, and trial counsel was ineffective for failing to investigate and
prepare a defense. However, we conclude that Appellant has not preserved
these claims for review.
Pennsylvania Rule of Appellate Procedure 302 states that “[i]ssues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.” Pa.R.A.P. 302. For example, in Commonwealth v. Roney, 79
A.3d 595 (Pa. 2013), our Supreme Court found that the defendant waived
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an issue because he failed to present it to the PCRA court. Roney, 79 A.3d
at 611. Furthermore, claims of PCRA counsel’s ineffectiveness cannot be
raised for the first time on appeal. Commonwealth v. Ford, 44 A.3d 1190,
1200-01 (Pa. 2012) (holding, “issues of PCRA counsel effectiveness must be
raised in a serial PCRA petition or in response to a notice of dismissal before
the PCRA court,” and “claims of PCRA counsel ineffectiveness cannot be
raised for the first time after a notice of appeal has been taken from the
underlying PCRA matter.”).
Turning to the instant case, Appellant’s amended PCRA petition only
raised claims that consecutive sentences were inappropriate and trial
counsel was ineffective for failing to raise various claims on direct appeal.
Appellant, therefore, cannot raise and preserve issues that were never
presented to the PCRA court. See Pa.R.A.P. 302; Roney, 79 A.3d at 611.
To the extent that Appellant challenges PCRA counsel’s ineffectiveness, he
cannot raise such a claim for the first time on appeal. See Ford, 44 A.3d at
1200-1201. For these reasons, we affirm the order below. See Ousley, 21
A.3d at 1242.
Order affirmed. Appellant’s pro se motion to “prohibit the use of the
Commonwealth’s brief” is denied.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/20
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