Com. v. Gillard, G.

J-A05045-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEORGE GILLARD :
:
Appellant : No. 170 EDA 2022
Appeal from the PCRA Order Entered December 9, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0010234-2010
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 21, 2023
George Gillard (Appellant) appeals from the order dismissing his first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541–9546. We affirm.
On May 13, 2013, Appellant entered a negotiated guilty plea to one
count each of aggravated assault, conspiracy, and possession of an instrument
of crime (PIC).1 See Commonwealth v. Gillard, 612 EDA 2018, at *1 (Pa.
Super. Aug. 15, 2019) (unpublished memorandum). The trial court imposed
the negotiated sentence of 11½ ─ 23 months of incarceration, followed by 7
years of probation. Id.; see also N.T., 10/7/16, at 5; N.T., 1/5/17, at 13-
15.
____________________________________________
1 18 Pa.C.S.A. §§ 2702(a), 903, and 907(a).
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Approximately two years later, Appellant was on probation when police
arrested him in Delaware County and charged him with four counts of
possessing heroin with intent to deliver (PWID).2 Gillard, supra at *1-2. On
June 30, 2015, Appellant pled guilty to the PWID charges, and the trial court
sentenced him to 18 – 36 months of incarceration, followed by one year of
probation. Id.
The trial court in the instant case held a violation of probation (VOP)
hearing on October 7, 2016. The trial court found Appellant violated the terms
of probation. Following receipt of a pre-sentence investigation report (PSI),
the trial court re-sentenced Appellant, on January 5, 2017, to an aggregate 6
— 14 years of incarceration. Id.; see also N.T., 1/5/17, at 11. Appellant
filed a motion for reconsideration, which the trial court denied.
On April 25, 2017, Appellant pro se filed an untimely notice of appeal,
which this Court quashed. Id. On December 4, 2017, Appellant filed a
counseled PCRA petition seeking reinstatement of his right to appeal nunc pro
tunc. Id. The PCRA court granted the petition and Appellant appealed to this
Court. Appellant claimed his aggregate 6 — 14 year sentence was excessive,
and that he was prejudiced by the trial court’s “untimely revocation of
probation and sentencing.” Id. at *5. This Court found no merit to the claims,
and affirmed the judgment of sentence.
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2 35 P.S. § 780-1130(a)(30).
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Appellant pro se filed a PCRA petition on January 29, 2020. The PCRA
court appointed counsel, who filed an amended petition on August 25, 2020.
On December 12, 2020, PCRA counsel withdrew, and Appellant’s current
counsel entered his appearance. Counsel filed a supplemental PCRA petition
on April 21, 2021. On October 14, 2021, the PCRA court issued Pa.R.Crim.P.
907 notice of intent to dismiss the petition without a hearing. Appellant did
not file a response. The PCRA court dismissed the petition on December 9,
2021. This timely appeal followed.3
Appellant presents four issues for review:
1. [Whether the PCRA court erred in not f]inding … Appellant’s
counsel … ineffective for not presenting that the [VOP] hearing
was untimely; and, therefore, revocation unwarranted[?]
2. [Whether the PCRA court erred in not f]inding that counsel was
ineffective at the time of sentencing for [Appellant’s VOP?]
3. [Whether the PCRA court erred in not f]inding that [appellate]
counsel was ineffective for failing to comply with Pa.R.A.P.
2119(f), and failing to correct or request correction, re-
argument or reconsideration when this Honorable Court stated
Appellant had been incarcerated throughout the pendency of
the proceedings[?]
4. [Whether the PCRA court erred in n]ot holding an evidentiary
hearing before dismissing Appellant’s PCRA claims[?]
Appellant’s Brief at 5.4
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3 Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
4In his third issue, Appellant repeats his first and second issues as to appellate
rather than VOP counsel. See Appellant’s Brief at 16-23. We address
Appellant’s claims of counsels’ ineffectiveness together.
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We review the PCRA court’s denial of relief by “examining whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light most favorable
to the party who prevailed in the PCRA court proceeding.” Id.[T]he PCRA court has the discretion to dismiss a petition without
a hearing when the court is satisfied “that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by any further proceedings.” Pa.R.Crim.P.
909(B)(2). “[T]o obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.” Commonwealth v.
D’Amato, 856 A.2d 806, 820 (Pa. 2004).
Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).
Appellant claims that VOP and appellate counsel were ineffective. The
Pennsylvania Supreme Court explained:
It is well-settled that counsel is presumed to have been effective
and that the petitioner bears the burden of proving counsel’s
alleged ineffectiveness. Commonwealth v. Cooper, 941 A.2d
655, 664 (Pa. 2007). To overcome this presumption, a petitioner
must establish that: (1) the underlying substantive claim has
arguable merit; (2) counsel did not have a reasonable basis for
his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance, “that is,
a reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different.” Id. A
PCRA petitioner must address each of these prongs on appeal.
See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.
2007) (explaining that “appellants continue to bear the burden of
pleading and proving each of the Pierce elements on appeal to
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this Court”). A petitioner’s failure to satisfy any prong of this test
is fatal to the claim. Cooper, 941 A.2d at 664.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations
modified). “Counsel cannot be found ineffective for failing to pursue a
baseless or meritless claim.” Commonwealth v. Taylor, 933 A.2d 1035,
1042 (Pa. Super. 2007) (citation omitted). With respect to ineffective
assistance of appellate counsel, “the petitioner must show that there is a
reasonable probability that the outcome of the direct appeal proceeding would
have been different but for counsel’s deficient performance.”
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).
Appellant first asserts VOP counsel was ineffective for “failing to litigate”
the claim that his VOP hearing was untimely. Appellant’s Brief at 16-17. He
also asserts appellate counsel was ineffective for failing to “request correction,
re-argument or reconsideration by the Superior Court” of our determination
that Appellant was incarcerated during the delay and did not suffer “prejudice
due to the delay in proceedings.” Id. at 22-23.
The record confirms VOP counsel did not raise the timeliness issue at
the VOP hearing. N.T., 10/7/16, at 1-9. However, appellate counsel raised
the issue on appeal. We stated:
Appellant contends that Appellant suffered prejudice due to the
trial court’s untimely revocation of probation and sentencing.
(Appellant’s Brief at 11-12.) …
[Pennsylvania Rule of Criminal Procedure] 708 provides in
relevant part:
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(B) Whenever a defendant has been sentenced to probation
or intermediate punishment, or placed on parole, the judge
shall not revoke such probation, intermediate punishment,
or parole as allowed by law unless there has been:
(1) a hearing held as speedily as possible at which
the defendant is present and represented by counsel;
and
(2) a finding of record that the defendant violated a
condition of probation, intermediate punishment, or
parole.
Pa.R.Crim.P. 708(B)(1), (2).
The language “speedily as possible” has been interpreted to
require a hearing within a reasonable time.
Commonwealth v. Saunders, [ ] 575 A.2d 936, 938 ([Pa.
Super.] 1990). Rule 708 does not establish a presumptive
period in which the Commonwealth must revoke probation;
but instead, the question is whether the delay was
reasonable under the circumstances of the specific
case and whether the appellant was prejudiced by the
delay. Commonwealth v. McCain, [] 467 A.2d 382, 383
([Pa. Super.] 1983). The relevant period of delay is
calculated from the date of conviction or entry of guilty plea
to the date of the violation hearing. Id.In evaluating the reasonableness of a delay, the court
examines three factors: the length of the delay; the reasons
for the delay; and the prejudice resulting to the defendant
from the delay. Saunders, supra. The court must analyze
the circumstances surrounding the delay to determine if the
Commonwealth acted with diligence in scheduling the
revocation hearing. Commonwealth v. Bischof, [ ] 616
A.2d 6, 8 ([Pa. Super.] 1992). Prejudice in this context
compromises the loss of essential witnesses or evidence, the
absence of which would obfuscate the determination of
whether probation was violated, or unnecessary restraint of
personal liberty. Commonwealth v. Marchesano, [ ] 544
A.2d 1333, 1336 ([Pa.] 1988).
Commonwealth v. Clark, 847 A.2d 122, 123-124 (Pa. Super.
2004).
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Here, Appellant pled guilty to PWID in Delaware County on
June 30, 2015. The trial court did not hold Appellant’s VOP
hearing until October 7, 2016. The record, however, reflects that
Appellant was incarcerated for the entire period of the delay as a
result of the PWID conviction. (See Trial Court Opinion, 8/15/18
at 2.) Moreover, Appellant did not dispute that he violated his
probation. (Notes of Testimony, 10/7/16 at 6.) Therefore, we
find that Appellant was not prejudiced due to an inability to
present witnesses on his behalf, nor did he suffer any prejudice
due to a loss of personal liberty. See Commonwealth v.
Christmas, 995 A.2d 1259, 1264 (Pa. Super. 2010), appeal
denied, 53 A.3d 756 (Pa. 2012).
Commonwealth v. Gillard, supra at *2-3 (emphasis added).
Appellant argues this Court’s disposition was incorrect because
“Appellant had already served his minimum sentence and been paroled by the
State of Pennsylvania (for his Delaware County case) prior to the instant
violation of probation sentencing hearing.” Appellant’s Brief at 16
(emphasis added). He claims both VOP and appellate counsel were ineffective
for not arguing his timeliness claim on this basis. Id. at 16-17, 22-23.
As stated above, the “the relevant period of delay is calculated from the
date of conviction or entry of guilty plea to the date of the violation hearing.”
Clark, supra at 124 (emphasis added). Appellant was sentenced to 18 — 36
months of incarceration in Delaware County on June 30, 2015. The VOP
hearing was October 7, 2016. Regardless of whether Appellant was
incarcerated during that time, the PCRA court explained:
Only upon the resolution of the Delaware County case and
[Appellant’s] subsequent incarceration was this court able to
schedule the VOP hearing. The total delay was 15 months and 7
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days. [Appellant] has not offered any evidence that this delay
prejudiced him in his VOP sentencing.
***
Regarding appellate counsel’s failure to correct this [c]ourt
pertaining to [Appellant’s] incarceration and parole, [Appellant] is
misguided. This claim arises out of an alleged misunderstanding
on behalf of this [c]ourt and the Superior Court regarding
[Appellant’s] parole on his Delaware County case. This [c]ourt
stated that [Appellant] was continuously incarcerated following his
Delaware County case through the VOP hearing. Amended
Petition, at 5. [Appellant] claims that he was released on parole
from his Delaware County case at the time of the initial VOP
hearing. This is incorrect. The first VOP hearing was held on
October 7, 2016, when probation was revoked. [Appellant] was
not released on parole until November 19, 2016, according to his
Appellate Brief. At that time, he was taken into custody for the
revocation of his probation. The sentencing hearing was then held
on January 5, 2017, less than two months following [Appellant’s]
reincarceration. At the time the Superior Court held that
[Appellant’s] VOP hearing was timely they were aware of the
parole and reincarceration.
PCRA Court Opinion, 4/7/22, at 11, 12-13.
Accordingly, Appellant’s timeliness issue lacks merit. Neither VOP
counsel nor appellate counsel were ineffective for failing to litigate or seek
reconsideration of this non-meritorious claim. See Taylor, supra.Next, Appellant argues VOP counsel was ineffective at sentencing for
failing to present mitigation evidence and call Appellant’s family members to
speak on his behalf. Appellant’s Brief at 20. Appellant also asserts:
Appellant’s counsel failed to state that Appellant had already been
granted parole and released from custody for the Delaware County
Case due to the delay in proceedings. Appellant’s counsel did not
specify that Appellant had subsequently been taken back into
custody by Philadelphia Adult Probation & Parole while reporting
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to the department as required. See Gagnon II Summary dated
12/1/2016.
Id.With respect to appellate counsel, Appellant argues counsel was
ineffective for failing to comply with Pa.R.A.P. 2119(f) and causing this Court
to find Appellant waived his discretionary aspects of sentence claim. Id. at
22.
To succeed on an ineffectiveness claim involving preservation of a
discretionary aspects of sentencing issue, a PCRA petitioner must demonstrate
that the underlying sentencing issue has merit. See Commonwealth v.
Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (“[I]f the PCRA court can
determine from the record that the sentence was not excessive … then there
is no underlying merit to the ineffectiveness claim and the claim must fail.”);
see also Commonwealth v. Reaves, 923 A.2d 1119, 1131-32 (Pa. 2007)
(claim of ineffectiveness for failure to preserve discretionary sentencing issue
requires showing of reasonable probability that sentencing court would have
imposed lesser sentence). “Sentencing is a matter vested in the sound
discretion of the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion.” Commonwealth v. Barnes,
167 A.3d 110, 122 n.9 (Pa. Super. 2017) (en banc).
In addition, to prove counsel was ineffective for failing to call a witness,
a petitioner must demonstrate:
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(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
the existence of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant a fair
trial.
Commonwealth v. Brown, 196 A.3d 130, 167 (Pa. 2018).
The record belies Appellant’s claims of VOP counsel’s ineffectiveness for
failing to present mitigation evidence and call witnesses to speak on
Appellant’s behalf at sentencing. See generally, N.T., 1/5/17, at 4-18.
VOP counsel presented mitigating evidence. Counsel emphasized
Appellant’s supportive family. Id. at 5. Counsel further highlighted the good
relationship Appellant had with his probation officer; his minimal criminal
history; his lack of probation violations other than his Delaware County case;
his completion of programs while incarcerated; his acceptance of
responsibility; his youth; his employment history; and his responsibility for
parenting his young children and co-parenting two stepsons. Id. at 11-13.
As to calling witnesses, the record indicates VOP counsel spoke to
Appellant’s family prior to sentencing because counsel was aware “there [was]
one person who wanted to speak.” Id. at 4. Counsel noted Appellant had 14
family members present at a prior listing of the case, and 6 - 8 family
members present at sentencing. Id. at 12. Counsel stated that Appellant’s
“aunt, who is a Philadelphia police officer, did want to speak. Unfortunately,
she has not yet made it.” Id. Counsel presented Appellant to speak on his
behalf, after which the trial court asked counsel if she had anything further.
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Id. at 15. When counsel said she did not, the court asked, “None of the people
that are here today want to say anything on his behalf?” Id. at 16. Although
counsel then asked if “anyone else want[ed] to speak?”, there no response.
Id. Appellant has not demonstrated VOP counsel’s ineffectiveness.
The trial court stated:
I reviewed the presentence report. I reviewed the guilty plea
colloquy …. [Appellant] got an enormous break with his
negotiated plea. There were other charges, more serious charges,
equally serious charges that were dropped. Hitting someone over
the head with a baseball or an iron pipe could have been the basis
for a charge of attempted murder, not just robbery and
aggravated assault. [Appellant] got an enormous break, and
maybe no one explained to him how fortunate he was.
Apparently, he didn’t understand because he’s back here having
committed new crimes. Maybe not violent crimes, but still
committing new crimes. I’m going to impose a sentence within
the guidelines like he could have gotten initially but did not
because of the plea.
N.T., 1/5/17, at 16.
The record further shows the trial court considered the evidence and
relevant 42 Pa.C.S.A. § 9721(b) factors in sentencing Appellant in the
standard range. See id. at 16-17; see also Commonwealth v. Moury, 992
A.2d 162, 171 (Pa. Super. 2010) (“where a sentence is within the standard
range of the guidelines, Pennsylvania law views the sentence as appropriate
under the Sentencing Code,” and holding a sentence was not unreasonable
where the court had the benefit of a PSI and imposed a standard range
sentence).
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Also, Appellant was not prejudiced by the waiver of his discretionary
aspects of sentence claim on appeal, which resulted from appellate counsel’s
failure to include a Pa.R.A.P. 2119(f) statement in Appellant’s brief. As the
PCRA court explained:
If appellate counsel had filed the statement as required, the claim
itself still lacks merit. [Appellant] received 6 to 14 years for a
crime that this [c]ourt noted “could have been the basis for
attempted murder” and carried a maximum of 20 to 40 years.
(N.T. 1/5/17, at 16). This [c]ourt further explained the reasoning
on the record[,] citing the seriousness of the crime[s] and
[Appellant’s] commission of a new crime. Id. [Appellant] has not
supported any claim of an abuse of discretion by this [c]ourt and
therefore the claim lacks merit.
PCRA Court Opinion, 4/7/22, at 12; see also Jones, 942 A.2d at 907-08(rejecting claim of ineffectiveness for failure to preserve challenge to
discretionary aspects of sentence where there was no merit to the claim).
For the above reasons, Appellant’s claims of counsels’ ineffectiveness
lack merit. As such, the PCRA court did not err in dismissing Appellant’s PCRA
petition without a hearing. Hanible, 30 A.3d at 452.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2023
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