J-S59023-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PERRY TILLMAN, :
:
Appellant : No. 269 WDA 2015
Appeal from the PCRA Order February 2, 2015,
Court of Common Pleas, Cambria County,
Criminal Division at No(s): CP-11-CR-0000462-2014,
CP-11-CR-0000464-2014 and CP-11-CR-0000466-2014
BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 24, 2015
Appellant, Perry Tillman (“Tillman”), appeals from the order entered on
February 2, 2015 by the Court of Common Pleas of Cambria County,
Criminal Division, denying his petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. For the reasons that
follow, we affirm.
The PCRA court summarized the facts and procedural history of this
case as follows:
… On July 31, 2014, Tillman, represented by
attorney Michael Walther (Walther), entered the
following guilty pleas: at 0462-2014 to one count of
[p]ossession with [i]ntent to [d]eliver a [c]ontrolled
[s]ubstance ([h]eroin) – second or subsequent
offense; at 0464-2014 to one count of [s]imple
[p]ossession – second or subsequent offense; and at
0466-2014 to one count of [p]ossession with [i]ntent
to [d]eliver a [c]ontrolled [s]ubstance ([c]ocaine) –
*Former Justice specially assigned to the Superior Court.
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second or subsequent offense.1 As part of his plea
agreement[,] the Commonwealth would nol pros the
remaining charges thirty-one (31) days after
sentencing. The only agreement as to [the]
sentence was that the Commonwealth would
recommend a minimum within the standard range of
twenty-one (21) to twenty-seven (27) months and
there was no agreement as to any other matter.
Tillman was sentenced on August 25, 2014 as
follows:
1) At docket 0462-2014 Count 1 pay the
costs of prosecution and to serve a period of
incarceration of twenty-one (21) to two
hundred and forty (240) months.
2) At docket 0464-2014 Count 2 pay the
costs of prosecution and to serve a period of
incarceration of twelve (12) to twenty-four
(24) months concurrent with the sentence at
0462-2014.
3) At docket 0466-2014 Count 1 pay the
costs of prosecution and to serve a period of
incarceration of twelve (12) to twenty-four
(24) months concurrent with the sentence at
docket 0462-2014.
On August 28, 2014, Tillman filed a [m]otion to
[w]ithdraw [g]uilty [p]lea asserting, inter alia, that
the sentence on case 0462-2014 was illegal as it
exceeded the statutory maximum. A hearing on the
[m]otion was held October 2, 2014[,] at which time
the [c]ourt acknowledged the error as to case 0462
and corrected the sentence to be twenty-one (21) to
one hundred and eighty (180) months. The [m]otion
was denied as to all other matters. No appeal was
taken from this order or from the sentencing.
1
35 P.S. §§ 780-115, 780-113(a)(30) and (16).
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On December 15, 2014, Tillman filed a pro se
[PCRA petition], attorney Timothy Burns (Burns) was
appointed as counsel and a hearing on the petition
was held on February 2, 2015, and the petition was
denied by an [o]rder that same day.
Tillman filed a timely [n]otice of [a]ppeal and
[c]oncise [s]tatement of [m]atters [c]omplained of
on [a]ppeal [] pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b).
PCRA Court Opinion, 4/9/15, at 1-2 (record citations omitted).
On appeal, Tillman raises the following issues for our review:
1. The [PCRA court] erred in not correcting
[Tillman]’s sentence to reflect the sentence he
believed he was entering into per his plea as
well as under the advice of counsel ([Tillman]
believed the sentence to be [twenty-one] to
[twenty-seven] months [of incarceration]).
2. The [PCRA court] erred in finding that it did
comply with Pa.R.Crim.P. 704 (by properly
explaining the reasons for [Tillman]’s sentence
on the record). [Tillman] submits that the
[c]ourt did not fully explain its reasons on the
record for his sentence per Pa.R.Crim.P. 704.
Tillman’s Brief at 3.
As stated above, the first issue Tillman raises in the statement of
questions involved section of his appellate brief asserts that the PCRA court
erred by not correcting his sentence to reflect the sentence he believed he
agreed to in his plea agreement, a sentence of twenty-one to twenty-seven
months of incarceration. Id. Our review of Tillman’s brief reveals that he
did not include any argument on appeal in support of this claim. For an
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issue to be reviewable on appeal, the appellant must include a properly
developed argument in support of the issue in the argument section of his or
her appellate brief. See Commonwealth v. Johnson, 985 A.2d 915, 924
(Pa. 2009) (“[W]here an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”); Bolick
v. Commonwealth, 69 A.3d 1267, 1269 (Pa. Super. 2013) (finding an issue
raised on appeal waived because the appellant failed to present any
argument), appeal denied, 84 A.3d 1061 (Pa. 2014). As Tillman has
provided no argument whatsoever on this issue, we conclude that he waived
review of the claim.2
Rather, in the argument section of his appellate brief of his issue,
Tillman sets forth an ineffective assistance of counsel claim. See Tillman’s
Brief at 7-13. Specifically, Tillman argues that the PCRA court erred in
dismissing his PCRA petition because his plea counsel did not properly advise
2
For purposes of completeness, we observe that even if Tillman had not
waived this issue on appeal, it would not entitle him to relief because it is
not a cognizable claim under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2).
This Court has held that a PCRA court lacks the jurisdiction to modify a
defendant’s sentence where “the sentence as it stood was not illegal.”
Commonwealth v. Payne, 797 A.2d 1000, 1005 (Pa. Super. 2002). Here,
Tillman’s sentence was not greater than the lawful maximum. As stated
hereinabove, the trial court modified Tillman’s sentence from 21 months to
240 months of incarceration to 21 months to 180 months of incarceration
because 240 months was greater the lawful maximum, and therefore illegal.
Accordingly, Tillman’s request to modify his sentence to be in accordance
with his plea agreement is not a cognizable claim under the PCRA as the
PCRA court did not have jurisdiction to modify his sentence.
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him of his potential sentence prior to pleading guilty and that consequently,
his guilty plea was not knowing, voluntary, and intelligent. Id. Tillman
asserts that counsel promised him that his sentence would only be 21 to 27
months of incarceration and not the 21 to 180 months of incarceration he
ultimately received. See id. On this basis, Tillman asks us to permit him to
withdraw his guilty plea. Id. at 13.
We conclude that Tillman has not preserved this issue for appellate
review. Generally, there are several layers of preservation required for an
issue in a criminal case to be subject to appellate review. The issue must be
raised before the trial court. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
If the trial court issues an order requiring the filing of a 1925(b) statement,
any issue to be raised on appeal must be specifically included therein. See
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.”). The issue must also be included in the statement of questions
involved section of the appellate brief. See Pa.R.A.P. 2116(a) (“No question
will be considered unless it is stated in the statement of questions involved
or is fairly suggested thereby.”). Finally, the appellant must include
argument regarding the issue, complete with citation to relevant authority,
in the argument section of his or her appellate brief. See Johnson, 985
A.2d at 924. Here, Tillman did not raise this issue in his PCRA petition, his
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Rule 1925(b) statement, or the statement of questions involved section of
his appellate brief. Accordingly, Tillman has not preserved the issue for our
review.
Even if Tillman had properly preserved this issue for review, it still
would not entitle him to any relief.3 The certified record reflects that at his
guilty plea hearing, Tillman expressed confusion over the sentence that he
was agreeing to in his plea agreement, which caused the trial court to
explain to Tillman the sentencing laws of Pennsylvania and the sentence to
which he was agreeing. N.T., 7/31/14, at 3-5. The trial court specifically
told Tillman that he was only agreeing to the range of twenty-one to twenty-
seven months as the minimum end of his sentence and that the trial court
was free to the determine the maximum end of his sentence, so long as it
was at least double the minimum end. See id. Following that explanation,
Tillman stated that he was no longer confused and wished to proceed in
3
In deciding ineffective assistance of counsel claims, we begin with the
presumption that counsel rendered effective assistance. Commonwealth
v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that
presumption, the petitioner must establish: “(1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s action or failure
to act; and (3) the petitioner suffered prejudice as a result of counsel’s
error, with prejudice measured by whether there is a reasonable probability
that the result of the proceeding would have been different.” Id. (citation
omitted). To demonstrate prejudice in an ineffective assistance of counsel
claim, “the petitioner must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa.
2012). If the petitioner fails to prove any of these prongs, the claim is
subject to dismissal. Bomar, 104 A.3d at 1188.
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pleading guilty. See id. at 5, 7. The certified record also reflects that
Tillman’s plea counsel provided the same explanation to Tillman prior to
Tillman pleading guilty. See N.T., 2/2/15, at 19, 24. Accordingly, Tillman’s
argument is meritless.
For his second issue on appeal, Tillman challenges the discretionary
aspects of his sentence. See Tillman’s Brief at 13-15. Tillman complains
that the trial court did not state sufficient reasons on the record for giving
him such an unduly harsh sentence. See id. We conclude that this issue
does not entitle Tillman to relief, as it is not a cognizable claim under the
PCRA.
Section 9543(a)(2) provides as follows:
(a) General rule.--To be eligible for relief under
this subchapter, the petitioner must plead and prove
by a preponderance of the evidence all of the
following:
* * *
(2) That the conviction or sentence resulted
from one or more of the following:
(i) A violation of the Constitution of this
Commonwealth or the Constitution or
laws of the United States which, in the
circumstances of the particular case, so
undermined the truth-determining
process that no reliable adjudication of
guilt or innocence could have taken
place.
(ii) Ineffective assistance of counsel
which, in the circumstances of the
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particular case, so undermined the truth-
determining process that no reliable
adjudication of guilt or innocence could
have taken place.
(iii) A plea of guilty unlawfully induced
where the circumstances make it likely
that the inducement caused the
petitioner to plead guilty and the
petitioner is innocent.
(iv) The improper obstruction by
government officials of the petitioner’s
right of appeal where a meritorious
appealable issue existed and was
properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial
of exculpatory evidence that has
subsequently become available and
would have changed the outcome of the
trial if it had been introduced.
(vii) The imposition of a sentence greater
than the lawful maximum.
(viii) A proceeding in a tribunal without
jurisdiction.
42 Pa.C.S.A. § 9543(a)(2). Additionally, this Court has held that “[r]equests
for relief with respect to the discretionary aspects of sentence are not
cognizable in PCRA proceedings.” Commonwealth v. Wrecks, 934 A.2d
1287, 1289 (Pa. Super. 2007). Accordingly, Tillman’s challenge to the
discretionary aspects of his sentence fails.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2015
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