J-S88040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CARLOS QUILES, :
:
Appellant : No. 3347 EDA 2015
Appeal from the PCRA Order October 5, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003534-2009
BEFORE: OLSON, RANSOM, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 07, 2017
Carlos Quiles (Appellant) appeals from the order entered on October 5,
2015, which denied his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
As this Court explained, previously,
The facts giving rise to the charges herein involved Appellant
and numerous other individuals who, from June 2004 through
May 2008, engaged in the fraudulent transfer of real property.
Participants in the criminal enterprise forged documents that
purported to allow the holders of those documents to enter
vacant houses. The documents could cost the holders anywhere
from $100 to $1,000. The individuals then could select and
“purchase” a home at various amounts and would be issued a
notarized transfer deed, which could be recorded. Unfortunately
for the victims, the deeds were fake and the properties’ lawful
owners did not authorize any of the sales. [Appellant was tried
with two other co-defendants. One co-defendant, Richard Smith,
was tried in absentia after he absconded. Twelve other
coconspirators pled guilty.]
*Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Quiles, 48 A.3d 468 (Pa. Super. 2012) (unpublished
memorandum at 1-2) (footnote omitted).
The PCRA court summarized the relevant background underlying this
matter as follows.
On February 12, 2010, Appellant was found guilty after a
jury trial, presided over by Honorable Rose Marie DeFino-
Nastasi, of corrupt organizations, 18 Pa.C.S. § 911, [graded] as
a felony of the first degree; twenty-six (26) counts of theft by
deception, 18 Pa.C.S. § 3922, each [graded] as a felony of the
third degree; criminal conspiracy, 18 Pa.C.S. § 903, [graded] as
a felony of the third degree; fourteen (14) counts of forgery, 18
Pa.C.S. § 4101, each [graded] as a felony of the third degree;
and thirteen (13) counts of tampering with public records, 18
Pa.C.S. § 4911, each [graded] as a felony of the third degree.
On April 30, 2010, Appellant was sentenced to eight (8) to
twenty (20) years [of incarceration] for the corrupt organizations
conviction; ten (10) years [of] probation on the conspiracy
conviction, to run consecutively; and three (3) years [of]
probation on each of the theft by deception convictions, to run
concurrently to each other and to the probation sentence on the
conspiracy conviction.
On April 4, 2012, the Superior Court affirmed the
judgment of sentence.
On May 16, 2012, Appellant filed a [PCRA] petition.
On March 27, 2014, J. Matthew Wolfe, Esq. filed an
amended PCRA petition, claiming that trial counsel was
ineffective for failing to file a post sentence motion.
On June 23, 2015, the Commonwealth filed a motion to
dismiss.
On August 26, 2015, the [PCRA c]ourt issued a 907 notice.
On October 5, 2015, the PCRA court formally dismissed
Appellant’s petition.
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On November 3, 2015, Appellant filed the instant appeal to
the Superior Court.
PCRA Court Opinion, 1/29/2016, at 1-2 (unnecessary capitalization and
citations omitted).
In his brief to this Court, Appellant asks us to consider whether the
PCRA court erred in “failing to grant PCRA relief where trial counsel failed to
file post[-]sentence motions to preserve the issue of the sentence being
excessive?” Appellant’s Brief at 8.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the court’s rulings are supported by the evidence of
record and free of legal error. Commonwealth v. Anderson, 995 A.2d
1184, 1189 (Pa. Super. 2010). “It is well-established that counsel is
presumed effective, and the defendant bears the burden of proving
ineffectiveness.” Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
To overcome this presumption, Appellant must show each of the following:
“(1) the underlying substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis for his or
her actions or failure to act; and (3) the petitioner suffered prejudice as a
result of counsel’s deficient performance.” Id. Appellant’s claim will be
denied if he fails to meet any one of these three prongs. Id.
Here, Appellant argues that trial counsel failed to provide effective
assistance of counsel because he did not preserve Appellant’s challenge to
the discretionary aspects of his sentence, a claim that this Court found
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waived on direct appeal. Quiles, 48 A.3d 468 (unpublished memorandum at
3-4) (“As Appellant failed to submit a timely post-sentence motion and did
not preserve [his challenge to the discretionary aspects of his sentence]
during his sentencing, his claim is waived.”).
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code.... [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
Appellant argues that his claim raises a substantial question and
contends that, but for trial counsel’s failure to preserve the issue in a timely
post-sentence motion, this Court could have addressed the merits of his
discretionary aspects challenge on direct appeal and there is a reasonable
probability he would receive a lesser sentence.1 Appellant’s Brief at 11-15.
1
The record reflects that Appellant’s direct appeal was timely-filed, that
Appellant’s counsel included his discretionary aspects claim in his
supplemental concise statement, the trial court addressed the claim in its
1925(a) opinion, and that Appellant’s brief to this Court contained a concise
statement pursuant to Pa.R.A.P. 2119(f).
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Thus, Appellant argues that his underlying issue has arguable merit, there
was no reasonable basis for counsel’s omission, and he was prejudiced by
counsel’s inaction. Id.
Appellant does not assert that he asked trial counsel to file a post-
sentence motion on his behalf. However, at sentencing Appellant was made
aware of his appellate rights, particularly his right to file post-sentence
motions. N.T., 4/30/2010, at 108-109. Moreover, the record reflects that
Appellant’s direct appeal was timely-filed, that Appellant’s counsel included
his discretionary aspects claim in his supplemental concise statement and
the trial court addressed that claim in its 1925(a) opinion, and that
Appellant’s brief to this Court contained a concise statement pursuant to
Pa.R.A.P. 2119(f).
Appellant alleges that his underlying discretionary aspect claim, that
his statutory maximum sentence for the charge of corrupt organizations is
manifestly excessive and the court abused its discretion by failing to place
on the record its reason for exceeding the applicable guidelines, raises a
substantial question. Appellant’s Brief at 14-15. We agree and conclude that
Appellant’s claim has arguable merit. See Commonwealth v. Coulverson,
34 A.3d 135, 143 (Pa. Super. 2011) (holding that a claim that the
sentencing court imposed statutory maximum sentences in excess of the
applicable guidelines without offering specific reasons for the sentence,
which “comport with the considerations required in section 9721(b)[,]”
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raises a substantial question); see also Commonwealth v. Sheller, 961
A.2d 187, 190 (Pa. Super. 2008) (stating that an “[a]ppellant’s contention
that the sentencing court exceeded the recommended range in the
sentencing guidelines without an adequate basis raises a substantial
question for this Court to review.”).
In this case, the sentencing court offered the following explanation for
Appellant’s sentence.2
The [c]ourt has read all of the victim impact letters. The
[c]ourt has reviewed the pre-sentence [investigations], and the
memorandum from the Commonwealth on sentencing, and there
are a number of issues there.
***
[Appellant], you posed like you were a lawyer, a notary --
you were a businessman in the community. [Co-defendant Troy
Baylor] could say that he was a community leader. You are the
businessman in the community. So, what the people in the
community see is that you work in a law office; you have legal
documentation, paperwork that you take care of. You help
people with the problems in the community. You have this office
set up so that you are visible as a businessman in the
community, who could be trusted. Once again, an imposter.
You really took the trust out of people. They believed that
you were in a position of trust, and that you would help them,
and that’s why they came to you, and you took advantage of
that, the two of you, and [co-defendant Richard] Smith.
… Mr. Smith was a little bit more of a strong arm. [Co-
defendant Baylor is] the sweet talker, the fast talker, like [he]
did just now, when [he] got up, that message [he was] trying to
give, that I didn’t even understand, and [Appellant] is the quiet
2
Appellant was sentenced on April 30, 2010, along with two of his co-
defendants. The following are those parts of the notes of testimony directed
toward Appellant.
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businessman, the quiet businessman. It is a con. The whole
thing is a con, and it is an organized con.
[Appellant], you never paid taxes. I re-read your pre-
sentence report. All these jobs you have done in the
community; how dare you. You stole money from all of these
people. You lived the good life. You raised your children and
paid child support, but you never paid taxes. That is absolutely
amazing.
You were a drug dealer, with three convictions for drugs.
You received [three] years. You received a Federal drug
sentence of [three] years after a State sentence of [three] years.
So, you were a fairly big time drug dealer, and you moved up.
First, you destroyed the neighborhood with drugs. That is
a blight on the neighborhood. Then, once you got out, you
figured that it would be more profitable if you presented yourself
as a businessman. Then you could steal all the money from the
community that you had already put drugs into, over the years.
Then you could steal all of the money from the people in the
community, because when the houses are vacant or run down,
or families are having problems, you swoop in for the kill and
take their houses.
Your behavior, the two of you, and if Mr. Smith was here,
is beyond greed. It is more sinister. It is really more sinister
than greed, because this isn’t just about money. This is so much
worse, the fraud you perpetrated on all of these individuals.
***
As far as the sentencing in this case, the [c]ourt has
thought long and hard about this sentencing. The behavior of
these [d]efendants was outrageous, and these [d]efendants will
do jail time. However, as far as the statement by the District
Attorney that if they don’t get 50 years or 60 years [of
incarceration], then that would not be doing justice to the
victims in this case -- that is an inaccurate statement.
The [j]udge really does have to balance. They need to
serve time. They need to understand the destruction that they
caused. They need to be incapacitated because you two are
dangerous out on the street, financially, emotionally, physically,
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to the other people, because you make them sick, because you
make them so upset, but also, the [c]ourt takes into
consideration that if the [c]ourt [was] to sentence on each count
separately, the amount of time would be really too much,
compared to the crimes that we have before us, and the [c]ourt
needs to balance that.
***
[Appellant], although you have been called the
mastermind of the organization, I believe you were probably the
businessman-looking one, the businessman, and perhaps the
mastermind. The only difference [between you and co-
defendant Baylor] is that you weren’t involved in as many
properties as Mr. Baylor. That is about the only difference that I
see.
As a result, my sentence is as follows: On the charge of
Corrupt Organizations, 8 to 20 years of incarceration. …
N.T., 4/30/2010, at 86, 89-93, 104.
Based on the forgoing, the sentencing court considered appropriate
factors in fashioning Appellant’s sentence. Further, “[w]here the sentencing
court had the benefit of a presentence investigation report ..., we can
assume the sentencing court was aware of relevant information regarding
the defendant’s character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Griffin, 65 A.3d 932, 937
(Pa. Super. 2013) (internal quotation marks and citation omitted).
Accordingly, this Court agrees with the PCRA court’s assessment that the
sentence imposed was not manifestly excessive under the circumstances of
this case and no abuse of discretion attended its imposition. PCRA Court
Opinion, 1/29/2016, at 2-3.
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Thus, Appellant is unable to prove that he suffered prejudice and
counsel cannot be deemed ineffective for failing to file a post-sentence
motion. See Commonwealth v. Watson, 835 A.2d 786, 799 (Pa. Super.
2003) (concluding an appellant’s ineffectiveness claim failed where the
underlying discretionary aspects of sentencing claim lacked merit).
Order affirmed.
Judge Ransom joins.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2017
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