J-S07028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLARENCE ROHADES :
:
Appellant : No. 1708 EDA 2017
Appeal from the PCRA Order May 11, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0406261-2004
CP-51-CR-0406311-2004
CP-51-CR-0406331-2004
BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED AUGUST 08, 2018
Clarence Rohades appeals from the order dismissing his petition
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546, without a hearing. We vacate and remand for further proceedings.
We assume the parties’ familiarity with the facts and procedural history
underlying this appeal. We provide the following brief recitation of the
pertinent factual and procedural background. On March 2, 2004, Appellant
was arrested and charged with offenses stemming from the robberies of
several different businesses in Philadelphia. Appellant’s cases did not proceed
to a jury trial until July 2008. Following trial, the jury convicted Appellant of
three counts of robbery, three counts of possessing instruments of crime and
one count of simple assault. Additionally, the trial court convicted Appellant of
three violations of the Uniform Firearms Act. The trial court sentenced
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Appellant to an aggregate term of 77½ to 155 years’ imprisonment. A panel
of this Court affirmed his judgment of sentence and our Supreme Court denied
his subsequent petition for allocatur.
On November 17, 2011, Appellant filed a timely pro se PCRA petition.
The PCRA court appointed counsel who later filed an amended petition. The
PCRA court issued notice of its intent to dismiss Appellant’s petition without a
hearing, and ultimately dismissed the petition. This timely appeal follows.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of
law, our scope of review is de novo. See id.
“The right to an evidentiary hearing on a post-conviction petition is not
absolute.” Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010)
(citations and brackets omitted). A PCRA court may decline to hold a hearing
where it can determine, from the record, that there are no genuine issues of
material fact. See Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008). “With respect to the PCRA court’s decision to deny a request for an
evidentiary hearing … such a decision is within the discretion of the PCRA court
and will not be overturned absent an abuse of discretion.” Commonwealth
v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citation omitted).
Appellant’s sole issue on appeal asserts the ineffective assistance of trial
counsel. We presume counsel provided effective assistance; Appellant has the
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burden of proving otherwise. See Commonwealth v. Pond, 846 A.2d 699,
708 (Pa. Super. 2004). “In order for [an a]ppellant to prevail on a claim of
ineffective assistance of counsel, he must show, by a preponderance of the
evidence, ineffective assistance of counsel which … so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.
Super. 2005) (citation omitted). Further,
[an a]ppellant must plead and prove by a preponderance of the
evidence that: (1) the underlying legal claim has arguable merit;
(2) counsel had no reasonable basis for his action or inaction; and
(3) [a]ppellant suffered prejudice because of counsel’s action or
inaction.
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).
“Arguable merit exists when the factual statements are accurate and
could establish cause for relief. Whether the facts rise to the level of arguable
merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,
540 (Pa. Super. 2015) (citations and internal quotation marks omitted).
“Prejudice is established if there is a reasonable probability that, but for
counsel’s errors, the result of the proceedings would have been different. A
reasonable probability is probability sufficient to undermine confidence in the
outcome.” Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013)
(en banc) (citations and internal quotation marks omitted).
Appellant claims trial counsel rendered ineffective assistance by failing
to raise a Rule 600 claim prior to trial. Because Appellant believes that this
motion would have resulted in dismissal of his charges, he contends that trial
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counsel could not have had a reasonable basis for failing to do so and that he
was prejudice by trial counsel’s failure.
Rule 600 of our Rules of Criminal Procedure requires the Commonwealth
bring a defendant to trial within 365 days of the filing of the criminal complaint.
See Pa.R.Crim.P. 600(A)(2)(a). This time period is calculated after taking into
account both excludable time and excusable delay. See Commonwealth v.
Ramos, 936 A.2d 1097, 1103 (Pa. Super. 2007). Excludable time includes
delays attributable to a defendant or his counsel. See Commonwealth v.
Matis, 710 A.2d 12, 16 (Pa. 1998). Excusable time includes delays that occur
despite the due diligence of the Commonwealth and beyond its control. See
Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa. Super. 2013). Charges
must be dismissed for failure to abide by Rule 600 only where the
Commonwealth fails to bring a defendant to trial within 365 days, calculated
after taking into account all excusable delays and excludable time. See id., at
880.
Because a successful Rule 600 motion would have resulted in dismissal
of charges, prejudice in a PCRA context will be established upon a showing of
a meritorious claim. See Commonwealth v. Lynn, 815 A.2d 1053, 1056 (Pa.
Super. 2003). Therefore, in order to determine if trial counsel was indeed
ineffective, we must obviously assess if Appellant’s Rule 600 motion would
been successful.
Here, based upon our review of the record, we are unable to determine
whether Appellant’s Rule 600 motion would have been meritorious. While the
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PCRA court concludes in its opinion that the Rule 600 motion is baseless, it
fails to undertake any analysis of which party occasioned the repeated delays
in this case. Our independent review of the docket also fails to illuminate this
issue. For instance, the docket indicates many of the delays, but without
reference to which party requested them. Therefore, we lack the necessary
information to determine if a Rule 600 motion would have been successful.
As such, we are constrained to vacate the PCRA court’s order and
remand this case to the PCRA court to conduct an evidentiary hearing.
Specifically, we direct the PCRA court to review the docket entries in
conjunction with the evidentiary hearing to determine whether Appellant, the
Commonwealth, or the court occasioned the repeated delays. The PCRA court
shall then render the necessary findings of fact and conclusions of law with
respect to the merits of the underlying Rule 600 claim. The court shall then
reassess the validity of the PCRA petition.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/18
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