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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
HENRY L. WILLIAMS, No. 1945 MDA 2018
Appellant
Appeal from the PCRA Order Entered October 25, 2018,
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0001747-2010
BEFORE: LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 12, 2019
Henry L. Williams appeals from the October 25, 2018 order denying in
part, and dismissing in part, his petition filed pursuant to the Post Conviction
Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we
affirm.
The relevant facts and extensive procedural history of this case were set
forth by the PCRA court in its October 25, 2018 opinion and need not be
reiterated here. (See PCRA court opinion, 10/25/18 at 2-3.) In sum, on
April 19, 2011, a jury found appellant guilty of corrupt organizations, criminal
conspiracy, criminal use of a communication facility, and four counts of
possession with intent to deliver a controlled substance.' On August 4, 2011,
' 18 Pa.C.S.A. §§ 911(b)(3)-(4), 903, 7512(a), and 35 P.S. § 780-113(a)(30),
respectively.
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the trial court sentenced appellant to an aggregate term of 11 to 22 years'
imprisonment, which included several mandatory minimum sentences based
on the weight of drugs involved. On May 8, 2013, this court affirmed
appellant's judgment of sentence, and our supreme court denied appellant's
petition for allowance of appeal on November 19, 2013. See Commonwealth
v. Williams, 81 A.3d 993 (Pa.Super. 2013) (unpublished memorandum),
appeal denied, 80 A.3d 777 (Pa. 2013).
While appellant's direct appeal was pending, the Supreme Court of the
United States decided Alleyne v. United States, 570 U.S. 99 (2013), on
June 17, 2013.2 Thereafter, on December 4, 2014, appellant filed a timely
pro se PCRA petition. Counsel was appointed and filed an amended petition
on appellant's behalf on August 14, 2015. In light of Alleyne and its progeny,
the PCRA court granted appellant's PCRA petition, vacated his August 4, 2011
judgment of sentence, and ordered that appellant be resentenced. On
2 In Alleyne, the Supreme Court held, "[a]ny fact that, by law, increases the
penalty for a crime is an 'element' that must be submitted to the jury and
found beyond a reasonable doubt." Alleyne, 570 U.S. at 102. In applying
Alleyne, this court has held that, generally, Pennsylvania's mandatory
minimum sentencing statutes are unconstitutional because the mandatory
sentencing statutes "permit[] the trial court, as opposed to the jury, to
increase a defendant's minimum sentence based upon a preponderance of the
evidence" standard. Commonwealth v. Newman, 99 A.3d 86, 98
(Pa.Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015). The
Newman court further held that if a defendant's case was pending on direct
appeal when Alleyne was decided, that defendant was entitled to retroactive
application of Alleyne. Id. at 90. Thereafter, in Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015), our supreme court reiterated that
Pennsylvania's drug trafficking mandatory minimum sentences were
unconstitutional under Alleyne. Id. at 262.
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October 16, 2015, appellant was resentenced to an aggregate term of 11 to
22 years' imprisonment. On October 26, 2015, appellant filed a timely
post -sentence motion challenging the discretionary aspects of his sentence,
which was denied on October 28, 2015. On November 23, 2016, a panel of
this court affirmed appellant's judgment of sentence, and appellant did not
seek allowance of appeal with our supreme court. See Commonwealth v.
Williams, 151 A.3d 621 (Pa.Super. 2016).
Appellant filed the instant pro se PCRA petition on September 5, 2017,
and counsel was appointed to represent him. Counsel's appointment was
rescinded, and Lea T. Bickerton, Esq. ("PCRA counsel"), entered her
appearance on behalf of appellant. PCRA counsel filed an amended petition
on appellant's behalf on April 30, 2018. On June 15, 2018, the PCRA court
provided appellant with notice of its intention to dismiss his petition without a
hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant filed a response to the
PCRA court's Rule 907 notice on July 16, 2018. Thereafter, on October 25,
2018, the PCRA court issued a comprehensive opinion and order denying
appellant's PCRA petition, in part, and dismissing the petition, in part,
concluding the petition was timely filed with respect to the resentencing
issues. This timely appeal followed on November 26, 2018.3
3 The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b). On
December 3, 2018, the PCRA court filed a one -page Rule 1925(a) opinion
indicating that it was relying on the reasoning set forth in its October 25, 2018
opinion.
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Appellant raises the following issues for our review:
1. Did the PCRA [c]ourt err by denying
[appellant's] claims regarding ineffective
assistance of resentencing and 2016 appeal
counsel[4] without a hearing?
2. Did the PCRA court err by dismissing the rest of
[appellant's] claims as untimely filed?
Appellant's brief at 7.
Proper appellate review of a PCRA court's dismissal of a PCRA petition
is limited to the examination of "whether the PCRA court's determination is
supported by the record and free of legal error." Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). "The PCRA court's
findings will not be disturbed unless there is no support for the findings in the
certified record." Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). "This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding." Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted). Additionally, "[i]t is within the
PCRA court's discretion to decline to hold a hearing if the petitioner's claim is
patently frivolous and has no support either in the record or other evidence."
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (citations
omitted).
4 Appellant was represented during his 2015 resentencing and subsequent
appeal by Joseph J. Kenneff, Esq. (hereinafter, "Attorney Kenneff" or
"resentencing counsel").
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"The timeliness of a PCRA petition is a jurisdictional requisite."
Commonwealth v. Ba!lance, 203 A.3d 1027, 1031 (Pa.Super. 2019)
(citation omitted). "Pennsylvania law makes clear no court has jurisdiction to
hear an untimely PCRA petition." Id. All PCRA petitions, including second and
subsequent petitions, must be filed within one year of when a defendant's
judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). "[A]
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review." 42 Pa.C.S.A. § 9545(b)(3).
An otherwise untimely -filed PCRA petition will be excused if a petitioner
satisfies one of the following three statutory exceptions to the PCRA time -bar
enumerated in Section 9545(b)(1):
(i) the failure to raise the claim previously was the
result of interference by government officials
with the presentation of the claim in violation of
the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated
were unknown to the petitioner and could not
have been ascertained by the exercise of due
diligence; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the
United States or the Supreme Court of
Pennsylvania after the time period provided in
this section and has been held by that court to
apply retroactively.
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42 Pa.C.S.A. § 9545(b)(1).
In the instant matter, appellant contends in his amended PCRA petition
that an evidentiary hearing is warranted because: (1) trial counsel was
ineffective for "failing to challenge the use of testimony alone to establish the
existence of controlled substances"; (2) trial counsel was ineffective for
"failing to challenge the improper and otherwise incorrect sentencing
guidelines information"; (3) "First Direct Appeal counsel" and "Second Direct
Appeal counsel" were ineffective for "failing to challenge the sufficiency and
weight of the evidence"; (4) "First Direct Appeal counsel" was ineffective for
"failing to raise these first four issues in the first PCRA"; (5) resentencing
counsel, Attorney Kenneff, was ineffective for "failing to properly advocate at
the [re]sentencing hearing"; (6) prior counsel, including Attorney Kenneff,
were ineffective for failing to object to the imposition of the $25,000.00 fine;
and (7) prior counsel were ineffective for "failing to challenge the
constitutionality of the driver['s] license suspensions[.]" (Amended PCRA
Petition, 4/30/18 at 1111 1-7.)
Following our careful review of the record, including the briefs of the
parties, the applicable law, and the well -reasoned opinion of the Honorable
David L. Ashworth, we discern no error on the part of the PCRA court in
denying in part, and dismissing in part, appellant's PCRA petition without an
evidentiary hearing. The PCRA court opinion comprehensively addresses and
disposes of appellant's claims. Accordingly, we adopt this opinion as our own
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and affirm the PCRA court's October 25, 2018 order on the basis of the reasons
stated therein. (See PCRA court opinion, 10/25/18 at 10-13 (concluding that
appellant's October 16, 2015 resentencing did not change the date his
judgment of sentence became final); id. at 14-15 (concluding that any issues
raised with respect to his trial, first sentencing, and first direct appeal were
untimely raised and the court had no jurisdiction to review them, but that
appellant's allegations of ineffective assistance of resentencing counsel,
Attorney Kenneff, were timely raised and cognizable); and id. at 16-20
(concluding that appellant failed to establish by a preponderance of the
evidence that Attorney Kenneff failed to properly advocate on his behalf at the
resentencing hearing or that he suffered prejudice because of any alleged
inaction of counsel).)5
Order affirmed.
5 We note that Attorney Kenneff had no reasonable basis to object to the
imposition of a $25,000 fine, as the record clearly established that the
resentencing court had the benefit of a pre -sentence investigation report and
heard testimony that appellant will be trained and employed as an
HVAC technician upon his release. (See notes of testimony, 10/16/15 at
6-10.) See Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super.
2014) (stating that, to prevail on an ineffectiveness claim, a petitioner must
establish, inter alia, that "the underlying claim has arguable merit[.]"
(citation omitted)), appeal denied, 104 A.3d 523 (Pa. 2014). Additionally,
to the extent appellant argues in his brief that the PCRA court erred in
dismissing his petition because "[t]he first PCRA court didn't comply with
Pa.R.Crim.P. 905 and did not provide notice of the alleged defects in the
pro se petition" (see appellant's brief at 23-29), we find this claim waived.
See Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (stating,
"a claim not raised in a PCRA petition cannot be raised for the first time on
appeal.").
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Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 08/12/2019
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OPINION
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BY: ASHWORTH, J., OCTOBER 25, 2018
Before tho Court is Henry L. Williams' counseled petition filed pursuant lo the
Post Conviction Collateral Relief Act (PCRA). 42 Pa. C.SA. §§ 9541-9546. For the
reasons set forth below, this petition will be denie