J-S07025-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JASON DELVALLE :
:
Appellant : No. 3362 EDA 2018
Appeal from the PCRA Order October 6, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012055-2008
BEFORE: NICHOLS, J., KING, J., and STRASSBURGER, J.*
MEMORANDUM BY KING, J.: Filed: April 15, 2020
Appellant, Jason Delvalle, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which granted in part and denied
in part his first petition filed under the Post-Conviction Relief Act (“PCRA”).1
We affirm in part, vacate in part, and remand for resentencing.
The relevant facts and procedural history of this case are as follows. In
2008, Appellant raped and sexually abused Victim, a minor. The
Commonwealth subsequently charged Appellant with rape of a child,
involuntary deviate sexual intercourse (“IDSI”) with a child, aggravated
indecent assault of a child, endangering the welfare of a child (“EWOC”), and
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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related offenses. On February 4, 2010, Appellant proceeded to a jury trial,
during which Appellant testified in his own defense. Following Appellant’s
testimony, the court accepted the parties’ stipulation to Appellant’s prior
adjudication of delinquency for theft.
On February 9, 2010, the jury convicted Appellant of rape of a child,
IDSI with a child, aggravated indecent assault of a child, EWOC, indecent
assault of a person less than 13, and corruption of minors. With the benefit
of a pre-sentence investigation report, the court sentenced Appellant on May
13, 2010, to an aggregate term of twenty-three and one-half (23½) to forty-
seven (47) years’ incarceration, plus seven (7) years’ probation; the sentence
for IDSI with a child included a mandatory minimum term of ten (10) years’
incarceration. The court also imposed lifetime sex offender registration
requirements.2 On May 20, 2010, Appellant timely filed a post-sentence
motion, challenging the discretionary aspects of sentencing, which the court
denied that same day. This Court affirmed the judgment of sentence on
August 5, 2013, and our Supreme Court denied allowance of appeal on March
5, 2014. See Commonwealth v. Delvalle, 83 A.3d 1056 (Pa.Super. 2013)
(unpublished memorandum), appeal denied, 624 Pa. 686, 87 A.3d 318
(2014).
Appellant timely filed pro se his first PCRA petition on December 29,
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2 The court did not adjudicate Appellant a sexually violent predator.
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2014, and an amended pro se PCRA petition on April 8, 2015. The PCRA court
subsequently appointed counsel, who filed an amended petition on August 25,
2016, and a supplemental amended petition on November 2, 2016. In his
petition, Appellant raised multiple claims of ineffective assistance of counsel
and asserted his sentence included an illegal mandatory minimum term per
Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013) and its Pennsylvania progeny. On October 6, 2017, the PCRA court
granted in part and denied in part Appellant’s PCRA petition. Specifically, the
court granted resentencing without imposition of the mandatory minimum
sentence for the IDSI with a child conviction, but denied PCRA relief in all
other respects regarding Appellant’s ineffectiveness claims. Even though the
court’s order formally denied PCRA relief concerning the ineffectiveness
claims, the order confusingly indicated that it would be issuing notice of its
intent to dismiss the petition without a hearing, per Pa.R.Crim.P. 907,
sometime in the future. The court, however, did not issue Rule 907 notice
subsequent to its order.
On November 19, 2018, the court vacated the May 13, 2010 judgment
of sentence for IDSI with a child, and resentenced Appellant on that charge to
eight and one-half (8½) to sixteen (16) years’ incarceration; the sentences on
Appellant’s other convictions remained intact. Appellant’s aggregate sentence
remained twenty-three and one-half (23½) to forty-seven (47) years’
incarceration, plus seven (7) years’ probation. During the resentencing
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hearing, the following exchange occurred regarding the absence of Rule 907
notice with respect to the denial of Appellant’s ineffectiveness claims:
THE COURT: Okay. I already ruled on the
[resentencing issue] of the PCRA [petition], I believe, back
on October 6 of 2017. The other issues in the PCRA
[petition], I dismissed those, but I allowed the
Commonwealth to, as further agreement, on the
resentencing issue on the one charge. I have not filed a
[Rule] 907 notice or anything along those lines on the
dismissal pending the results of this resentencing hearing.
So there’s nothing to offer.
* * *
THE COURT: As a result of the [c]ourt’s decision
on the Post-Conviction Relief Act proceeding, [Appellant] is
advised he has the right to appeal.
[COMMONWEALTH]: That’s correct, Your Honor. Your
Honor has given the defense adequate notice in advance of
its intention to dismiss. [Appellant] is present in court and
counsel is well aware of the fact that this [c]ourt intended
to dismiss the other issues.
THE COURT: You’re saying it obviates the need
for a [Rule] 907 [notice]?
[COMMONWEALTH]: I believe so.
THE COURT: Does defense agree?
[DEFENSE COUNSEL]: I agree, because [Appellant]’s going
to appeal.
(N.T. Resentencing Hearing, 11/19/18, at 5-6).
On November 21, 2018, Appellant filed a notice of appeal. The court
ordered Appellant on December 6, 2018, to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b); Appellant timely complied on
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January 4, 2019, raising challenges only to the denial of PCRA relief on his
ineffectiveness claims.
Appellant raises two issues for our review:
WHETHER THE COURT ERRED IN DENYING…APPELLANT’S
PCRA PETITION WITHOUT AN EVIDENTIARY HEARING ON
THE ISSUES RAISED IN THE AMENDED PCRA PETITION
REGARDING TRIAL COUNSEL’S INEFFECTIVENESS[?]
WHETHER THE COURT ERRED IN NOT GRANTING RELIEF ON
THE PCRA PETITION ALLEGING COUNSEL WAS
INEFFECTIVE[?]
(Appellant’s Brief at 10).
As a preliminary matter, the timeliness of an appeal is a jurisdictional
question, which this Court may raise sua sponte. Commonwealth v.
Trinidad, 96 A.3d 1031 (Pa.Super. 2014), appeal denied, 627 Pa. 758, 99
A.3d 925 (2014). “[T]he notice of appeal required by Rule 902 (manner of
taking appeal) shall be filed within 30 days after the entry of the order from
which the appeal is taken.” Pa.R.A.P. 903(a). Absent extraordinary
circumstances such as fraud or some breakdown in the processes of the court,
this Court has no jurisdiction to entertain an untimely appeal.
Commonwealth v. Patterson, 940 A.2d 493 (Pa.Super. 2007), appeal
denied, 599 Pa. 691, 960 A.2d 838 (2008).
In general, where a PCRA court denies relief on all ineffectiveness claims
but grants limited relief in the form of resentencing, an appellant must appeal
from the order denying relief on the ineffectiveness claims within 30 days; the
appeal period is not tolled pending resentencing. Commonwealth v.
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Gaines, 127 A.3d 15 (Pa.Super. 2015) (en banc). Specifically, this Court
explained:
In general, appeals are properly taken from final orders.
See Pa.R.A.P. 341(b)(2) (stating…appeal lies from…order
that “is expressly defined as a final order by statute[]”). …
Pennsylvania Rule of Criminal Procedure 910 governs PCRA
appeals and provides as follows.
An order granting, denying, dismissing, or otherwise
finally disposing of a petition for post-conviction
collateral relief shall constitute a final order for
purposes of appeal.
Pa.R.Crim.P. 910. By its plain text, Rule 910 has no
exceptions. It is absolute. Further, the comment to Rule
910 states that “[a] partial disposition under Rule 907[3] is
not a final order until the judge has fully disposed of all
claims.” Id. at cmt.
In our view, there can be no serious dispute that the order
granting in part and denying in part all the issues raised in
the PCRA petition “finally disposed” of [a]ppellant’s PCRA
petition. Pa.R.Crim.P. 910. Here, [a]ppellant’s PCRA
petition raised several claims, each seeking either a new
trial or resentencing. The PCRA court granted one
sentencing claim and denied all claims for a new trial. As a
result, the court’s July 15, 2013 order ended collateral
proceedings and called for a new sentencing proceeding,
which is a trial court function, not a collateral proceeding
function. Therefore, the PCRA court’s order disposed of all
of [a]ppellant’s claims in his PCRA petition, terminating its
role in the proceedings. See id. at cmt. Under a plain,
straightforward application of Rule 910, the PCRA court’s
order was a final one.
Id. at 17-18 (internal footnotes omitted) (quashing appeal where appellant
did not appeal within 30 days of order denying PCRA relief on all claims
requesting new trial but granting limited resentencing relief).
Instantly, the PCRA court entered an order granting in part and denying
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in part Appellant’s PCRA petition on October 6, 2017. Because the court’s
order denied all of Appellant’s ineffectiveness claims, the order was “final” for
purposes of Rule 910, ending all collateral proceedings. See id. Although the
court also ordered resentencing, the resentencing proceeding is a trial court
function, not a collateral proceeding function. Id. Consequently, Appellant’s
appeal from the denial of PCRA relief on his ineffectiveness claims was due
within 30 days, on Monday, November 6, 2017.
Nevertheless, the October 6, 2017 order created confusion by indicating
that Rule 907 notice would be forthcoming, even though Rule 907 notice
should have preceded the court’s order. See Pa.R.Crim.P. 907(1) (explaining
that if judge is satisfied from review of PCRA petition that there are no genuine
issues concerning any material fact and that defendant is not entitled to post-
conviction relief, and no purpose would be served by any further proceedings,
judge shall give notice to parties of intention to dismiss petition and shall state
in notice reasons for dismissal; defendant may respond to dismissal within 20
days of date of notice; judge thereafter shall order petition dismissed, grant
leave to file amended petition, or direct that proceedings continue). The
court’s October 6, 2017 order also failed to advise Appellant of his appellate
rights. See Pa.R.Crim.P. 907(4) (stating when petition is dismissed without
hearing, judge shall promptly issue order to that effect and shall advise
defendant by certified mail, return receipt requested, of right to appeal from
final order disposing of petition and of time limits within which appeal must
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be filed).
Under these circumstances, it was reasonable for Appellant to believe
the October 6, 2017 order was not a “final” order under Rule 910. The PCRA
court’s errors constitute a breakdown in the operations of the court, which
excuses Appellant’s late filing of his notice of appeal. See Patterson, supra.
See also Commonwealth v. Meehan, 628 A.2d 1151 (Pa.Super. 1993),
appeal denied, 538 Pa. 667, 649 A.2d 670 (1994) (excusing untimeliness of
appeal from denial of PCRA petition, where PCRA court failed to advise
petitioner of his right to appeal). Thus, we decline to dismiss the appeal as
untimely and proceed to address the issues Appellant raises in his brief.
In his issues combined, Appellant argues trial counsel failed to present
an expert witness to rebut the testimony of the Commonwealth’s expert, Dr.
Maria McColgan, that 95% of the sexual abuse victims she had examined
exhibited no signs of physical injury. Appellant asserts trial counsel also failed
to present character witnesses in response to the admission of Appellant’s
prior adjudication for theft, a crimen falsi offense. Appellant claims trial
counsel further erred by failing to preserve a challenge to the discretionary
aspects of his sentence on direct appeal by excluding from Appellant’s post-
sentence motion, a claim that the original sentencing court failed to explain
its sentencing rationale on the record. Appellant maintains appellate counsel
attempted to challenge the discretionary aspects of his sentence on direct
appeal, but this Court deemed the issue waived for the insufficient post-
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sentence motion. Appellant avers his EWOC sentence was above the
aggravated range of the sentencing guidelines, so but for counsel’s failure to
preserve the issue, Appellant would have received a reduced sentence.
Appellant contends his various ineffective assistance of counsel claims amount
to cumulative error. Appellant insists the PCRA court erred by declining to
hold an evidentiary hearing on his claims. Appellant concludes this Court
should vacate the order denying PCRA relief and grant appropriate relief.3 We
disagree.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101, 108 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795
(2011). This Court grants great deference to the findings of the PCRA court if
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3 Appellant also argues on appeal that he received an illegal mandatory
minimum sentence on his IDSI with a child conviction. The record confirms
the PCRA court vacated the illegal sentence and Appellant received a new
sentence that did not include a mandatory minimum term. Thus, the record
belies this claim.
Further, to the extent Appellant complains about the lack of Rule 907 notice,
Appellant agreed during the November 19, 2018 resentencing hearing that
Rule 907 notice was unnecessary. Additionally, Appellant did not include in
his Rule 1925(b) statement any claim regarding Rule 907 notice or his claim
of “cumulative error.” Therefore, those complaints are waived on appeal. See
Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005)
(quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309
(1998)) (stating: “[A]ny issues not raised in a [Rule] 1925(b) statement will
be deemed waived”); Pa.R.A.P. 302(a) (stating: “Issues not raised in the
[PCRA] court are waived and cannot be raised for the first time on appeal”).
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the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d
74 (2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.
2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact, the petitioner is not entitled to PCRA relief, and
no purpose would be served by any further proceedings. Commonwealth v.
Wah, 42 A.3d 335 (Pa.Super. 2012).
The provision of the PCRA regarding a request for an evidentiary hearing
in effect at the time Appellant filed his petition provided: “Where a petitioner
requests an evidentiary hearing, the petition shall include a signed certification
as to each intended witness stating the witness’s name, address, date of birth
and substance of testimony and shall include any documents material to that
witness’s testimony. Failure to substantially comply with the requirements of
this paragraph shall render the proposed witness’s testimony inadmissible.”
42 Pa.C.S.A. § 9545(d)(1) (effective through December 23, 2018). See also
Pa.R.Crim.P. 902(A)(15). It is within a PCRA court’s discretion to decline to
hold an evidentiary hearing where a petitioner fails to provide any certification
regarding potential witnesses. Commonwealth v. Brown, 767 A.2d 576,
583 (Pa.Super. 2001). “[T]he certification requirement can be met by an
attorney or pro se petitioner certifying what the witness will testify
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regarding[;]” the certification requirement can also be met by the proposed
witness or the witness’ attorney. Commonwealth v. Pander, 100 A.3d 626,
640-41 (Pa.Super. 2014) (en banc), appeal denied, 631 Pa. 712, 109 A.3d
679 (2015). The content of the certification must comply with Section
9545(d)(1) and include an accurate summary of the missing witness
testimony, to the best of the certifier’s knowledge. Id. Significantly:
PCRA hearings are not discovery expeditions, but are
conducted when necessary to offer the petitioner an
opportunity to prove his explicit assertion of ineffectiveness
raising a colorable claim about which there remains an issue
of material fact. Particularly when PCRA claims require
examination of trial strategy, it is not enough to take a cold
record, state alternative choices counsel could have made,
and then declare an entitlement to relief. Mere conclusory
allegations, without some proffer as to what counsel would
say in response to the allegations are insufficient to
establish entitlement to relief. Thus a supporting document
from counsel stating his reasons for the course chosen is
generally necessary to establish potential entitlement to a
hearing.
… Although [the Pennsylvania Supreme] Court has
dismissed claims of ineffectiveness where appellant has not
provided counsel’s affidavit, [the Court has] indicated [the
Court] may overlook the failure where appellant adequately
explains why he did not submit it.
Commonwealth v. Cousar, 638 Pa. 171, 192-93, 154 A.3d 287, 299-300
(2017) (internal citations omitted).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). To prevail
on a claim of ineffective assistance of counsel, a petitioner bears the burden
to prove his claims by a preponderance of the evidence. Commonwealth v.
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Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940
A.2d 365 (2007). The petitioner must demonstrate: (1) the underlying claim
has arguable merit; (2) counsel had no reasonable strategic basis for the
asserted action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of the proceedings
would have been different. Id. See also Commonwealth v. Kimball, 555
Pa. 299, 724 A.2d 326 (1999). “A reasonable probability is a probability that
is sufficient to undermine confidence in the outcome of the proceeding.”
Commonwealth v. Spotz, 624 Pa. 4, 34, 84 A.3d 294, 312 (2014) (quoting
Commonwealth v. Ali, 608 Pa. 71, 86-87, 10 A.3d 282, 291 (2010)).
“Where it is clear that a petitioner has failed to meet any of the three, distinct
prongs of the…test, the claim may be disposed of on that basis alone, without
a determination of whether the other two prongs have been met.”
Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786, 797 (2008).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the “reasonable basis”
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
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reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The [appellant] must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. In [Kimball, supra], we held that a criminal
[appellant] alleging prejudice must show that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)
(internal citations and quotation marks omitted).
[T]o prevail on a claim of ineffectiveness for failing to call a
witness, a [petitioner] must prove, in addition to meeting
the three Pierce requirements, that: (1) the witness
existed; (2) the witness was available to testify for the
defense; (3) counsel knew 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 [witness’]
testimony was so prejudicial as to have denied him a fair
trial.
Commonwealth v. Wright, 599 Pa. 270, 331, 961 A.2d 119, 155 (2008). A
petitioner’s failure to identify or present potential witnesses is grounds for
denial of relief. Commonwealth v. Treiber, 632 Pa. 449, 498, 121 A.3d
435, 464 (2015).
To succeed on an ineffectiveness claim for failure to preserve a challenge
to the discretionary aspects of sentencing, the petitioner must demonstrate
the underlying sentencing claim entitles the petitioner to relief.
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Commonwealth v. Jones, 942 A.2d 903 (Pa.Super. 2008), appeal denied,
598 Pa. 764, 956 A.2d 433 (2008). See also Commonwealth v. Reaves,
592 Pa. 134, 923 A.2d 1119 (2007) (providing claim of ineffectiveness for
failure to preserve discretionary sentencing issue requires showing of
reasonable probability that sentencing court would have imposed lesser
sentence).
Instantly, regarding Appellant’s claim trial counsel was ineffective for
failing to present opposing expert testimony, the PCRA court reasoned:
There was no indication in [Appellant’s PCRA] petition of
what relief such an endeavor would have provided, the
grounds for any such relief, [and] an identification of any
affidavits, documents, or other evidence showing that such
grounds existed. Nor was the petition accompanied, with
regard to this issue, by a signed certification as to any
proposed expert witness and the substance of the witness’s
proposed testimony or any documentation material to that
testimony. One can only presume that the proposed
testimony would have been required to have included any
scientific foundation for the proposition that it is not true
that in more than 95% of cases involving children who are
sexually abused, no physical evidence of abuse is revealed
during clinical examinations. Having not provided any of
that information, [Appellant] would have been precluded
from attempting to assert any support for any relief or to
present any witnesses to provide such support at any
evidentiary hearing. [PCRA] counsel appears to have been
under the impression that [Appellant] was entitled to a
hearing to see if he could dig up any such information….
… In terms of the failure to call a witness there was no
indication that (1) such an expert existed (2) who would
have been available to testify and would have been able to
scientifically refute the state’s expert’s statement and [of]
whose existence (3) [trial] counsel was or should have been
informed and (4) that the witness was prepared to
cooperate and would have testified on [A]ppellant’s behalf
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and in his favor on the subject of physical evidence of sexual
abuse and (5) that the absence of such testimony was
prejudicial to [Appellant]’s case. … [Appellant]’s only
explicit [asse]rtion is that his [trial] attorney should have
called an expert witness to refute a single proposition by the
Commonwealth’s expert and nothing more. He made no
attempt to demonstrate what the endeavor would have
accomplished…. Nor did [Appellant] attempt to support his
mere conclusory allegation with some proffer as to what trial
counsel would have said in response to that allegation
without which the claim was of insufficient support to
establish entitlement to relief. …
(PCRA Court Opinion, filed June 28, 2019, at 16-18). The record supports the
PCRA court’s rationale. See Conway, supra. Appellant failed to meet his
burden of satisfying the five-pronged test to succeed on a claim of
ineffectiveness for failing to call a witness and did not identify any potential
expert witness. See Treiber, supra; Wright, supra. Additionally, Appellant
did not (1) obtain a statement from trial counsel detailing counsel’s rationale
for not presenting an opposing expert witness at trial or (2) provide an
explanation for Appellant’s failure to procure such a statement. See Cousar,
supra. Therefore, the PCRA court properly denied Appellant’s claim of
ineffectiveness for failure to present expert witness testimony and Appellant’s
request for an evidentiary hearing on that claim. See Wah, supra; Conway,
supra.
With respect to Appellant’s claim that trial counsel was ineffective for
failing to call character witnesses in response to the Commonwealth’s
introduction of his prior adjudication of delinquency for theft, Appellant did not
establish trial counsel knew or should have known of the proposed character
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witnesses. See Wright, supra. Additionally, Appellant did not (1) obtain a
statement from trial counsel detailing counsel’s reasoning for not presenting
character witnesses at trial or (2) provide an explanation for Appellant’s failure
to procure such a statement. See Cousar, supra. Therefore, Appellant was
not entitled to PCRA relief or an evidentiary hearing on that claim. See Wah,
supra; Conway, supra.
Regarding Appellant’s infectiveness claim for failure to preserve a
challenge to the discretionary aspects of Appellant’s EWOC sentence, initially,
Appellant cites no law articulating why this claim would have raised a
substantial question for review on direct appeal had it been properly preserved
in his post-sentence motion. See Pa.R.A.P. 2119(a); Commonwealth v.
Johnson, 604 Pa. 176, 191, 985 A.2d 915, 924 (2009), cert. denied, 562 U.S.
906, 131 S.Ct. 250, 178 L.Ed.2d 165 (2010) (stating claim is waived where
appellate brief does not include citation to relevant authority or fails to develop
issue in any meaningful fashion capable of review). Therefore, this ineffective
assistance of counsel claim is arguably waived.
Moreover, the PCRA court stated:
[A]ppellant having failed to develop any argument, either
factual or legal, that there was any possibility that a post-
sentence motion alleging that the trial court had not set
forth adequate reasons on the record to support its sentence
would have had any possibility of success and resulted in a
lesser sentence…again failed to meet the three part
Strickland/Pierce ineffective assistance of counsel test. …
Present counsel’s banal but completely unsupported
reproach that [Appellant] was ‘prejudiced by this
ineffectiveness because it precluded him from having a
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potentially meritorious issue reviewed by the appellate court
and prior counsels’ failure to preserve this issue before the
courts in a sufficient manner cost him the opportunity to
have his sentence reduced or reviewed’ is just overblown
hyperbole which by no means amounted to the development
of a colorable claim demonstrating that there were actual
issues of material fact that the PCRA requires petitioners to
supply.
(PCRA Court Opinion at 22-23). We accept the PCRA court’s analysis that
Appellant failed to establish prejudice. See Steele, supra; Reaves, supra.
Therefore, the PCRA court properly denied Appellant’s claim of ineffective
assistance of counsel concerning the discretionary aspects of sentencing and
Appellant’s request for an evidentiary hearing on this claim. See Wah,
supra; Conway, supra.
Notwithstanding the propriety of the court’s denial of PCRA relief on
Appellant’s ineffectiveness claims, our review of the record shows the court’s
November 19, 2018 judgment of sentence is legally infirm. See
Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super. 2003) (en banc)
(explaining challenges to illegal sentence may be raised by this Court sua
sponte; illegal sentence must be vacated). Issues related to the legality of a
sentence are questions of law. Commonwealth v. Diamond, 945 A.2d 252,
256 (Pa.Super 2008), appeal denied, 598 Pa. 755, 955 A.2d 356 (2008). Our
“standard of review is de novo and our scope of review is plenary.” Id. The
Sentencing Code provides, in relevant part: “The court shall impose a
minimum sentence of confinement which shall not exceed one-half of the
maximum sentence imposed.” 42 Pa.C.S.A. § 9756(b)(1).
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Instantly, upon resentencing, the court imposed a term of eight and
one-half (8½) to sixteen (16) years’ incarceration on the IDSI with a child
conviction. (See Resentencing Order, 11/19/18, at 1.) The minimum
incarceration term, 8½ years, is greater than half of the maximum
incarceration term, 16 years. Therefore, the November 19, 2018 sentence for
the IDSI with a child conviction is illegal. See 42 Pa.C.S.A. § 9756(b)(1).
Based upon the foregoing, we affirm the PCRA court’s denial of relief
concerning Appellant’s ineffectiveness claims, vacate the November 19, 2018
judgment of sentence in its entirety, and remand for resentencing. 4 See
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4 Upon remand, the resentencing court must be cognizant of which sexual
offender reporting requirements apply to Appellant’s convictions. In
December 2012, SORNA, at 42 Pa.C.S.A. §§ 9799.10-9799.41, became
effective as the statute governing the registration and supervision of sex
offenders. Following Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189
(2017), cert. denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018)
and Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017) (“Butler
I”), rev’d, 25 WAP 2018, ___ Pa. ___, ___ A.3d ___, 2020 WL 1466299 (Pa.
filed March 26, 2020), the Pennsylvania General Assembly enacted legislation
to amend SORNA. See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act 10”). Act
10 amended several provisions of SORNA, and also added several new
sections found at 42 Pa.C.S.A. §§ 9799.42, 9799.51-9799.75. In addition,
the Governor of Pennsylvania signed new legislation striking the Act 10
amendments and reenacting several SORNA provisions, effective June 12,
2018. See Act of June 12, 2018, P.L. 1952, No. 29 (“Act 29”). Through Act
10, as amended in Act 29, the General Assembly created Subchapter I, which
addresses sexual offenders who committed an offense on or after April 22,
1996, but before December 20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75.
Subchapter I contains less stringent reporting requirements than Subchapter
H, which applies to offenders who committed an offense on or after December
20, 2012. See 42 Pa.C.S.A. §§ 9799.13, 9799.54. Notably, this Court
recently determined the internet dissemination provision of Subchapter I is
unconstitutional because it violates the federal ex post facto clause. See
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Commonwealth v. Bartrug, 732 A.2d 1287 (Pa.Super. 1999), appeal
denied, 561 Pa. 651, 747 A.2d 896 (1999) (holding sentencing error on one
count in multi-count case generally requires all sentences for all counts to be
vacated so court can restructure entire sentencing scheme). See also
Commonwealth v. Goldhammer, 512 Pa. 587, 593, 517 A.2d 1280, 1283
(1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987)
(stating generally if appellate court alters overall sentencing scheme, then
remand for re-sentencing is proper).
Order affirmed; judgment of sentence vacated; case remanded for
resentencing. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/20
____________________________________________
Commonwealth v. Moore, 222 A.3d 16 (Pa.Super. 2019). Here, Appellant’s
sex offenses took place in 2008, so Subchapter I applies to his convictions.
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