J-S52019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENDALL WILLIAMS,
Appellant No. 2194 EDA 2012
Appeal from the PCRA Order July 10, 2012
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0007004-2005
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 22, 2016
Appellant, Kendall Williams, appeals pro se from the July 10, 2012
order entered in the Court of Common Pleas of Montgomery County (“PCRA
court”) denying relief under the Post-Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-46. Appellant raises five issues on appeal. Upon
review, we affirm.
The PCRA court summarized the factual and procedural history as
follows.
On July 9, 2007, Appellant appeared before the Honorable
Paul W. Tressler and entered into an open guilty plea to
attempted murder and possessing an instrument of crime. All
remaining counts were nolle prossed. On October 12, 2007,
Judge Tressler imposed a seventeen and one-half (17½) to
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*
Retired Senior Judge assigned to the Superior Court.
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thirty-five (35) year sentence, with a five (5) year consecutive
probation [sentence]. Appellant, through counsel, filed a
“Petition to Reinstate Appellate Rights Nunc Pro Tunc” on July
15, 2008. Appellant’s sentence was affirmed through a Superior
Court order dated June 26, 2009.
On May 26, 2010, Appellant filed a [m]otion for [p]ost-
[c]onviction [c]ollateral [r]elief, in which he alleged both trial
counsel’s (John Armstrong) and appellate counsel’s (Bonnie-Ann
Brill Keagy) ineffectiveness prejudiced him. On June 2, 2010,
Judge Tressler appointed James Tone, Esquire to represent
Appellant in this matter. On August 17, 2010, Judge Tressler
entered an order granting Attorney Tone an additional thirty
days to review the record or file an amended petition. From [the
PCRA court’s] review of the record, it seems that Appellant then
filed a complaint against Attorney Tone with the Disciplinary
Board and the matter was placed on hold. Attorney Tone filed a
detailed “no merit” letter, dated January 17, 2012, pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) as
well as a petition to withdraw as counsel, stating that in his
opinion [Appellant] is not entitled to relief under the PCRA.
Following the [PCRA court’s] independent review of the record,
[the PCRA court] concurred with Attorney Tone’s review of the
case. However, it was [the PCRA court’s] belief that there may
have been some merit as to the limited issue of [Armstrong’s]
alleged failure to call character witnesses at Appellant’s
sentencing. Through an order dated March 2, 2012, [the PCRA
court] required Attorney Tone to file an amended petition on this
issue only and the Commonwealth to thereafter file a response.
After considering both documents, [the PCRA court] concluded
that the issue was meritless, there were no genuine issues of
material fact, that [Appellant’s] PCRA petition should be
dismissed without a hearing and consequently entered its 907(1)
Notice on April 3, 2012.
On May 9, 2012, the [PCRA court] received Appellant’s
response to its 907(1) Notice, which prompted the [PCRA court]
to have a limited evidentiary hearing on July 3, 2012 regarding
the issue of Appellant’s request for petition for allowance of
appeal. After receiving all documents regarding the issue, the
[PCRA court] found the issue was meritless and issued its [f]inal
[o]rder of [d]ismissal on July 10, 2012.
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PCRA Court Opinion, 8/28/2012, at 1-2 (footnotes omitted). Appellant filed
the instant appeal on August 7, 2012 and a 1925(b) statement on August
27, 2012. The PCRA court filed a 1925(a) opinion on August 28, 2012.1
Appellant raises five issues on appeal that this Court quotes verbatim.
I. Whether the PCRA Court erred in denying appellant relief
for being sentenced by the [PCRA] court within the
aggravated range of the guidelines and enhanced on the
basis of charges that were (nolle prossed) dismissed and
sentenced excessively beyond fundamental norms and
predicated on improper factors while discarding remorse
and penalized for a statutorily reiterated allocution.
II. Whether the PCRA Court erred in denying [A]ppellant relief
for being sentenced by the [PCRA] court for misapplication
of the sentencing guidelines in computing the OGS and
PRS to sentence on the crime alone.
III. Whether the PCRA Court erred in denying [A]ppellant’s
“Motion for Change of Appointed PCRA Counsel” subject to
meritorious “Office of Disciplinary Counsel” (ODC) claims
for subverting appellate relief by unilaterally amended
PCRA Petition coupled with ineffectiveness of self and trial
counsel.
IV. Whether the PCRA Court erred in denying appellant relief
for failing to find trial counsel ineffective in trial and
sentencing matters individual and cumulative coupled with
preoccupation of undisclosed serious personal issues while
not objecting to appellant’s prejudicial and error plagued
PSI, misrepresenting an involuntary, unknowing, and/or
unintelligent plea agreement with stand mute provision
and Sixth Amendment Constitutional witness cross-
examination violations, illegal mandatory minimum notice,
and contrary to specific requests of record failure to
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1
This matter languished in this Court for four years because Appellant filed
numerous applications for relief and motions for reconsideration from the
denial of those applications.
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provide critical expert and character mitigation witnesses,
denied pursuit of forensic defense option recommended by
approved experts and failure to file post-sentencing
motions.
V. Whether the PCRA Court erred in denying [A]ppellant relief
for failing to find direct [appeal] counsel ineffective for
improper pursuit of post sentencing motions, discretionary
sentencing including ineffectiveness of trial counsel and for
not pursuing claims and/or seeking “Petition for Allowance
of Appeal” (PAA) in the PA Supreme Court.
Appellant’s Brief at 20-21.
Appellant’s first two issues are challenges to the discretionary aspects
of sentencing, namely Appellant asserts that he was sentenced in the
aggravated range. A challenge to the discretionary aspects of sentencing is
not a cognizable claim under the PCRA. See Commonwealth v. Fowler,
930 A.2d 586, 593 (Pa. Super. 2007) (citations omitted); 42 Pa.C.S.A.
§ 9543. A challenge to the legality of sentence is a cognizable claim under
the PCRA; however, Appellant is not asserting that his sentence is illegal.
Appellant’s first two claims are not cognizable under the PCRA; therefore,
Appellant’s claims fail. Additionally, Appellant’s second claim was not raised
in his 1925(b) statement; therefore, Appellant’s claim is waived. See
Pa.R.A.P. 1925(b)(4)(vii).
Appellant’s third claim asserts the PCRA court erred when it denied
Appellant’s motion for change of appointed PCRA counsel. Appellant’s
argument is disjointed and unclear; however, as far as this Court can
discern, Appellant is claiming that Attorney Tome filed a Turner/Finley
letter in retaliation for Appellant filing a complaint against Attorney Tome
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with the Pennsylvania Disciplinary Board. Upon our review of the record,
Attorney Tome filed the Turner/Finley letter prior to Appellant requesting
new PCRA counsel. Moreover, Appellant consented to Attorney Tome
representing him at the July 3, 2012 evidentiary hearing. This hearing
occurred after Attorney Tome filed the Turner/Finley letter. Therefore,
Appellant’s claim lacks merit as it has no support in the record.
Appellant’s fourth claim consists of numerous claims of ineffective
assistance of counsel. A PCRA petitioner is entitled to relief if he pleads and
proves that prior counsel rendered ineffective assistance of counsel.
42 Pa.C.S.A. § 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a
PCRA petitioner 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 acting or failing to act; and (3) the petitioner suffered
resulting prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,
780 (Pa. Super. 2015) (en banc). “A petitioner must prove all three factors
of the ‘Pierce[2] test,’ or the claim fails.” Id. “[O]n appeal, a petitioner
must adequately discuss all three factors of the ‘Pierce’ test or the appellate
court will reject the claim.” Id.
As far as this Court can discern, Appellant asserts that trial counsel
was ineffective for 1) being preoccupied with a serious family illness, 2)
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2
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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failing to object to the veracity of the PSI, 3) failing to follow an open-plea
agreement, 4) failing to object to a mandatory minimum sentence, 5) failing
to call a character witness at sentencing, and 6) failing to file post-sentence
motions. Appellant failed to address the second and third prongs of the
Pierce test for any of these allegations; therefore, Appellant’s claims of
ineffective assistance of counsel fail.
Finally, Appellant asserts that direct appellate counsel was ineffective
for failing to raise a claim of ineffective assistance of trial counsel on direct
appeal. Appellant’s claim lacks merit as the “general rule of deferral to PCRA
review remains the pertinent law on the appropriate timing of review of
claims of ineffective assistance of counsel.” Commonwealth v. Holmes,
79 A.3d 562, 563 (Pa. 2013). There are only two exceptions to Holmes.
The first is when the claim is both meritorious and apparent such that
immediate consideration or relief is warranted. Id. at 577. The second
applies only when there are multiple claims of trial counsel ineffectiveness
and the defendant expressly waives PCRA review. Id. at 563-64. Appellant
failed to establish that either of these circumstances existed; therefore,
direct appellate counsel could not have been ineffective for failure to raise
ineffectiveness claims on direct appeal. Appellant’s claim fails.
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As all of Appellant’s claims lack merit,3 we find the PCRA court properly
dismissed Appellant’s PCRA petition.
Order affirmed. Application for relief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2016
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3
Appellant filed an application for relief seeking permission to file a reply
brief that exceeds the page limit and an extension of time to file such brief
on November 3, 2016. In light of the foregoing, Appellant’s application is
denied.
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Com. v. Williams, K.
Combined Opinion