J. S93008/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
V. :
:
MICHAEL MCNEIL, :
:
Appellant : No. 931 EDA 2016
:
Appeal from the PCRA Order March 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008047-2012
BEFORE: DUBOW, SOLANO, AND PLATT,* JJ.
MEMORANDUM BY DUBOW, J.: FILED MARCH 01, 2017
Appellant, Michael McNeil, appeals pro se from the March 4, 2016
Order denying his first Petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. He challenges the effectiveness of
trial counsel. After careful review, we conclude that the PCRA court erred in
considering Appellant’s Petition untimely, but we nonetheless affirm.
On April 2, 2013, Appellant entered a negotiated guilty plea to one
count each of Sexual Assault, Corruption of Minors, and Luring a Child into a
Motor Vehicle or Structure1 for luring a 16-year-old girl into his home and
forcing her to perform oral sex on him. In exchange for Appellant’s guilty
*
Retired Senior Judge Assigned to the Superior Court.
1
18 Pa.C.S. §§ 3124.1, 6301, and 2910, respectively.
J. S93008/16
plea, the Commonwealth agreed to withdraw charges of Involuntary Deviate
Sexual Intercourse, Unlawful Contact with a Minor, Indecent Assault,
Indecent Exposure, and Statutory Sexual Assault.
That same day, April 2, 2013, the trial court sentenced Appellant to 5-
10 years of imprisonment on the Sexual Assault conviction, but deferred
sentencing on the remaining two charges and ordered a Sexually Violent
Predator (“SVP”) Assessment.
On July 12, 2013, the trial court reconvened and sentenced Appellant
on the remaining two counts.2 The trial court imposed an aggregate
sentence of 6-12 years of imprisonment.
Appellant did not file a direct appeal. Instead, on July 7, 2014,
Appellant filed a pro se PCRA Petition. The PCRA court appointed PCRA
counsel, who filed a Petition to Withdraw as counsel and an accompanying
no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). In the letter, PCRA counsel argued that the PCRA Petition was
untimely filed.
The PCRA court filed a Notice of Intention to Dismiss PCRA Petition
Without a Hearing, pursuant to Pa.R.Crim.P. 907, and Appellant filed a pro
2
The SVP Assessment determined that Appellant did not meet the criteria of
a SVP.
-2-
J. S93008/16
se response refuting PCRA counsel’s conclusion that the Petition was
untimely filed.
On March 4, 2016, the PCRA court dismissed Appellant’s Petition and
granted PCRA counsel’s Petition to Withdraw, concluding that the Petition
was “untimely and therefore without merit.” PCRA Court Opinion, filed
7/26/16, at 5. The PCRA court also opined in its Pa.R.A.P. 1925(a) Opinion,
with utmost brevity, that Appellant’s underlying claims were without merit.
Id.
Appellant filed a timely appeal. On appeal, Appellant raises three
issues:
1. Whether[,] on March 4, 2016 [the PCRA court] erred when [it]
dismissed Appellant’s PCRA as untimely, even though it was filed
within one year of the final sentencing order?
2. Whether[,] on March 4, 2016 [the PCRA court] erred when [it]
dismissed Appellant’s PCRA as lacking merit without addressing
the fact that [trial counsel] rendered ineffective assistance in
violation of appellant’s rights by convincing him to plead guilty,
otherwise, [sic] he would receive a sentence of 25 to life [sic]?
3. Whether[,] on March 4, 2016 [the PCRA court] erred when [it]
dismissed Appellant’s PCRA as lacking merit without addressing
the failure of [trial counsel’s] ineffective assistance [sic] in failing
to file for suppression of the DNA evidence?
Appellant’s Brief at 3.
When reviewing the denial of a PCRA Petition, “we examine whether
the PCRA court’s determination is supported by the record and free of legal
error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal
quotation marks and citation omitted). “The scope of review is limited to the
-3-
J. S93008/16
findings of the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.” Commonwealth
v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). When the PCRA
court denies a petition without an evidentiary hearing, we “examine each
issue raised in the PCRA petition in light of the record certified before it in
order to determine if the PCRA court erred in its determination that there
were no genuine issues of material fact in controversy and in denying relief
without conducting an evidentiary hearing.” Commonwealth v. Khalifah,
852 A.2d 1238, 1240 (Pa. Super. 2004) (citation omitted).
Timeliness
In his first issue, Appellant avers that the PCRA court incorrectly
concluded that his Petition was untimely because the trial court calculated
timeliness based on the April 2, 2013 hearing in which the trial court
presided over only the first portion of Appellant’s bifurcated sentencing.
Appellant is correct.
The PCRA’s timeliness requirements are jurisdictional in nature, and a
court may not address the merits of the issues raised if the PCRA petition
was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093
(Pa. 2010). Under the PCRA, any PCRA petition “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence
becomes final “at the conclusion of direct review, including discretionary
-4-
J. S93008/16
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. § 9545(b)(3). Where a defendant elects not to file a direct appeal,
his Judgment of Sentence becomes final thirty days after his sentence is
imposed, when the time for filing a direct review expires. Pa.R.Crim.P.
720(A)(3).
The PCRA court found that Appellant’s Judgment of Sentence became
final on May 2, 2013,3 thirty days after the trial court sentenced Appellant on
one count of Sexual Assault. But the trial court did not complete Appellant’s
sentencing on that date, opting not to impose a sentence on the two
remaining counts until a SVP determination could be made. The PCRA
court’s analysis ignores the fact that Appellant’s sentencing was effectively
bifurcated, and that the trial court did not complete Appellant’s sentencing
until July 12, 2013.
As Appellant correctly points out, the PCRA court should have
considered whether his Petition was filed within one year of the date that his
entire Judgment of Sentence became final. All of Appellant’s charges arose
from a single bill of criminal information, and his Judgment of Sentence was
not final until the court sentenced him on all counts and made a
3
The PCRA court’s Pa.R.A.P. 1925(a) Opinion actually states that his
Judgment of Sentence became final on May 2, 2014, one year and thirty
days after the April 2, 2013 sentencing for one count of Sexual Assault. We
presume this was a typographical error.
-5-
J. S93008/16
determination regarding his status as an SVP. See Commonwealth v.
Harris, 972 A.2d 1196, 1201 (Pa. Super. 2009) (“the imposition of SVP
status is a component of the judgment of sentence even though the ultimate
collateral consequences are non-punitive.”).
Appellant’s Judgment of Sentence became final on August 12, 2013,4
upon expiration of the time to file a Notice of Appeal. Therefore, Appellant’s
July 7, 2014 Petition was filed within one year of when his Judgment of
Sentence became final. Although the PCRA court erred in finding that
Appellant’s PCRA Petition was untimely, Appellant is not entitled to relief on
this claim. As discussed infra, Appellant’s underlying claims are either
waived, or lack merit.
Guilty Plea
In his second issue, Appellant avers that trial counsel “coerced him
into entering a guilty plea by telling Appellant that he would be facing a
sentence of 25 years to life [in prison].” Appellant’s Brief at 9. Appellant
avers that trial counsel’s advice regarding his potential maximum sentence
“intimidated Appellant into pleading guilty” and rendered his guilty plea
involuntary.5 Id. at 10.
4
August 11, 2013, was a Sunday. See 1 Pa.C.S. § 1908.
5
As part of this second claim, Appellant attempts to shoe-horn in an
additional argument that trial counsel’s failure to file a suppression motion
rendered his plea involuntary. Appellant develops this argument more fully
in his third claim. However, as discussed infra, these claims are waived.
-6-
J. S93008/16
In order to succeed on a claim of ineffective assistance of counsel, an
appellant must demonstrate (1) that the underlying claim is of arguable
merit; (2) that counsel’s performance lacked a reasonable basis; and (3)
that the ineffectiveness of counsel caused the appellant prejudice.
Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). Furthermore,
[i]t is clear that a criminal defendant’s right to effective counsel
extends to the plea process, as well as during trial. However,
allegations of ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the
ineffectiveness caused the defendant to enter an involuntary or
unknowing plea. Where the defendant enters his plea on the
advice of counsel, the voluntariness of the plea depends on
whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.
Commonwealth v. Wah, 42 A.3d 335, 338-39 (Pa. Super. 2012) (citations
and quotation omitted).
The advice rendered by trial counsel will not be considered outside the
range of competence required unless it is “so unreasonable that no
competent lawyer would have chosen it.” Commonwealth v. Ervin, 766
A.2d 859, 862-63 (Pa. Super. 2000) (quoting Commonwealth v. Miller,
431 A.2d 233, 234 (Pa. 1981)). Our Supreme Court has long defined
“reasonableness” as follows:
Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis
designed to effectuate his client’s interests. The test is not
whether other alternatives were more reasonable, employing a
hindsight evaluation of the record. Although weigh the
alternatives we must, the balance tips in favor of a finding of
-7-
J. S93008/16
effective assistance as soon as it is determined that trial
counsel’s decision had any reasonable basis.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quotation
omitted) (emphasis in original).
In the instant case, the record contains ample evidence showing that
Appellant’s claim is without merit. First, as the PCRA court points out, the
guilty plea transcript includes a lengthy colloquy documenting the knowing,
intelligent, and voluntary nature of Appellant’s plea, including Appellant’s
admission to the crimes. See PCRA Court Opinion, filed 7/26/16, at 5 (citing
N.T., 4/2/16, at 3-36).
Moreover, Appellant has not and cannot establish that trial counsel’s
advice to plead guilty had no reasonable basis. Appellant does not aver that
trial counsel’s advice was incorrect. In fact, after his preliminary hearing,
Appellant was facing nine charges, including three first-degree felonies and
two second-degree felonies. Trial counsel properly advised Appellant that,
were he to be convicted at a trial of all nine charges, his potential sentence
of imprisonment would be substantial. Under the terms of the plea
agreement, the Commonwealth nolle prossed all of the first-degree felony
charges, half of the second-degree felony charges, and two misdemeanor
charges. The trial court sentenced Appellant to an aggregate term of 6-12
years of imprisonment on the remaining three charges.
The Commonwealth’s evidence against Appellant included the
testimony of his victim and Appellant’s DNA recovered from the victim.
-8-
J. S93008/16
Under the facts as they plainly appear on the face of the record, trial counsel
had a reasonable basis for advising Appellant to accept the plea offer. N.T.,
4/2/13, at 19-23. Accordingly, the trial court did not err in concluding that
Appellant is not entitled to relief on this claim.
Suppression of DNA Evidence and Statement
In his final claim, Appellant avers that trial counsel rendered
ineffective assistance when he “refus[ed] to challenge the lack of
Miranda[6] [warnings] and the collection of DNA evidence[.]” Appellant’s
Brief at 12. This final issue is waived because, as the Commonwealth notes,
Appellant did not raise it in his PCRA Petition. Although Appellant attempted
to file an Amended PCRA Petition raising this claim, he failed to file it
properly and, therefore, waived the claim.
Pennsylvania Rule of Criminal Procedure 905 explicitly provides that a
petitioner may only amend a PCRA Petition by direction or leave of the PCRA
court. Pa.R.Crim.P. 905; Commonwealth v. Porter, 35 A.3d 4, 12 (Pa.
2012). Therefore, before a petitioner may amend a PCRA Petition, a
petitioner must seek and obtain leave to amend because amendments to a
PCRA Petition are not “self-authorizing.” Commonwealth v.
Baumhammers, 92 A.3d 708, 730 (Pa. 2014) (quoting Porter, 35 A.3d at
12); see also Commonwealth v. Mason, 130 A.3d 601, 621 n.19 (Pa.
2015) (amendment only permitted by “explicit” direction or leave of court).
6
Miranda v. Arizona, 384 U.S. 436 (1966).
-9-
J. S93008/16
Our appellate courts have “condemned the unauthorized filing of
supplements and amendments to PCRA petitions, and held that claims raised
in such supplements are subject to waiver.” Commonwealth v. Reid, 99
A.3d 470, 484 (Pa. 2014) (finding claims raised in unauthorized
supplemental petitions waived despite trial court entertaining and ruling on
claims); see also Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa. 2013)
(holding that claim alleging trial counsel’s ineffectiveness is waived because
it was not included in the PCRA Petition and the PCRA court did not give
permission to amend the Petition).
Even where the PCRA court entertains and addresses a petitioner’s
numerous PCRA filings and claims, the petitioner has waived the issues
raised in a PCRA Petition unless the petitioner can “identify where in the
record the supplemental petitions were authorized and/or … reconstruct the
record if such authorization was provided off the record.” Reid, supra at
484.
In this case, Appellant filed the Additional Supplement without first
obtaining the leave of court. Although Appellant filed a Motion to Amend
PCRA Petition, the PCRA court did not grant the Motion. Accordingly, we find
that Appellant waived his suppression claim for asserting it in a supplement
without leave of court.
- 10 -
J. S93008/16
Having determined that Appellant is not entitled to relief on any of his
claims, we affirm the PCRA court’s March 4, 2016 Order dismissing his
Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2017
- 11 -