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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CALVIN METZ :
:
Appellant : No. 3094 EDA 2015
Appeal from the PCRA Order October 2, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002989-2010
BEFORE: GANTMAN, P.J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 29, 2017
Appellant, Calvin Metz, appeals from the order entered in the
Philadelphia County Court of Common Pleas, dismissing his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
Appellant broke into his estranged wife’s house and removed approximately
$6,585.00 worth of property. As a result, Appellant was arrested and
charged with burglary and related offenses. Appellant entered a negotiated
guilty plea to burglary on September 8, 2010. That same day, the court
sentenced Appellant to a term of one (1) to two (2) years’ imprisonment,
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1
42 Pa.C.S.A. §§ 9541-9546.
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*Former Justice specially assigned to the Superior Court.
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followed by a consecutive term of four (4) years’ probation. Appellant did
not seek direct review.
The court held a violation of probation hearing for Appellant on July 2,
2013. At the hearing, the parties stipulated that Appellant had failed to
report for probation and changed his residence without notifying his
probation officer. As a result, the court found Appellant in technical violation
and revoked probation. On August 29, 2013, the court re-sentenced
Appellant to a term of five (5) to ten (10) years’ imprisonment for the
burglary conviction. Appellant filed pro se post-sentence motions, which the
court denied. Appellant did not seek further direct review, and his judgment
of sentence became final on September 28, 2013.
Appellant timely filed a pro se PCRA petition on September 16, 2014,
and an amended pro se PCRA petition on January 13, 2015. The PCRA court
appointed PCRA counsel, who subsequently filed a motion to withdraw and
Turner/Finley2 no-merit letter on July 11, 2015. Appellant filed a pro se
response on August 13, 2015. On September 4, 2015, the PCRA court
issued notice of its intent to dismiss Appellant’s PCRA petition pursuant to
Pa.R.Crim.P. 907. Appellant did not respond. The PCRA court denied relief
and allowed counsel to withdraw on October 2, 2015. The PCRA court
appointed Attorney Douglas Earl to represent Appellant on October 5, 2015.
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2
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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Appellant timely filed a notice of appeal on October 6, 2015. On October 9,
2015, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b). Appellant did not comply.
On March 25, 2016, Appellant filed a “Motion for Remand” with this Court so
he could file a Rule 1925(b) statement nunc pro tunc. This Court granted
the motion on April 21, 2016, and directed Appellant to file a Rule 1925(b)
statement.
On May 3, 2016, Appellant timely filed a counseled Rule 1925(b)
statement and an amended Rule 1925(b) statement nunc pro tunc. In his
amended Rule 1925(b) statement Appellant, for the first time, claimed:
PCRA counsel was ineffective for failing to request reinstatement of
Appellant’s direct appeal rights nunc pro tunc so Appellant could challenge
the discretionary aspects of his sentence; and the court relied primarily on
Appellant’s prison tapes when it imposed an excessive sentence, which
overemphasized the need to protect the public and ignored Appellant’s
rehabilitative needs. Appellant also claimed that he raised a meritorious
sentencing issue in his PCRA petition.3
Appellant presents one issue in his brief:
DID THE [PCRA] COURT ERR BY RULING THAT ISSUES
NOT RAISED IN THE RESPONSE TO THE RULE 907 NOTICE
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3
Appellant challenged his August 29, 2013 judgment of sentence on several
grounds in his PCRA petition, but his amended Rule 1925(b) statement fails
to specify which sentencing issue he wanted to preserve.
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ARE WAIVED?
(Appellant’s Brief at 3).
Appellant argues this Court should address the issues Appellant raised
in his amended Rule 1925(b) statement. Appellant baldly asserts he did not
waive these issues for appellate review. Regarding Appellant’s
ineffectiveness of PCRA counsel claim, Appellant essentially avers this Court
should not follow its decision in Commonwealth v. Smith, 121 A.3d 1049
(Pa.Super. 2015), appeal denied, 136 A.3d 981 (2016), which held that a
petitioner’s failure to raise an ineffectiveness of counsel claim after receiving
Rule 907 notice results in waiver of the claim. Appellant, however, fails to
argue why this Court should abandon its decision in Smith and address the
merits of this issue. Likewise, Appellant merely restates the sentencing
issues from his amended Rule 1925(b) statement, but he does not provide
any supporting argument. Appellant concludes this Court should address
Appellant’s issues, vacate his judgment of sentence, and remand this case
for a sentencing hearing. We disagree.
Our standard of review of a grant or 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 (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 the record contains any support for those
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findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). We exercise de novo review over
the PCRA court’s legal conclusions. Commonwealth v. Spotz, 610 Pa. 17,
44, 18 A.3d 244, 259 (2011).
A PCRA petitioner must plead and prove his allegation of error has not
been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). “[A]n issue
is waived if the petitioner could have raised it but failed to do so before trial,
at trial, during unitary review, on appeal or in a prior state post-conviction
proceeding.” 42 Pa.C.S.A. § 9544(b). Where PCRA counsel seeks to
withdraw from representation, the petitioner must preserve any challenge to
counsel’s ineffectiveness in a response to counsel’s no-merit letter or, if
applicable, the court’s Rule 907 notice. See Commonwealth v. Pitts, 603
Pa. 1, 9 n.4, 981 A.2d 875, 880 n.4 (2009). A petitioner’s failure to raise an
ineffectiveness of PCRA counsel claim after receiving Rule 907 notice results
in waiver of the claim. Id. See also Commonwealth v. Ousley, 21 A.3d
1238, 1245 (Pa.Super. 2011), appeal denied, 612 Pa. 698, 30 A.3d 487
(2011) (stating Pitts prohibits this Court’s review of petitioner’s
ineffectiveness of PCRA counsel claim, where issue was raised for first time
in PCRA appeal).
A claim that a sentence is manifestly excessive challenges the
discretionary aspects of sentencing. Commonwealth v. Lutes, 793 A.2d
949 (Pa.Super. 2002). Objections to the discretionary aspects of sentence
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are generally waived if they are not raised at the sentencing hearing or
raised in a motion to modify the sentence imposed at that hearing.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003), appeal
denied, 574 Pa. 759, 831 A.2d 599 (2003). “Challenges to the discretionary
aspects of sentencing are not cognizable under the PCRA.” Commonwealth
v. Fowler, 930 A.2d 586, 593 (Pa.Super. 2007), appeal denied, 596 Pa.
715, 944 A.2d 756 (2008).
In the instant case, Appellant timely filed a pro se PCRA petition on
September 16, 2014, and an amended pro se PCRA petition on January 13,
2015. The PCRA court appointed PCRA counsel, who subsequently filed a
motion to withdraw and Turner/Finley no-merit letter. Appellant
responded to PCRA counsel on August 13, 2015. On September 4, 2015,
the PCRA court issued Rule 907 notice to Appellant. Appellant did not
respond. The PCRA court denied relief and allowed counsel to withdraw on
October 2, 2015. In his amended Rule 1925(b) statement, Appellant, for
the first time, claimed: PCRA counsel was ineffective for failing to request
reinstatement of Appellant’s direct appeal rights nunc pro tunc so Appellant
could challenge the discretionary aspects of his sentence. Appellant did not
raise this specific allegation of ineffectiveness of PCRA counsel in his August
13, 2015 response to counsel’s withdrawal petition or in response to the
PCRA court’s Rule 907 notice. See Pitts, supra. Therefore, Appellant’s
ineffectiveness of PCRA counsel claim is waived. See id.; Ousley, supra.
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Appellant’s remaining arguments relate to his August 29, 2013
judgment of sentence, and it appears Appellant has abandoned these issues
on appeal. Appellant’s sentencing claims are completely undeveloped and
vague, consisting of a single conclusory statement that Appellant did not
waive these issues on appeal, which lacks any cogent nexus between
relevant law and the facts of this case. Thus, Appellant waived his
sentencing issues. See Commonwealth v. Johnson, 604 Pa. 176, 985
A.2d 915 (2009), cert. denied, 562 U.S. 906, 131 S.Ct. 250, 178 L.Ed.2d
165 (2010) (explaining appellant waives issue on appeal where he fails to
present claim with citations to relevant authority or develop issue in
meaningful fashion capable of review).4
To the extent Appellant claims the court relied primarily on Appellant’s
prison tapes when it imposed an excessive sentence, his challenge
implicates the discretionary aspects of sentencing. See Lutes, supra.
Appellant failed to raise this argument at the sentencing hearing or in his
motions to reconsider sentence. Instead, Appellant raised this issue for the
first time on appeal in his May 3, 2016 amended Rule 1925(b) statement.
Therefore, Appellant waived his excessive sentence claim on this ground as
well. See Fowler, supra; Mann, supra.
Moreover, even if Appellant had properly preserved his issues on
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4
Appellant waived his ineffectiveness of counsel claim on this ground also.
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appeal, they would merit no relief and we would affirm based on the PCRA
court opinions. (See PCRA Court Opinions, filed March 15, 2016, at 1-3, and
September 2, 2016, at 1-3) (finding: Appellant did not request direct
appeal; court imposed sentence of five to ten years’ imprisonment after
Appellant violated probation for burglary; burglary is first degree felony,
which carries maximum penalty of twenty years’ imprisonment; including
Appellant’s negotiated sentence of one to two years’ imprisonment,
Appellant’s sentence is still within lawful maximum; Appellant’s Alleyne5
challenge merits no relief because court did not impose mandatory minimum
sentence; court properly considered Appellant’s recorded prison statements
during sentencing hearing because statements were party admissions
pursuant to Pa.R.E. 803(25); there were no genuine issues of fact which
required evidentiary hearing). Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2017
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Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
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Circulated 06/09/2017 09:59 AM
Circulated 06/09/2017 09:59 AM