Commonwealth v. Presley

• Decision Date: 17 July 2018
• Docket Number: No. 927 EDA 2017,927 EDA 2017
• Parties: COMMONWEALTH of Pennsylvania v. Lynn PRESLEY, Appellant
• Court: Pennsylvania Superior Court

193 A.3d 436

COMMONWEALTH of Pennsylvania

v.Lynn PRESLEY, Appellant

No. 927 EDA 2017

Superior Court of Pennsylvania.

Submitted April 23, 2018

Filed July 17, 2018

Peter A. Levin, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, and Benjamin J. Halle, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS,^* P.J.E.

OPINION BY BOWES, J.:

Lynn Presley appeals from the order that dismissed his petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.

This Court offered the following summary of the case history in deciding Appellant's direct appeal.

This matter arises out of Appellant's involvement in two separate criminal cases in Philadelphia County. At CP-51-CR-1113641-1998, Appellant pleaded guilty to robbery, terroristic threats, simple assault, and contempt of court. At CP-51-CR-1113831-1998, he pleaded guilty to theft by unlawful taking, simple assault, and contempt of court. On January 7, 2000, the Honorable Tama Myers Clark sentenced Appellant to an aggregate term of eleven and one-half months to twenty-three months of incarceration followed by five years of reporting probation. Appellant was granted immediate parole.

Due to technical violations of Appellant's probation requirements (failing to report to his probation officer and not undertaking anger management therapy), Judge Myers Clark revoked his probation at a violation of probation ("VOP") hearing on March 30, 2001. Notwithstanding the Commonwealth's claim that Appellant failed to cooperate while on probation, Judge Myers Clark resentenced him to the same term of eleven and one-half months to twenty-three months of incarceration followed by five years of reporting probation.

Based on an undercover police investigation from October 8, 2004 until December 21, 2004, Appellant was charged in Montgomery County on March 1, 2005, with multiple theft crimes (CR-103-05). Six months later at a bench trial on September 13, 2005, the Honorable Felice Stack of Philadelphia County found Appellant guilty of various drug charges and conspiracy (MC-0411-1574-2005). Due to Appellant's intervening criminal conduct, Judge Myers Clark held a VOP hearing on November 16, 2005, where she heard testimony regarding the Montgomery County charges and the Philadelphia County drug offenses. N.T., 11/16/05, 24-45. Noting this was Appellant's second VOP hearing, Judge Myers Clark revoked Appellant's probation and sentenced him to an aggregate term of twelve years to twenty-four years of incarceration, plus a $55,000.00 fine.

Appellant filed a timely post-sentence motion for reconsideration on November 28, 2005. Judge Myers Clark granted the motion and vacated the November 16, 2005 sentence. Following numerous continuances requested by Appellant in order to [ultimately unsuccessfully] negotiate a deal with the Montgomery County District Attorney, Judge Myers Clark conducted a hearing on December 6, 2006, to reconsider Appellant's revocation of probation sentence. At the reconsideration hearing, the Commonwealth explained that it would nolle prosse Appellant's drug convictions "in favor of judicial economy" if Judge Myers Clark decided to re-impose the November 16, 2005 sentence. After hearing argument from counsel and Appellant's statement, Judge Myers Clark re-imposed the November 16, 2005 sentence of twelve years to twenty-four years of incarceration plus a fine. On the same day, the Commonwealth nolle prossed Appellant's drug convictions. Appellant did not file post-sentence motions or a direct appeal.

Eight months later, on August 9, 2007, Appellant filed a petition pursuant to the [PCRA] seeking reinstatement of his post-sentence and direct appeal rights nunc pro tunc because counsel failed to file post-sentence motions or a direct appeal from the December 6, 2006 sentence. Appointed counsel filed an amended petition on July 7, 2008, and a supplement to the amended petition on October 15, 2008. The PCRA court[, Judge Denis P. Cohen,] reinstated Appellant's direct appeal rights nunc pro tunc on February 4, 2011.

Commonwealth v. Presley , 48 A.3d 482 (Pa.Super. 2012) (unpublished memorandum) (citations and footnotes omitted), appeal denied , 616 Pa. 668, 51 A.3d 838 (2012).

In his subsequent nunc pro tunc direct appeal, Appellant sought review of the discretionary aspects of his sentence, contending that it was harsh and excessive and that Judge Meyers Clark did not consider any of the relevant sentencing factors or explain the reasons for the sentence. Id. (unpublished memorandum at 4-5) (citing Appellant's brief). Judge Cohen agreed that resentencing was warranted because the VOP court failed "to give any reasons for imposing the statutory maximum sentence after revoking probation." Trial Court Opinion, 6/30/11, at 11 (citing Commonwealth v. Parlante , 823 A.2d 927 (Pa.Super. 2003) ). The trial court "respectfully recommend[ed] that [Appellant's] sentence be vacated and the matter remanded for imposition of a new sentence." Id. at 8.

This Court declined to grant the relief urged by the trial court, holding instead that Appellant failed to preserve the claims. Specifically, we found that the issues were not initially raised with the VOP court at the December 6, 2006 resentencing hearing or in a post-sentence motion. Presley , supra (unpublished memorandum at 7). Therefore, this Court affirmed Appellant's judgment of sentence, but indicated that its ruling was "without prejudice to his rights under the PCRA to allege trial counsel's ineffectiveness in failing to file a post-sentence motion." Id. (unpublished memorandum at 8).

Appellant responded by filing the PCRA petition that is the subject of the instant appeal. In his petition, as amended by his counsel who was appointed pursuant to Pa.R.Crim.P. 904(C), Appellant claimed that his VOP counsel was ineffective in failing to file a motion for reconsideration of sentence. Amended PCRA Petition, 7/21/16, at 9-14. The PCRA court issued notice of its intent to dismiss Appellant's petition without a hearing. Appellant filed no response, and the PCRA court dismissed the petition by order of March 7, 2017.¹

On March 28, 2017, an order directing Appellant to file a concise statement of errors complained of on appeal within twenty-one days was filed and served. Counsel did not timely comply by April 18, 2017. On May 4, 2017, counsel filed a motion for extension of time to file the statement, averring therein that he was unable to file the statement because he had been out of the country. Motion for Extension, 5/4/17, at ¶ 2. The PCRA court did not rule upon the motion. Rather, counsel filed a late statement, without leave to do so, on May 11, 2017. In its subsequent Rule 1925(a) opinion, the PCRA court suggested that waiver should result from Appellant's failure to timely comply. However, it addressed the merits of Appellant's claim of VOP counsel's ineffectiveness "[i]n the interest of thoroughness." PCRA Court Opinion, 6/27/17, at 6 n.17.

Appellant presents the following questions for this Court's review.

I. Whether the PCRA court erred in ruling the issues in this appeal were waived for failure to timely file under Pa.R.A.P. 1925(b).

II. Whether the [PCRA] court erred in denying the Appellant's PCRA petition without an evidentiary hearing on the issues raised in the amended PCRA petition regarding violation of parole (VOP) counsel's ineffectiveness.

III. Whether the court erred in not granting relief on the PCRA petition alleging counsel was ineffective.

Appellant's brief at 8 (unnecessary capitalization omitted).

We first consider whether Appellant has waived review of his claim by failing to timely file a Rule 1925(b) statement as ordered by the PCRA court. By the express terms of Rule 1925, all issues not properly raised in a court-ordered concise statement are waived. Pa.R.A.P. 1925(b)(4)(vii).

Rule 1925 was amended in 2007 to add provisions for remand in certain circumstances. Subsection (c)(3) now provides: "If an appellant in a criminal case was ordered to file a Statement and failed to do so, such that the appellate court is convinced that counsel has been per se ineffective, the appellate court shall remand for the filing of a Statement nunc pro tunc and for the preparation and filing of an opinion by the judge." Pa.R.A.P. 1925(c)(3). An attorney's failure to file and serve a timely 1925(b) statement in a criminal case "is a failure to perfect the appeal, it is presumptively prejudicial and ‘clear’ ineffectiveness." Pa.R.A.P. 1925, Note (citing, inter alia , Commonwealth v. West , 883 A.2d 654, 657 (Pa.Super. 2005) ). Accordingly, in criminal cases, remand, not waiver, results from the late filing of a statement, unless the trial court addressed the issues raised in a late-filed statement.² In those circumstances, no remand is necessary, and this Court may address the merits of issues. See Commonwealth v. Thompson , 39 A.3d 335, 340 (Pa.Super. 2012).

"The purpose of the PCRA is to provide an action for ‘persons convicted of crimes they did not commit and persons serving illegal sentences’ to obtain relief." Commonwealth v. Haag , 570 Pa. 289, 809 A.2d 271, 284 (2002) (quoting 42 Pa.C.S. § 9542 ). However, "[t]he PCRA system is not part of the criminal proceeding itself, but is, in fact, civil in nature." Id. Consequently, we must decide whether the instant appeal from an order denying PCRA relief is "a criminal case" or a "civil case" for purposes of subsection (c) of the Rule.

While both our Supreme Court and this Court have in published decisions opined about the applicability of the subsection (c)(3) criminal-case remand procedure in a PCRA appeal, the issue was not actually necessary to the holding in either case. In Commonwealth v. Hill , 609 Pa. 410, 16 A.3d 484 (2011), our Supreme Court suggested that, because of the civil nature of PCRA proceedings, the remand procedure of subsection (c)(3) should not apply when it is PCRA counsel...