Commonwealth of Pa. v. Ousley

• Decision Date: 13 May 2011
• Docket Number: No. 309 WDA 2010,309 WDA 2010
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. ROBERT OUSLEY, Appellant
• Court: Pennsylvania Superior Court

2011 PA Super 103

COMMONWEALTH OF PENNSYLVANIA, Appellee

v.ROBERT OUSLEY, Appellant

No. 309 WDA 2010

SUPERIOR COURT OF PENNSYLVANIA

Filed: May 13, 2011

Appeal from the PCRA Order January 6, 2010

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0011513-2008-CP-020CR-0011513-2008

BEFORE: STEVENS, P.J., LAZARUS and PLATT^*, JJ.

OPINION BY STEVENS, P.J.:

This is an appeal from the order entered in the Court of Common Pleas of Allegheny County denying Appellant's petition filed under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Appellant contends (1) his conviction for aggravated assault merged with his conviction for robbery for sentencing purposes; (2) guilty plea/sentencing counsel was ineffective in failing to consult with Appellant regarding the filing of a post-sentence motion and/or direct appeal in order to raise Appellant's legality of sentencing claim; (3) PCRA counsel was ineffective in failing to raise in his no-merit letter Appellant's first and second issues; and (4) the PCRA court's notice of its intention to dismiss pursuant to Pa.R.Crim.P. 907 was inadequate. We affirm.

The relevant facts and procedural history are as follows:

This matter arises out of [Appellant's] arrest as a result of a robbery which occurred at the Dollar General Store in Kennedy Township on May 14, 2008. As a result of his arrest, [Appellant] was charged with one Count of Robbery-Serious Bodily Injury in violation of 18 Pa.C.S.A. § 3701; Aggravated Assault in violation of 18 Pa.C.S.A. § 2702; Carrying a Firearm Without a License in violation of 18 Pa.C.S.A. § 6106; Unlawful Restraint in violation of 18 Pa.C.S.A. § 2902; and Retail Theft in violation of 18 Pa.C.S.A. § 3929. On March 25, 2009, [Appellant] entered into a plea agreement related to Robbery, Aggravated Assault, and Unlawful Restraint.

[Specifically,] [o]n March 25, 2009, [Appellant] entered into a negotiated plea agreement wherein the Commonwealth agreed to withdraw the charge of Carrying a Firearm Without a License in violation of 18 Pa.C.S.A. § 6106 and to further waive the imposition of a mandatory sentence of five (5) years pursuant to 42 Pa.C.S.A. § 9712(a) with [Appellant] entering a guilty plea to the remaining charges. Further, [Appellant] and the Commonwealth agreed to a period of incarceration of not less than three (3) or more than six (6) years. In addition, [Appellant] agreed to make restitution in the amount of $3,500.00 to the Dollar General Store. A colloquy was conducted that established that [Appellant] was entering a knowing, intelligent and voluntary plea. [Appellant] also acknowledged that he had read, understood and signed the Guilty Plea Explanation of Defendant's Rights Form.

As it pertained to the summary of facts presented at the time of the plea, the Commonwealth established that on May 14, 2008, the Kennedy Township Police were dispatched to the Dollar General Store on Pine Hollow Road for a reported robbery. The victim in the case, Michelle Heimman, was bleeding from a wound to the head. The victim reported that she was struck with a gun over the head by a black male carrying a firearm. The gunman had forced his way into the office and stole an estimated $3,000.00 to $4,000.00. The gunman then demanded that the victim open the safe. When the victim advised the gunman that the safe was near the register, the gunman threatened the victim stating that "if she was lying he was going to shoot her." After the money was obtained the gunman then produced a roll of duct tape, bound the victim by her ankles and knees and placed a piece of tape over her mouth. Forensic testing of the wrapping from the duct tape used by the gunmandetermined that it contained a fingerprint of [Appellant] and that a representative of the Allegheny County Crime Lab found th[e] [fingerprint] "inside the sticky adhesive portion of the wrapper." A warrant was obtained by the detectives for [Appellant's] arrest [and the detectives] later questioned [Appellant.] [Appellant] initially admitted that he committed the robbery because he owed somebody money, but then shortly thereafter recanted the admission.

Subsequent to the summary of evidence, no additions or corrections to the summary were made or offered on behalf [of Appellant]. [Appellant] further acknowledged that he was pleading guilty because he was guilty of the charges. In addition, the Court asked [Appellant] why he would engage in such conduct when he did not appear to have a history of violent criminal behavior, [Appellant] responded, "It was a stupid act."

[Appellant's] counsel had negotiated the withdrawal of the felony charge of Carrying a Firearm without a License and the waiver of that mandatory five year sentence pursuant to 42 Pa.C.S.A. § 9712(a). Further, the Commonwealth agreed to a period of incarceration of three to six years on the charge of robbery. As it pertained to a period of probation, the Court specifically asked if there was an agreed upon period of probation and [the] Assistant District Attorney stated, "That's up to you, Your Honor. Whatever might be appropriate in this case." Neither [Appellant] nor his counsel disagreed or corrected the statement regarding a period of probation being left to the discretion of the Court. After informing [Appellant] that if found guilty and absent a plea agreement that he faced a possible sentence of ten to twenty years, the plea agreement regarding the period of incarceration of three to six years [for robbery] was accepted and [Appellant] was also given [a consecutive period of] five years' probation on the felony charge of aggravated assault. [Appellant] was also ordered to make restitution in the amount of $3,500.00.

PCRA Court Opinion filed 1/18/11 at 3-5.

Following sentencing, Appellant did not file a timely direct appeal;¹ however, on July 16, 2009, Appellant filed a timely pro se PCRA petition.² The trial court appointed new counsel, Allan R. Patterson, III, Esquire, who, instead of filing an amended PCRA petition, filed a petition to withdraw as counsel and no-merit letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). In his no-merit letter, Attorney Patterson presented issues related to the validity of the arrest warrant, the sufficiency of the fingerprint evidence, whether Appellant's plea was unlawfully induced, and whether guilty plea counsel was ineffective in failing to challenge the arrest warrant or fingerprint evidence.

On September 2, 2009, Appellant filed a pro se response to Attorney Patterson's petition to withdraw. Specifically, Appellant contended Attorney Patterson's no-merit letter was defective since it did not adequately present the issue of whether guilty plea counsel was ineffective in failing to subpoena a witness, introduce evidence demonstrating Appellant's whereabouts, and introduce evidence that another person committed the crimes. Furthermore, he contended Attorney Patterson was ineffective in failing to present the issue of whether guilty plea counsel unlawfully induced Appellant to plead guilty and whether guilty plea counsel was ineffective in failing to file a petition to withdraw Appellant's guilty plea.

By order filed on September 9, 2009, the PCRA court granted Attorney Patterson's petition to withdraw and provided notice to Appellant of its intention to dismiss pursuant to Pa.R.Crim.P. 907. On September 25, 2009, Appellant filed a pro se response alleging guilty plea counsel was ineffective in failing to consult with Appellant, and Attorney Patterson was ineffective in failing to present this issue. He further contended Attorney Patterson was ineffective in stating Appellant did not assert his innocence, failing to adequately present Appellant's alibi defense, and failing to adequately present the issue of whether guilty plea counsel was ineffective in not challenging the warrant and fingerprint evidence.

By order filed on January 7, 2010, the PCRA court dismissed Appellant's timely PCRA petition. On February 4, 2010, Appellant filed a timely pro se notice of appeal to this Court from the PCRA court's January 7, 2010 order, which dismissed Appellant's PCRA petition.³ By order filed on March 23, 2010, the PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) statement, and the PCRA court appointed new counsel, Charles R. Pass, III, Esquire, for purposes of appeal. On March 31, 2010, Attorney Pass filed a timely Pa.R.A.P. 1925(b) statement on behalf of Appellant. The PCRA court filed a responsive Pa.R.A.P. 1925(a) opinion.

Our standard of review from the grant or denial of post-conviction relief is limited to examining whether the PCRA court's determination is supported by the evidence of record and whether it is free of legal error. Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516, 520 (1997). We will not disturb findings that are supported by the record. Commonwealth v. Yager, 685 A.2d 1000, 1003 (Pa.Super. 1996) (en banc).

Appellant's first contention is that his conviction for aggravated assault should have merged with his conviction for robbery for sentencing purposes. A claim that crimes should have merged for sentencing purposes presents a challenge to the legality of a sentence. See Commonwealth v. Rhoades, 8 A.3d 912 (Pa.Super. 2010). Here, Appellant failed to present his legality of sentencing claim in his PCRA petition, or otherwise in the PCRA court below, and raised the issue for the first time on appeal. It is well-settled that "issues not raised in a PCRA petition cannot be considered on appeal." Commonwealth v. Lauro, 819 A.2d 100, 104 (Pa.Super. 2003) (citing Commonwealth v. Wallace, 555 Pa. 397, 724 A.2d 916, 921 n. 5 (1999)).

Even if reviewable, Appellant's merger claim is without merit.

In reviewing an illegal sentence claim, '[t]he issue...is a question of law and, as such, our scope of review is plenary and our standard of review is de novo.' Section 9765 of

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