Commonwealth v. Lellock

• Decision Date: 14 November 2022
• Docket Number: 657 WDA 2021,659 WDA 2021,J-S25036-22
• Parties: COMMONWEALTH OF PENNSYLVANIA Appellee v. ROBERT LELLOCK Appellant COMMONWEALTH OF PENNSYLVANIA Appellee v. ROBERT LELLOCK Appellant
• Court: Pennsylvania Superior Court

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COMMONWEALTH OF PENNSYLVANIA Appellee v. ROBERT LELLOCK Appellant COMMONWEALTH OF PENNSYLVANIA Appellee v. ROBERT LELLOCK Appellant

Nos. 657 WDA 2021, 659 WDA 2021

No. J-S25036-22

Superior Court of Pennsylvania

November 14, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered May 7, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s) CP-02-CR-0013778-2012, CP-02-CR-0003936-2013

BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.

MEMORANDUM

KING J.

Appellant Robert Lellock, appeals from the order entered in the Allegheny County Court of Common Pleas, which dismissed in part his petition filed under the Post Conviction Relief Act ("PCRA").^[1] We affirm.

Appellant worked as a school police officer in Pittsburgh. During the course of his employment, he sexually abused multiple boys. The PCRA court opinion set forth the remaining procedural history of this appeal as follows:

On July 29, 2013, a jury found [Appellant] guilty [of involuntary deviate sexual intercourse ("IDSI") and multiple counts of endangering the welfare of a child ("EWOC"), corruption of minors, and indecent assault at two different docket numbers]. The [court] sentenced Appellant to an aggregate term of incarceration of 32-64 years and found him to be a sexually violent predator. Judgment of sentence was affirmed on appeal, but the Superior Court of Pennsylvania remanded the case for resentencing, finding that the imposition of a mandatory sentence was illegal. [The trial court] resentenced [Appellant] to the same sentence, without the mandatory sentence, on July 21, 2016. This sentence was affirmed on August 16, 2017.

In 2017, appointed counsel filed an amended PCRA petition and in 2018 the Commonwealth conceded a sentencing issue on two counts of [EWOC]. On January 2[8], 2019, just before retiring, [the trial jurist] granted a resentencing hearing on the EWOC [convictions] and denied the rest of the PCRA. The case was reassigned to [the current jurist].

Next, counsel for Appellant filed a motion to reconsider, and Appellant filed a pro se motion for a Grazier^[2] hearing. [The PCRA court] granted both motions and ordered Appellant to refile a PCRA [petition] and raise all issues therein. Appellant complied and the Commonwealth answered. [The PCRA court] reviewed the record, issued a notice of intent to dismiss the non-sentencing related issues, and scheduled a resentence[ing] hearing. Appellant filed motions to amend and to stay, which [the PCRA court] granted. On [August 26], 2020, Appellant filed an amended PCRA [petition]. The Commonwealth responded that claims of ineffective assistance of counsel at claims 1-8 and 10-12 were without merit, and claim 13 of cumulative prejudice was also meritless. Claim 9 is a time credit issue wherein the Commonwealth believes [Appellant] is entitled to three additional days. Appellant had been given credit from 9/12/12-12/18/12, but had not been released from custody until 12/21/12.

[On May 4, 2021, the court resentenced Appellant on some of the counts pursuant to the original trial jurist's 2019 order.] On May 7, 2021, [the PCRA court] dismissed claims 1-8 and 10-13 [and] granted the three-day time credit….

(PCRA Court Opinion, filed 7/28/21, at 2-3) (some capitalization omitted).

On June 1, 2021, Appellant timely filed a pro se notice of appeal from the order denying PCRA relief.^[3] Appellant voluntarily filed a pro se Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal on June 28, 2021.

Appellant now raises seven issues for our review:

The PCRA court abused its discretion when it dismissed without a hearing on Appellant's claim that trial counsel gave ineffective assistance of counsel when he failed to fully develop and argue that the amendments that extended the criminal statute of limitations were illegal and the holding that allowed them [was] erroneously decided.

The PCRA court abused its discretion when it dismissed without a hearing on Appellant's claim that trial counsel and appellate [counsel] gave ineffective assistance of counsel when they failed to properly raise, argue, and brief that the prosecution on twelve of the counts that Appellant was facing at trial [was] time-barred by the criminal statute of limitations.

The PCRA court abused its discretion when it dismissed without a hearing on Appellant's claim that trial counsel gave ineffective assistance of counsel when he failed to raise, argue, and brief this claim of pre-arrest delay.

The PCRA court abused its discretion when it dismissed without a hearing on Appellant's claim that trial counsel gave ineffective assistance of counsel when he failed to properly object, raise, argue, and litigate that several jury instructions were legally deficient when charged to the jury.

The PCRA court abused its discretion when it dismissed without a hearing on Appellant's claim that trial counsel and appellate counsel #2 gave ineffective assistance of counsel when they failed to properly object, raise, argue, litigate, and brief that Appellant was illegally labeled as a sexually violent predator.

The PCRA court abused its discretion when it dismissed without a hearing on Appellant's claim that appellate counsel #3 gave ineffective assistance of counsel when she failed to raise that Appellant being sentenced under [the Sex Offender Registration and Notification Act ("SORNA")] was illegal and that SORNA II cannot apply to Appellant's case.

The PCRA court abused its discretion when it dismissed without a hearing on Appellant's claim that all [counsel] gave ineffective assistance of counsel throughout all phases of Appellant's case.

(Appellant's Brief at 4-5).

"Our standard of review of the 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. Beatty, 207 A.3d 957, 960-61 (Pa.Super. 2019), appeal denied, 655 Pa. 482, 218 A.3d 850 (2019). "[W]e review the court's legal conclusions de novo." Commonwealth v. Prater, 256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied,__ Pa.__, 268 A.3d 386 (2021).

Appellant's first two issues are related, and we address them together. Appellant argues that a two-year statute of limitations applied for twelve of the offenses at issue, the statute of limitations had expired by the time that the Commonwealth brought the charges, and that the trial court should have dismissed the relevant counts. Appellant acknowledges that trial counsel raised the statute of limitations issue in a pretrial motion. Appellant insists, however, that the pretrial motion was inadequate. Additionally, Appellant notes that our legislature amended the relevant statutes of limitations after Appellant's offenses but before the Commonwealth brought the charges. Appellant asserts that the amended version of the statutes should not have applied to his case.

Appellant acknowledges Commonwealth v. Johnson, 520 Pa. 165, 553 A.2d 897 (1989) and Commonwealth v. Harvey, 542 A.2d 1027 (Pa.Super. 1988), holding that when a new limitations period is enacted and the prior period has not yet expired, the longer statute will apply to an action. Nevertheless, Appellant maintains these cases were erroneously decided and "his argument proves that his Fourteenth Amendment and Article 1, Section 9 constitutional rights were violated by the government's arbitrary actions against him and others like him." (Appellant's Brief at 19). Appellant concludes trial counsel was ineffective for filing an inadequate pretrial motion and failing to challenge the amendment of the statute of limitations. We disagree.

"Counsel is presumed to have rendered effective assistance." Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal denied,__ Pa.__, 242 A.3d 908 (2020).

[T]o establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019), appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and quotation marks omitted). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111 (2011).

"The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit[.]" Commonwealth v. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175, 179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994)). "Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004) (quoting Commonwealth v. Geathers, 847 A.2d 730, 733 (Pa.Super. 2004)).

"Once this threshold is met we apply the 'reasonable basis' test to determine whether counsel's chosen course was designed to effectuate his client's interests." Commonwealth v. Kelley, 136 A.3d 1007, 1012 (Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95).

The test for deciding whether c

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