Commonwealth v. Way

Decision Date27 September 2022
Docket Number2316 EDA 2021,J-S27010-22
PartiesCOMMONWEALTH OF PENNSYLVANIA Appellee v. CLIFFORD WAY Appellant
CourtSuperior Court of Pennsylvania

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered November 8, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No CP-51-CR-0708111-2006

BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM

STABILE, J.

Appellant Clifford Way, who is serving a sentence of imprisonment for stabbing and nearly killing his ex-girlfriend, appeals from an order denying his petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. The lone argument in his brief is that trial counsel was ineffective for failing to file post-sentence motions challenging the discretionary aspects of his sentence. We affirm.

On June 2, 2006, Appellant had a verbal confrontation with the victim, an ex-girlfriend, which devolved into a physical altercation. Appellant pulled the victim into his vehicle, where he cut her neck with a knife, stabbed her in her left shoulder, and threatened to kill her. The victim persuaded Appellant to spare her life and take her to Temple University Hospital, where she informed the trauma room staff of her ordeal. The police arrested Appellant outside the hospital.

Following a non-jury trial, the court found Appellant guilty of aggravated assault, kidnapping, terroristic threats, simple assault, possession of an instrument of crime, unlawful restraint, reckless endangerment, and false imprisonment. On May 20, 2009, the court sentenced Appellant to ten to twenty years' imprisonment for both aggravated assault and kidnapping, to be served concurrently, and a consecutive aggregate term of fifteen years' probation for other charges. Appellant's sentence for aggravated assault and kidnapping were above the guidelines range. N.T., 5/20/09, at 5, 13 (guidelines range was seventy-two to ninety months plus or minus twelve months).

Appellant did not file a direct appeal, but on January 21, 2010, Appellant filed a PCRA petition requesting reinstatement of his direct appeal rights. On October 12, 2012, the court granted Appellant's petition and reinstated his appellate rights nunc pro tunc. On November 8, 2012, Appellant filed a notice of appeal. On May 9, 2014, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Way, No. 3152 EDA 2012 (Pa. Super., May 9, 2014) (memorandum). We held, inter alia, that Appellant waived his challenge to the discretionary aspects of his sentence by failing to either raise this issue at sentencing or file post-sentence motions. Id. at 6-7. On October 23, 2014, our Supreme Court denied Appellant's petition for allowance of appeal.

Appellant filed a timely pro se PCRA petition. The court appointed counsel for Appellant, who filed an amended petition alleging that trial counsel was ineffective for failing to file a motion to dismiss under Pa.R.Crim.P. 600 or post-sentence motions challenging the discretionary aspects of sentence. On December 18, 2017, the PCRA court dismissed Appellant's petition without holding a hearing.

Appellant filed an appeal to this Court, which vacated the order of dismissal and remanded for further proceedings on Appellant's Rule 600 claim, including an evidentiary hearing. Commonwealth v. Way, 239 EDA 2018 (Pa. Super., Feb. 28, 2019). Due to our remand on the Rule 600 issue, we held that it was unnecessary to examine Appellant's claim of ineffectiveness relating to his sentence. Id. at 8.

On February 24, 2020, the PCRA court again dismissed Appellant's petition. On March 6, 2020, Appellant appealed to this Court. On June 14, 2021, we vacated the order of dismissal and remanded this case. We observed that the PCRA court failed to hold a hearing in accordance with our decision on February 28, 2019, and we directed the PCRA court to hold an evidentiary hearing on remand.

On November 8, 2021, the PCRA court convened a hearing relating to Appellant's amended petition. Appellant stipulated, under oath, that he was abandoning his Rule 600 claim because it would have been unsuccessful. N.T., 11/8/21, at 4-8. Appellant continued to pursue his claim of ineffectiveness concerning his sentence, id. at 8, but the court denied this claim without taking evidence. Id. at 12. Appellant filed a timely appeal to this Court, and both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

Appellant raises a single issue in this appeal: "Whether the court erred in not granting relief on the PCRA petition alleging [t]rial [c]ounsel was ineffective for failing to file a post sentence motion to reconsider the sentence?" Appellant's Brief at 7.

When reviewing the propriety of an order pertaining to PCRA relief,

we consider the record in the light most favorable to the prevailing party at the PCRA level. This Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. We grant great deference to the PCRA court's findings that are supported in the record and will not disturb them unless they have no support in the certified record. However, we afford no such deference to the post-conviction court's legal conclusions. We thus apply a de novo standard of review to the PCRA [c]ourt's legal conclusions.

Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018).

A petitioner who alleges ineffective assistance
will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the "[i]neffective 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." 42 Pa.C.S.[A.] § 9543(a)(2)(ii). "Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him." Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014). Prejudice, in the context of ineffective assistance claims, requires proof of a reasonable probability that but for counsel's error, the outcome of the proceeding would have been different. Commonwealth v. Kimball, 724 A.2d 326, 331 (Pa. 1999). The petitioner's failure to satisfy any of the three prongs requires rejection of his ineffective assistance claim. Commonwealth v. Ly, 980 A.2d 61, 74 (Pa. 2009).

Appellant maintains that trial counsel was ineffective for failing to file post-sentence motions. The PCRA court properly rejected this claim.

The defendant has the option of filing post-sentence motions within ten days after imposition of sentence. Pa.R.Crim.P. 720(A)(1). Furthermore, "a trial court may exercise its discretion and permit a post-sentence motion to be filed nunc pro tunc within thirty days after the imposition of sentence." Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 724, n. 1 (Pa. Super. 2013) (emphasis added).

An important distinction exists between ineffectiveness claims due to alleged failure to file post-sentence motions and ineffectiveness claims due to alleged failure to file a direct appeal. When counsel fails without justification to file a direct appeal, counsel is deemed per se ineffective; the petitioner need not prove that he suffered prejudice as a result of counsel's inaction. Commonwealth v. Lantzy, 736 A.2d 564, 571 (Pa. 1999). The failure to file post-sentence motions, however, "does not fall within the limited ambit of situations where a defendant alleging ineffective assistance of counsel need not prove prejudice to obtain relief." Commonwealth v. Reaves, 923 A.2d 1119, 1132 (Pa.2007). To obtain relief based upon the failure to file a post-sentence motion, a defendant must meet the traditional three-part Pierce test for establishing ineffective assistance of counsel (arguable merit, lack of reasonable excuse for inaction, prejudice). Id. at 1128-30.

Appellant contends that the court did not sufficiently state its reasons for imposing an above-guidelines sentence on the record, and therefore counsel should have raised this objection in post-sentence motions.[1] We disagree. The court explicitly stated its reasons for imposing an above-guidelines sentence and appropriately considered the factors in 42 Pa.C.S.A. § 9721(b) during the sentencing hearing. N.T. 5/20/09, 12-13. Thus, Appellant's objection to counsel's failure to file post-sentence motions lacks arguable merit.

"Sentencing is a matter vested in the sound discretion of the trial court[,] and the lower court's judgment of sentence will not be disturbed by an appellate court absent an abuse of discretion." Commonwealth v. Clever, 576 A.2d 1108, 1110 (Pa. Super. 1990). "An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality prejudice, bias[,] or ill-will." Commonwealth v. Burkholder, 719 A.2d 346, 350 (Pa. Super. 1998). "When reviewing sentencing matters," this Court "accord[s] the sentencing court...

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