Commonwealth v. Whitmore, 2004 PA Super 365 (PA 9/20/2004)

• Decision Date: 20 September 2004
• Docket Number: No. 3424 EDA 2003.,3424 EDA 2003.
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. RAHEEM WHITMORE, Appellant.
• Court: Pennsylvania Supreme Court

Page 1

2004 PA Super 365

COMMONWEALTH OF PENNSYLVANIA, Appellee v. RAHEEM WHITMORE, Appellant.

No. 3424 EDA 2003.

Superior Court of Pennsylvania.

Petition for Reargument Filed October 4, 2004.

Filed: September 20, 2004.

Petition for Reargument Denied November 29, 2004.

Appeal from the PCRA Order entered October 30, 2003, Court of Common Pleas, Philadelphia County, Criminal Division at No. 9903-1100 1/1.

Before: BENDER, BOWES, and JOHNSON, JJ.

OPINION BY JOHNSON, J.

¶ 1 Raheem Whitmore appeals from the order dismissing his Post Conviction Relief Act (PCRA) petition. See 42 Pa.C.S. §§ 9541-46. Whitmore avers that the PCRA court erred in finding that appellate counsel was not ineffective for failing to raise a substantial question in challenging the sentence on appeal. Whitmore also contends that the PCRA court erred in finding that trial and appellate counsel were not ineffective in failing to file a motion to reconsider his sentence and a motion seeking recusal by the trial judge from presiding over his sentencing proceedings. Upon review, we conclude that the PCRA court committed reversible error. Accordingly, we reverse.

¶ 2 On March 29, 2000, Whitmore was convicted of Possession of a Controlled Substance and Possession of a Controlled Substance with the Intent to Deliver. See 35 P.S. §§ 780-113(a)(16), (30) (respectively). The Pennsylvania Sentencing Guidelines suggested a standard range minimum sentence of twenty-seven to forty months' incarceration, with the aggravated minimum range being six months more and the mitigated minimum range being six months less than the standard minimum range. See Notes of Testimony (N.T.), 4/5/00, at 8. Nevertheless, the trial judge, the Honorable Eugene Maier, sentenced Whitmore to an aggregate sentence of ten to twenty years' imprisonment applying the statutory maximum under 35 P.S. § 780-115(a).

¶ 3 Whitmore appealed to this Court challenging his judgment of sentence asserting, inter alia, that Judge Maier erred in sentencing him above the aggravated range of the sentencing guidelines by double-counting his prior conviction, a factor already included in his prior record score, and failed to give adequate reasons for the sentence imposed. See Commonwealth v. Whitmore, 782 A.2d 1061 (Pa. Super. 2001) (unpublished memorandum). On July 26, 2001, we affirmed his judgment of sentence. See id. Whitmore filed a petition for allowance of appeal to our Supreme Court, which denied Whitmore's petition on January 8, 2002. See Commonwealth v. Whitmore, 793 A.2d 907 (Pa. 2002) (Table).

¶ 4 Whitmore filed a timely PCRA petition on June 28, 2002. The PCRA court appointed private counsel, Attorney Emily Cherniack, to assist Whitmore during the PCRA stage of his proceedings. On April 22, 2003, Attorney Cherniack filed an amended PCRA petition. The Commonwealth filed a motion to dismiss. The PCRA court issued notice pursuant to Pa.R.Crim.P. 907 of its intention to dismiss Whitmore's amended PCRA petition without a hearing. On October 30, 2003, the PCRA court issued an order formally dismissing Whitmore's amended PCRA petition while preserving his in forma pauperis status. Attorney Cherniack then filed a timely notice of appeal on Whitmore's behalf and presents the following questions for our consideration:

A. Whether appellate counsel was ineffective for failing to properly raise a substantial issue as to the appropriateness of sentence including that the trial court improperly double counted his criminal history and prior record score in the 1925(b) statement to the trial court?

B. Whether trial counsel and appellate counsel were ineffective for failing to file a motion to reconsider sentence and recusal of the sentencing court where the trial court indicated that "It sounds like Mr. Whitmore should go to jail for about 50 years, quite frankly"? [sic]

Brief for Appellant at 5.

¶ 5 In reviewing the trial court's denial of PCRA relief, we must determine "if [the trial court's] findings are supported by the record and its [decision] is free of legal error." Commonwealth v. Watson, 835 A.2d 786, 795 (Pa. Super. 2003). "The burden of establishing counsel's ineffectiveness is on the appellant because counsel's stewardship . . . is presumptively effective." Commonwealth v. Wilson, 672 A.2d 293, 298 (Pa. 1996).

[T]o prevail on a claim alleging counsel's ineffectiveness under the PCRA, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without any reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness, i.e. there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different.

Commonwealth v. Lauro, 819 A.2d 100, 105-06 (Pa. Super. 2003).

¶ 6 In support of his first question, Whitmore argues that "the trial court double counted [his] prior record score and improperly omitted its reasons for its sentence on the record." Brief for Appellant at 12. The PCRA court explained that these claims have been previously litigated. Opinion, 12/1/03 at 4-5. We disagree. For purposes of the PCRA, a claim has been previously litigated "if, inter alia, the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." See Commonwealth v. Lambert, 797 A.2d 232, 239 (Pa. 2001) (citation omitted); see also 42 Pa.C.S § 9544(a). Under the PCRA, a "previously litigated" claim is not cognizable. See 42 Pa.C.S. § 9543(a)(3).

¶ 7 On Whitmore's direct appeal to this Court, he asserted both of these claims. However, in our unpublished memorandum disposing of Whitmore's direct appeal, we stated with respect to both claims, "Appellant's 2119(f) statement is inadequate to raise a substantial question because it is dependant on a waived claim and it fails to articulate facts of record upon which the claim is predicated." See Whitmore, 782 A.2d 1061 (Pa. Super. 2001) (unpublished memorandum). Therefore, we did not address the merits and as such, Whitmore's claims do not qualify as being previously litigated for purposes of the PCRA. See Commonwealth v. Hanes, 579 A.2d 920, 924 (Pa. Super. 1990) ("We agree that the issue is cognizable under the PCRA. Our disposition in the prior appeal did not turn on the merits of the claim; therefore, it has not been previously litigated...."); Commonwealth v. Perlman, 572 A.2d 2, 4 (Pa. Super. 1990) (observing that where waiver occurs on direct appeal, the issue is still cognizable under the PCRA if the issue is raised in the context of an ineffective assistance of counsel claim). Furthermore, a claim that counsel was ineffective for failing to perfect a challenge to the discretionary aspects of sentencing is cognizable under the PCRA. See Commonwealth v. Hernandez, 755 A.2d 1, 6 (Pa. Super. 2000) (observing that where an appellant seeks to raise a discretionary sentencing challenge on appeal, "counsel's failure to perfect the appeal denied the accused the assistance of competent counsel" guaranteed by the United States and Pennsylvania Constitutions); see also Watson, 835 A.2d at 801 ("[A] claim regarding the discretionary aspects of [] sentence, raised in the context of an ineffectiveness claim, would be cognizable under the PCRA.").

¶ 8 Neither of Whitmore's challenges asserts that his sentence was illegal. Rather, his claims challenge the discretionary aspects of sentencing and whether appellate counsel was ineffective in properly presenting those claims on direct appeal. See Commonwealth v. Rodda, 723 A.2d 212, 213 (Pa. Super. 1999) ("Appellate review of sentencing . . . is discretionary as to all aspects of sentencing except legality of the sentence.). "[I]t is axiomatic that counsel will not be considered ineffective for failing to pursue meritless claims." Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999). Accordingly, we examine the merits of Whitmore's allegations.

¶ 9 It is well-settled that only discretionary sentencing challenges which present a substantial question fall within the scope of appellate review. See Commonwealth v. Mouzon, 812 A.2d 617, 626 (Pa. 2002). A claim that the sentencing court failed to state adequate reasons on the record for the sentence imposed presents a substantial question. See Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa. Super. 2000). Additionally, an assertion that the sentencing judge in imposing sentence relied on factors already included in the defendant's prior record score raises a substantial question. Id. at 732. Thus, Whitmore's claims have arguable merit. Moreover, we need not remand for hearing as appellate counsel's failure to perfect on appeal a discretionary sentencing claim which has arguable merit is without any reasonable basis designed to effectuate his client's interest. Cf. Hernandez, 755 A.2d at 12 (observing that counsel's failure to preserve a discretionary sentencing challenge for direct appeal lacks a reasonable basis to effectuate appellant's interest). Consequently, our only inquiry is to determine whether Whitmore's claims rise to the level of requisite prejudice to afford him relief.

¶ 10 To establish prejudice under the PCRA, an appellant must demonstrate that "but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different." Lauro, 819 A.2d at 106. In support of first question, Whitmore argues that "the trial court double counted [his] prior record score and improperly omitted its reasons for its sentence on the record." Brief for Appellant at 12. Whitmore failed to include his omitted reasons challenge in the statement of the questions presented. Accordingly, we deem this claim waived. See Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002) ("Issues not presented in the Statement of Questions Involved portion of a brief will not be...