Commonwealth v. Bradley

COMMONWEALTH OF PENNSYLVANIA Appellee v. JAMES BRADLEY Appellant

J-S19017-15

No. 1828 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

MAY 1, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order May 16, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012564-2007

BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:

James Bradley appeals from an order dismissing his petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. We affirm.

A jury found Bradley guilty of possession with intent to deliver 6.9 grams of crack cocaine ("PWID").¹ On April 30, 2009, the trial court sentenced Bradley to 5-10 years' imprisonment.² Bradley filed timely post-sentence motions, which the trial court denied, followed by a timely direct appeal and timely opening and supplemental Pa.R.A.P. 1925(b) statements.On direct appeal, Bradley argued, inter alia, that the trial court erroneously applied the Sentencing Guidelines Youth/School Enhancement, 204 Pa.Code 303.10(b), at sentencing, and erroneously considered impermissible factors at sentencing. On August 23, 2011, this Court affirmed Bradley's judgment of sentence. On July 27, 2011, the Pennsylvania Supreme Court denied Bradley's petition for allowance of appeal.

On March 7, 2012, Bradley filed a timely PCRA petition. The court appointed PCRA counsel, who filed a Turner/Finley³ letter on February 25, 2014 and a motion to withdraw as counsel on February 26, 2014. On March 20, 2014, the PCRA court filed a notice of intent to dismiss Bradley's PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. On March 31, 2014, the PCRA court granted PCRA counsel leave to withdraw. On May 16, 2014, the PCRA court dismissed Bradley's petition.

Bradley filed a timely notice of appeal to this Court. On June 25, 2014, the PCRA court ordered Bradley to file a Pa.R.A.P. 1925(b) statement within 21 days. On August 4, 2014, Bradley filed an untimely Pa.R.A.P. 1925(b) statement pro se.

Bradley raises the following issues in his appellate brief, which we paraphrase and re-order for the sake of clarity: (1) ineffective assistance of counsel for failure to prepare Bradley or other witnesses for trial; (2)ineffective assistance of counsel for failure to explain that Bradley could receive a lengthier sentence if he elected to have a jury trial; (3) ineffective assistance for failing to challenge the court's improper calculation of Bradley's prior record score; (4) ineffective assistance of counsel for failure to object to improper calculation of Bradley's prior record score at sentencing; (5) ineffective assistance of PCRA counsel for failure to allege ineffective assistance of trial counsel; and (6) an error of law by the trial court by imposing a mandatory minimum sentence based on facts that were not proved to the jury beyond a reasonable doubt.

Our standard and scope of review are well-settled:

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.

* * *

The Turner/Finley decisions provide the manner for postconviction counsel to withdraw from representation. The holdings of those cases mandate an independent review of the record by competent counsel before a PCRA court or appellate court can authorize an attorney's withdrawal. The necessary independent review requires counsel to file a "no-

merit" letter detailing the nature and extent of his review and list each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, see Turner, supra, then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit....

[T]his Court [has] imposed additional requirements on counsel that closely track the procedure for withdrawing on direct appeal.... [C]ounsel is required to contemporaneously serve upon his [or her] client his [or her] no-merit letter and application to withdraw along with a statement that if the court granted counsel's withdrawal request, the client may proceed pro se or with a privately retained attorney....

Commonwealth v. Rykard, 55 A.3d 1177, 1183-84 (Pa.Super.2012) (some citations and footnote omitted).

Our review of the record confirms that counsel substantially complied with the Turner/Finley procedural requirements to withdraw. Specifically, counsel filed a detailed 11-page letter explaining why she believed Bradley's claims lacked merit. She sent this letter to Bradley and sent him her petition to withdraw the following day. She informed Bradley of his right to retain private counsel or proceed pro se. Bradley did not file a response. Accordingly, we will proceed with our independent review of the questions presented to determine if counsel correctly concluded that the issues raised had no merit.

Bradley's first two claims both allege ineffective assistance of counsel prior to and/or during trial - specifically, ineffectiveness for failure to prepare Bradley or other witnesses for trial and ineffectiveness for failure to explain that Bradley could receive a lengthier sentence if he elected to have a jury trial. To obtain relief on a claim of ineffective assistance of counsel, the PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Specifically, the petitioner must establish that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa.1987). Counsel is presumed effective. Charleston, 94 A.3d at 1019. A court need not analyze the elements of an ineffectiveness claim in any particular order of priority; if a claim fails any necessary element of the Strickland test, the court may proceed to that element first. Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa.1998). Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones, 912 A.2d 268, 278 (Pa.2006).

Bradley has waived his first two arguments by failing to file a timely Pa.R.A.P. 1925(b) statement. An appellant must file his statement of matters complained of on appeal within the time specified in an order tosubmit a Pa.R.A.P. 1925(b) statement.⁴ The court's order docketed June 25, 2014 specifically directed Bradley to file his Pa.R.A.P. 1925(b) statement within 21 days, or by July 16, 2014. The docket further states that the Clerk of Court served this order on Bradley via first class mail on June 25, 2014. Bradley filed his Pa.R.A.P. 1925(b) statement on August 4, 2014, 19 days late.

In general, issues raised in an untimely Pa.R.A.P. 1925(b) statement are waived. Commonwealth v. Castillo, 888 A.2d 775, 776 (Pa.2005). But when a criminal defendant is represented by counsel, counsel's failure to file a timely Pa.R.A.P. 1925(b) statement constitutes ineffective assistance per se. Commonwealth v. Thompson, 39 A.3d 335, 340, n.11 (Pa.Super.2012). The remedy for such ineffectiveness is remand to the trial court, either for the filing of a Rule 1925(b) statement nunc pro tunc or the filing of a Rule 1925(a) opinion addressing the issues raised in an untimely 1925(b) statement. Pa.R.A.P. 1925(c)(3); Thompson, supra.

Pa.R.A.P. 1925 makes no such allowance when (as here) the defendant represents himself on appeal pro se. In general, a pro se defendant's failure to file a timely Pa.R.A.P. 1925(b) statement in a PCRAappeal constitutes waiver of all issues.⁵ Commonwealth v. Butler, 812 A.2d 631, 634 (Pa.2002) (PCRA defendant's failure to comply with order to file Pa.R.A.P. 1925(b) statement resulted in automatic waiver of any issues he may have raised on appeal, even though Commonwealth never briefed or argued waiver). By filing an untimely Pa.R.A.P. 1925(b) statement pro se, Bradley has waived the first two issues in his brief.⁶

We consider Bradley's third and fourth arguments together, because they involve the same issue. Bradley asserts that trial counsel was ineffective for failing to argue that the court computed Bradley's prior record score improperly. Trial counsel failed to preserve this discretionary issue for direct appeal; nevertheless, under the Strickland standards articulated above, this issue lacks arguable merit.

A claim that the sentencing court misapplied the Sentencing Guidelines "constitutes a challenge to the discretionary aspects of sentence [which]presents a substantial question." Commonwealth v. Archer, 722 A.2d 203, 211 (Pa.Super.1998) (en banc). Before this Court can reach the merits of a challenge to the discretionary aspects of a sentence,

we must engage in a four-part analysis to determine: (1) whether the appeal is timely; (2) whether the appellant preserved his issue; (3) whether the appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [see Pa.R.A.P. 2119]; and (4) whether the concise statement raises a substantial

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