Case Information

*-715 Circulated 06/09/2017 09:59 AM *-712 Circulated 06/09/2017 09:59 AM *1 J-S32010-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA Appellee :

:

v. :

:

CALVIN METZ :

: Appellant : No. 3094 EDA 2015 Appeal from the PCRA Order October 2, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002989-2010 BEFORE: GANTMAN, P.J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 29, 2017

Appellant, Calvin Metz, appeals from the order entered in the Philadelphia County Court of Common Pleas, dismissing his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

The relevant facts and procedural history of this case are as follows.

Appellant broke into his estranged wife’s house and removed approximately

$6,585.00 worth of property. As a result, Appellant was arrested and

charged with burglary and related offenses. Appellant entered a negotiated

guilty plea to burglary on September 8, 2010. That same day, the court

sentenced Appellant to a term of one (1) to two (2) years’ imprisonment, 42 Pa.C.S.A. §§ 9541-9546.

___________________________

*Former Justice specially assigned to the Superior Court.

followed by a consecutive term of four (4) years’ probation. Appellant did

not seek direct review.

The court held a violation of probation hearing for Appellant on July 2, 2013. At the hearing, the parties stipulated that Appellant had failed to

report for probation and changed his residence without notifying his

probation officer. As a result, the court found Appellant in technical violation

and revoked probation. On August 29, 2013, the court re-sentenced

Appellant to a term of five (5) to ten (10) years’ imprisonment for the

burglary conviction. Appellant filed pro se post-sentence motions, which the

court denied. Appellant did not seek further direct review, and his judgment

of sentence became final on September 28, 2013.

Appellant timely filed a pro se PCRA petition on September 16, 2014, and an amended pro se PCRA petition on January 13, 2015. The PCRA court

appointed PCRA counsel, who subsequently filed a motion to withdraw and

Turner/Finley no-merit letter on July 11, 2015. Appellant filed a pro se

response on August 13, 2015. On September 4, 2015, the PCRA court

issued notice of its intent to dismiss Appellant’s PCRA petition pursuant to

Pa.R.Crim.P. 907. Appellant did not respond. The PCRA court denied relief

and allowed counsel to withdraw on October 2, 2015. The PCRA court

appointed Attorney Douglas Earl to represent Appellant on October 5, 2015. Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988) and

Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) ( en banc ).

Appellant timely filed a notice of appeal on October 6, 2015. On October 9,

2015, the PCRA court ordered Appellant to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b). Appellant did not comply.

On March 25, 2016, Appellant filed a “Motion for Remand” with this Court so

he could file a Rule 1925(b) statement nunc pro tunc . This Court granted

the motion on April 21, 2016, and directed Appellant to file a Rule 1925(b)

statement.

On May 3, 2016, Appellant timely filed a counseled Rule 1925(b) statement and an amended Rule 1925(b) statement nunc pro tunc . In his

amended Rule 1925(b) statement Appellant, for the first time, claimed:

PCRA counsel was ineffective for failing to request reinstatement of

Appellant’s direct appeal rights nunc pro tunc so Appellant could challenge

the discretionary aspects of his sentence; and the court relied primarily on

Appellant’s prison tapes when it imposed an excessive sentence, which

overemphasized the need to protect the public and ignored Appellant’s

rehabilitative needs. Appellant also claimed that he raised a meritorious

sentencing issue in his PCRA petition.

Appellant presents one issue in his brief:

DID THE [PCRA] COURT ERR BY RULING THAT ISSUES NOT RAISED IN THE RESPONSE TO THE RULE 907 NOTICE Appellant challenged his August 29, 2013 judgment of sentence on several grounds in his PCRA petition, but his amended Rule 1925(b) statement fails

to specify which sentencing issue he wanted to preserve.

ARE WAIVED?

(Appellant’s Brief at 3).

Appellant argues this Court should address the issues Appellant raised in his amended Rule 1925(b) statement. Appellant baldly asserts he did not

waive these issues for appellate review. Regarding Appellant’s

ineffectiveness of PCRA counsel claim, Appellant essentially avers this Court

should not follow its decision in Commonwealth v. Smith , 121 A.3d 1049

(Pa.Super. 2015), appeal denied , 136 A.3d 981 (2016), which held that a

petitioner’s failure to raise an ineffectiveness of counsel claim after receiving

Rule 907 notice results in waiver of the claim. Appellant, however, fails to

argue why this Court should abandon its decision in Smith and address the

merits of this issue. Likewise, Appellant merely restates the sentencing

issues from his amended Rule 1925(b) statement, but he does not provide

any supporting argument. Appellant concludes this Court should address

Appellant’s issues, vacate his judgment of sentence, and remand this case

for a sentencing hearing. We disagree.

Our standard of review of a grant or 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. Conway , 14 A.3d 101 (Pa.Super. 2011), appeal denied ,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal

denied , 593 Pa. 754, 932 A.2d 74 (2007). We exercise de novo review over

the PCRA court’s legal conclusions. Commonwealth v. Spotz , 610 Pa. 17,

44, 18 A.3d 244, 259 (2011).

A PCRA petitioner must plead and prove his allegation of error has not been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). “[A]n issue

is waived if the petitioner could have raised it but failed to do so before trial,

at trial, during unitary review, on appeal or in a prior state post-conviction

proceeding.” 42 Pa.C.S.A. § 9544(b). Where PCRA counsel seeks to

withdraw from representation, the petitioner must preserve any challenge to

counsel’s ineffectiveness in a response to counsel’s no-merit letter or, if

applicable, the court’s Rule 907 notice. See Commonwealth v. Pitts , 603

Pa. 1, 9 n.4, 981 A.2d 875, 880 n.4 (2009). A petitioner’s failure to raise an

ineffectiveness of PCRA counsel claim after receiving Rule 907 notice results

in waiver of the claim. Id. See also Commonwealth v. Ousley , 21 A.3d

1238, 1245 (Pa.Super. 2011), appeal denied , 612 Pa. 698, 30 A.3d 487

(2011) (stating Pitts prohibits this Court’s review of petitioner’s

ineffectiveness of PCRA counsel claim, where issue was raised for first time

in PCRA appeal).

A claim that a sentence is manifestly excessive challenges the discretionary aspects of sentencing. Commonwealth v. Lutes , 793 A.2d

949 (Pa.Super. 2002). Objections to the discretionary aspects of sentence

are generally waived if they are not raised at the sentencing hearing or

raised in a motion to modify the sentence imposed at that hearing.

Commonwealth v. Mann , 820 A.2d 788, 794 (Pa.Super. 2003), appeal

denied , 574 Pa. 759, 831 A.2d 599 (2003). “Challenges to the discretionary

aspects of sentencing are not cognizable under the PCRA.” Commonwealth

v. Fowler , 930 A.2d 586, 593 (Pa.Super. 2007), appeal denied , 596 Pa.

715, 944 A.2d 756 (2008).

In the instant case, Appellant timely filed a pro se PCRA petition on September 16, 2014, and an amended pro se PCRA petition on January 13,

2015. The PCRA court appointed PCRA counsel, who subsequently filed a

motion to withdraw and Turner/Finley no-merit letter. Appellant

responded to PCRA counsel on August 13, 2015. On September 4, 2015,

the PCRA court issued Rule 907 notice to Appellant. Appellant did not

respond. The PCRA court denied relief and allowed counsel to withdraw on

October 2, 2015. In his amended Rule 1925(b) statement, Appellant, for

the first time, claimed: PCRA counsel was ineffective for failing to request

reinstatement of Appellant’s direct appeal rights nunc pro tunc so Appellant

could challenge the discretionary aspects of his sentence. Appellant did not

raise this specific allegation of ineffectiveness of PCRA counsel in his August

13, 2015 response to counsel’s withdrawal petition or in response to the

PCRA court’s Rule 907 notice. See Pitts, supra . Therefore, Appellant’s

ineffectiveness of PCRA counsel claim is waived. See id. ; Ousley, supra .

Appellant’s remaining arguments relate to his August 29, 2013 judgment of sentence, and it appears Appellant has abandoned these issues

on appeal. Appellant’s sentencing claims are completely undeveloped and

vague, consisting of a single conclusory statement that Appellant did not

waive these issues on appeal, which lacks any cogent nexus between

relevant law and the facts of this case. Thus, Appellant waived his

sentencing issues. See Commonwealth v. Johnson , 604 Pa. 176, 985

A.2d 915 (2009), cert. denied , 562 U.S. 906, 131 S.Ct. 250, 178 L.Ed.2d

165 (2010) (explaining appellant waives issue on appeal where he fails to

present claim with citations to relevant authority or develop issue in

meaningful fashion capable of review).

To the extent Appellant claims the court relied primarily on Appellant’s prison tapes when it imposed an excessive sentence, his challenge

implicates the discretionary aspects of sentencing. See Lutes, supra .

Appellant failed to raise this argument at the sentencing hearing or in his

motions to reconsider sentence. Instead, Appellant raised this issue for the

first time on appeal in his May 3, 2016 amended Rule 1925(b) statement.

Therefore, Appellant waived his excessive sentence claim on this ground as

well. See Fowler, supra; Mann, supra .

Moreover, even if Appellant had properly preserved his issues on Appellant waived his ineffectiveness of counsel claim on this ground also. appeal, they would merit no relief and we would affirm based on the PCRA

court opinions. ( See PCRA Court Opinions, filed March 15, 2016, at 1-3, and

September 2, 2016, at 1-3) (finding: Appellant did not request direct

appeal; court imposed sentence of five to ten years’ imprisonment after

Appellant violated probation for burglary; burglary is first degree felony,

which carries maximum penalty of twenty years’ imprisonment; including

Appellant’s negotiated sentence of one to two years’ imprisonment,

Appellant’s sentence is still within lawful maximum; Appellant’s Alleyne

challenge merits no relief because court did not impose mandatory minimum

sentence; court properly considered Appellant’s recorded prison statements

during sentencing hearing because statements were party admissions

pursuant to Pa.R.E. 803(25); there were no genuine issues of fact which

required evidentiary hearing). Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/29/2017

Alleyne v. U.S. , ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).