Com. v. Van-Arsdale, B. ( 2018 )


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  • J-S70038-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    BILLY ALLEN VAN-ARSDALE                    :
    :
    Appellant               :   No. 701 MDA 2017
    Appeal from the PCRA Order March 28, 2017
    In the Court of Common Pleas of Adams County
    Criminal Division at No(s): CP-01-CR-0000678-2010
    BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.
    MEMORANDUM BY OTT, J.:                                FILED JANUARY 17, 2018
    Billy Allen Van-Arsdale appeals from the order entered March 28, 2017,
    in the Court of Common Pleas of Adams County, that dismissed as untimely
    his second petition filed pursuant to the Pennsylvania Post Conviction Relief
    Act (PCRA), 42 Pa.C.S. § 9541 et seq.1 Van-Arsdale seeks relief from the
    judgment of sentence of 14 years and 9 months’ to 30 years’ imprisonment,
    after he was convicted in a non-jury trial of 17 counts of indecent deviate
    sexual intercourse and other sexual related crimes. Van-Arsdale contends the
    PCRA court erred in (1) dismissing his PCRA petition for lack of jurisdiction,
    and (2) finding his issues waived. Based upon the following, we affirm.
    ____________________________________________
    1For this second PCRA petition, the PCRA court appointed counsel to represent
    Van-Arsdale.
    J-S70038-17
    The PCRA court has thoroughly set forth the facts and procedural history
    relevant to this appeal and therefore we discuss only the facts necessary to
    our discussion. See PCRA Court Opinion, 3/28/2017, at 1-6.
    Van-Ardsale was sentenced on June 2, 2011. No post sentence motion
    or appeal was filed. Sentencing counsel, who entered his appearance after
    Van-Arsdale’s trial, filed a timely PCRA petition on behalf of Van-Arsdale. This
    first PCRA petition was denied on August 8, 2013, and Van-Arsdale filed a pro
    se, nunc pro tunc appeal on March 10, 2014. This Court, by order of April 28,
    2014, directed the PCRA court to conduct a hearing to determine whether
    Van-Arsdale had been abandoned in his PCRA appeal. On May 15, 2014, the
    PCRA court found abandonment and directed the appointment of new PCRA
    counsel. The PCRA court allowed Van-Arsdale to pursue his appeal of the
    denial of his PCRA Petition and directed newly-appointed PCRA counsel to file
    a Pa.R.A.P. 1925(b) concise statement. Thereafter, appointed PCRA counsel
    filed a concise statement, identifying the matters complained of on appeal.
    On January 30, 2015, this Court affirmed the PCRA court’s denial of PCRA
    relief, and the Pennsylvania Supreme Court denied allowance of appeal on
    September 23, 2015. See Commonwealth v. Van-Arsdale, 
    118 A.3d 459
    (Pa. Super. 2015) (unpublished memorandum), appeal denied, 
    125 A.3d 777
    (Pa. 2015).
    Van-Arsdale filed his second PCRA petition pro se on April 11, 2016,
    asserting claims of trial court error, ineffectiveness of counsel, and illegal
    -2-
    J-S70038-17
    sentence.   The PCRA court appointed counsel to represent Van-Arsdale.
    Thereafter, appointed counsel filed an amended second PCRA petition, alleging
    ineffectiveness of sentencing counsel for pursuing PCRA relief, and not a direct
    appeal. See Van-Arsdale’s Second Amended Petition, 11/14/2016, at ¶17.
    On January 10, 2017, the PCRA court issued Rule 907 notice of intent to
    dismiss, and both parties filed a response thereto. On March 28, 2017, the
    PCRA court dismissed the petition without a hearing. This appeal followed.
    “Our review of a PCRA court’s decision is limited to examining whether
    the PCRA court's findings of fact are supported by the record, and whether its
    conclusions of law are free from legal error.” Commonwealth v. Cox, 
    146 A.3d 221
    , 226 n.9 (Pa. 2016) (citation omitted).
    Although Van-Arsdale presents two claims in his brief, the only issue
    preserved by Van-Arsdale’s Pa.R.A.P. 1925(b) statement is the issue of
    jurisdiction. Specifically, in the concise statement Van-Arsdale asserts:
    [T]he Court committed an error of law in dismissing [Van-
    Arsdale’s] PCRA Petition for the following reasons [sic]:
    1. Abuse of [d]iscretion and error of law in finding that the court
    lacked jurisdiction to entertain [Van-Arsdale’s] petition under the
    unique factual circumstances of [Van-Arsdale’s] case.
    Van-Arsdale’s Concise Statement, 5/22/2017.
    Upon our review of the record, Van-Ardsdale’s brief, and the relevant
    statutes and case law, we conclude the PCRA court properly determined the
    petition was untimely and therefore the court lacked jurisdiction. See PCRA
    Court Opinion, 3/28/2017, at 6-11 (finding: (1) Van-Arsdale’s judgment of
    -3-
    J-S70038-17
    sentence became final on July 2, 2011, 30 days after sentencing, when no
    direct appeal was filed, (2) the fact that Van-Arsdale’s appeal rights were
    reinstated in the context of a PCRA appeal, does not render Van-Arsdale’s
    present petition a first, timely PCRA petition, (3) the present, second PCRA
    petition is patently untimely, (4) Van-Arsdale’s allegation of sentencing
    counsel’s abandonment does not trigger the unknown facts exception, 42
    Pa.C.S. § 9545(b)(1)(ii), because the instant petition was not filed “within 60
    days of the date the claim could have been presented,” as required by 42
    Pa.C.S. § 9545(b)(2),2 and (5) time for filing a PCRA petition cannot be
    extended for equitable reasons).
    We agree with the PCRA court’s analysis and conclude no further
    discussion is warranted. Accordingly, we affirm the dismissal of Van-Arsdale’s
    second PCRA petition based upon the PCRA court’s March 28, 2017 opinion,
    pages 1-11.3
    Order affirmed.
    ____________________________________________
    2 As pointedly put by the PCRA court, the PCRA court, by order of May 15,
    2014, found that counsel abandoned Van-Arsdale in his appeal from the denial
    of his first PCRA petition. Thereafter, Van-Arsdale’s first PCRA petition was
    resolved when the Pennsylvania Supreme Court denied allowance of appeal
    on September 23, 2015. However, despite the May 15, 2014 finding of
    abandonment, and the resolution of the first PCRA appeal by the Pennsylvania
    Supreme Court on September 23, 2015, the issue of sentencing counsel’s
    abandonment by filing a PCRA petition rather than a direct appeal was not
    raised until this second petition was filed in April, 2016.
    3In the event of further proceedings, the parties are directed to attach a copy
    of the PCRA court’s opinion to this memorandum.
    -4-
    J-S70038-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/17/2018
    -5-
    Received 7/24/2017 11 :49:54 AM Superior Court Middle District
    Circulated 12/20/2017 01:13 PM
    Filed 7/24/2017 11 ·49·00 AM Superior Court Middle District
    . .                     701 MDA 2017
    IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
    CRIMINAL
    �
    �
    COMMONWEALTH OF PENNSYLVANIA                                       CP-01-CR-678-2010                         j
    i€�
    �f:\I �
    BILL� ALLEN VANARSDALE                                                                        �
    I                                     OPINION                                            �               0
    Bil yi1e1
    1
    Befo�e the Court for consideration is the second P.C.R.A. Petition of
    Van Arsdal1 ("Defendant") challenging the effectiveness of first P.C.R.A counse� As .                            :.·.
    procedural
    the            history is partially controlling of the resolution, it will briefly be
    summariz,.
    I                                                                           ·
    By \minal complaint filed on June 25, 2010, Defendant was charged w�h 17
    counts of indecent deviate sexual intercourse (18 Pa. C.S.A. § 3123) and several
    other sexuJI related crimes for conduct alleged to have been committed with a
    juvenile feJale on numerous occasions between June, 2007, and January, 2010.
    I
    · alleged the juvenile victim was 13 years old at the time the conduct
    The compla1nt
    commenced.                   Defendant promptly retained private counsel who represented him
    through the             reliminary hearing. At the time of Defendant's formal arraignment on
    August 18, 2010, Public Defender Kristin Rice ("trial counsel") entered her
    appearance on behalf of the Defendant.                     After resolution of pre-trial issues,
    Defendant w ived his right to a jury trial on December 6, 2010. He was subsequently
    convicted of           l11
    charges following a non-jury trial held on Dece�ber 15, 2010. Prior
    sentencinJ.
    to                       the Defendant was referred to the Pennsylvania State Board of Sexual
    Offenders to 6etermine whether or not he qualified. as a violent sexual predator. On
    February 14, 2011, the Commonwealth provided notice pursuant to 42 Pa. C.S.A. §
    9795.4 oft eir intent to have the Defendant classified as a sexually violent predator.
    SentencinJ
    was scheduled for March 24, 2011. On March 2, 2011, trial counsel
    moved to lithdraw as counsel an� privately hired counsel, John Elbert, Esquire
    ("sentencin�
    counsel"), entered appearance on behalf of the Defendant.               Following
    the entry   o,   appearance by sentencing counsel, and pursuant to the request of both
    parties, sentencing was continued to April 21, 2011. At that time, after hearing, the
    deteriil ned
    Court                    Defendant to be a sexually violent predator. With the agreement of
    the parties, entencing was rescheduled to May 12, 2011. At the request of defense
    counsel, sehtencing was again rescheduled to May 19, 2011. Due to medical
    loncerning
    emergency             sentencing counsel, sentencing was rescheduled to June 2,
    2011 at whidh time Defendant wa� sentenced to an aggregate sentence on all counts
    of no less lhan 14 years and nine months nor more than 30 years in a state
    correctional mstitution.       Despite being advised of his post-sentence rights on the
    record, Defendant did not file post-sentence motions or direct appeal following
    sentencing.
    Defendant, still represented by sentencing counsel, timely filed a P.C.R.A.
    Petition.    A\ pre-hearing conference on the Petition was scheduled and, after
    numerous coltinuance requests granted to Defendant, was held on March 25, 2013.
    At conferenJ, the Defendant identifie� three issues for hearing: (1) voluntariness of
    try
    his waiver of          trial; (2) ineffectiveness of trial counsel _in failing to �roperly raise an
    available ahb1 defense; and (3) mef,fecbveness of trral counsel                  in   not properly
    I
    preparing for
    tal.    By Amended Petition filed on May 1, 2013, Defendant withdrew
    his challenge to the voluntariness of his jury trial waiver however added an additional
    2
    allegation , f trial counsel ineffectiveness in failing to present available character
    evidence.     Following hearing, on August 8, 2013, the Court denied Defendant's
    P.C.R.A. Petition.
    On Jarch 10, 2014, Defendant filed a prose Nunc Pro Tune Notice of Appeal
    sJperior
    with the          Court. Noting Defendant was still represented by sentencing
    counsel,    thJ Superior Court directed this Court to conduct hearing to determine
    whether or �ot Defendant had been abandoned on appeal. On May 15, 2014, this
    Court    deter1ined
    \ Defendant had beer abandoned by sentencing counsel on appeal
    and reinstat d Defendant's right to appeal the dismissal of his P.C.R.A. Petition.
    the
    Addttionally,     Court appointed new counsel ("P.C.R.A. counsel") to represent the
    Defendant's interests in the appeal of dismissal of his P.C.R.A. Petition. Appeal was
    subsequenU�
    perfected.    In his appeal, Defendant alleged trial court error in
    dismissing hi� claim that trial counsel was ineffective in failing to properly present an
    alibi defense! Defendant also resurrected his claim related to jury trial waiver
    phrJsed
    however           the issue as one related to the ineffectiveness of trial counsel.
    Defe+ant
    Finally,          raised three issues concerning sentencing counsel's performance.
    By Memorandum Opinion filed January 30, 2015. the Superior Court affirmed this
    I
    Court.     In doing so, the Superior Court held the ineffectiveness claims related to
    waiver of jury   rrial and sentencing counsel's stewardship were waived.    Defendant's
    Petition for Allowance of Appeal was denied by the Pennsylvania Supreme Court on
    September 23,\ 2015.
    3
    On April 11, 2016, Defendant filed, pro se, a second Petition for Post
    Conviction bonateral Relief. In his Petition, Defendant raises a number of issues as
    follows:
    l
    1.)    Did counsel improperly influence Defendant to waive his right to a jury
    trial;
    2.)    Was ounsel ineffective in allowing "over sentencing" to occur;
    �e
    3.)    Did     court abuse its discretion in allowing Defendant to appear in a
    non-jury trial in prison clothing;
    I
    \
    4.)    Was the trial court biased due to being aware of a polygraph
    examination;
    5.)    Did t�e trial judge err by failing to recuse himself due to knowledge of
    the pdlygraph examination;
    6.)    Did   thb prosecuting Pennsylvania state trooper commit perjury;
    7.)
    I
    Was the polygraph examination conducted "legally";
    t�e
    8.)    Did      arresting trooper fa!sify the affidavit of probable cause
    accompanying the complaint;
    9.)    Did      thl
    affidavit of probable cause contain information which was not
    provert at trial;
    10.)   Did      th1
    report completed by the Pennsylvania State Board of Sexual
    I
    Offenders improperly rely upon a "falsified" affidavit;
    t�e
    11.)   'Was     Defendant found guilty on every charge or was it just done by
    hearsay evidence?";
    12.)   The oJfendant's sentence was illegal;                       ·
    13.)   Was counset ineffective for not fighting for his appellate rights; and
    14.)
    I
    Was trial court biased by indicating that factual resolution involves
    "matterk of credibility."
    In regard to the ineffectiveness claims, Defendant did not specifically identify
    responsible co1unsel.
    i
    4
    In    (der to help focus Defendant's issues, second P.C.R.A. counsel was
    appointed to represent the Defendant. A pre-hearing conference was conducted on
    August 18) 2016 at which Defendant appeared through video conferencing.                 At
    conference; the Commonwealth questioned this Court's jurisdiction in light of the
    timeliness   lf   the Petition.   In addition, in order to clearly identify which claims of
    ineffectivenkss Defendant was raising against which counsel, Defendant was granted
    until Novejber 14, 2016 to file an amended second P.C.R.A. petition. In the timely
    filed Amended Second Petition. Defendant targeted all claims of ineffectiveness
    seniencing
    against            counsel claiming sentencing counsel was "ineffective in failing to
    raise the trJr errors identified in Defendant's prose second Amended Petition." See
    Amended      JrC.R.A.    Petition, paragraph 17.    Defendant, in his Amended Second
    Petition, does not allege ineffectiveness of any other counsel.
    - I
    At a second pre-hearing conference held on November 17, 2016, Defendant
    I                       .
    confirmed t e issues he intended to pursue as being solely related to the
    ineffectivene s of sentencing counsel in failing to raise the following issues on direct
    appeal:
    1.)   Failur. of the trial judge to recuse himself on the basis that he was the
    judge lwho conducted a pre-trial suppression hearing exposing him to
    informktion inadmissible at non-jury trial;
    2.)   Trial court error in permitting Defendant to appear at non-jury trial in
    prison clothing;
    3.)    Imposition of an excessive sentence;
    FailurJ\
    4.)            to suppress an illegally obtained statement from the Defendant
    on the basis that it was a custodial interview due to two troopers being
    in the room
    I
    at the time of the statement and on the second basis that
    the Defendant did not sign any documents;
    5
    5.)    Allegations in the affidavit of probable cause supporting the criminal
    comrlaint were falsified; and
    6.)    The befendant involuntarily waived his right to a jury trial.
    By Jder dated January 10, 2017, the Defendant was provided notice of the
    Court's inte�t to dismiss his second P.C.R.A. Petition without hearing on the basis
    the Court   ralks jurisdiction pursuant to 42 Pa. C.S.A. § 9545; the issues raised by the
    tave
    Defendant              been previously litigated or waived pursuant to 42 Pa. C.S.A. §
    9544; and the
    I
    issues raised by the Defendant do not require factual development and
    lack legal m\erit. The Defendant was granted 30 days within which to show cause
    why the Petition should not be dismissed without hearing. Following Memorandum .
    received   frol   both parties, and for the reasons set forth below, Defendant's second
    P.C.R.A. Pet�tion will be dismissed.
    lnitiallt. the issue of jurisdiction must be resolved. The Commonwealth argues
    that the PoJt Conviction Relief Act 'requires any petition, including a second or
    subsequent J.etition. to be filed within one year of the date of final judgment unless an
    n+e
    exception,       of which are currently applicable, exists. 42 Pa. C.SA § 9545(b)(1).
    The Commoriwealth points out that since Defendant did not file a direct appeal, final
    judgment    wal entered on July 2. 2011          which is 30 days following his date of
    sentencing. !ecause the second P.C.RA. Petition was not filed until April 11, 2016,
    and Defenda\nt has not alleged an exception to the timeliness requirements,
    Commonwealth argues that pursuant to the provisions of the act, this Court lacks
    jurisdiction.
    16
    Defendant argues that due to his appeal rights being reinstated nunc pro tune,
    I
    the jurisdictional time limit within which to file a P.C.R.A. petition did not commence
    bppeflate
    until after             review had concluded. Although not specifically identified,
    presumablJ1
    Defendant is referring to the Pennsylvania Supreme Court's denial of his
    Petition for !Allowance of Appeal on September 23, 2015. Jn support of his position,
    C�mmonwealth
    he cites                             v. Tumer, 
    73 A.3d 1283
    (Pa. Super. 2013), for the
    proposition that when direct appeal rights are reinstated nunc pro tune as a result of
    p�oceedings,
    P.C.R.A.                a subsequent P.C.R.A. petition will be considered a first
    petition for timeliness purposes and the time for filing the subsequent P.C.R.A.
    petition did not commence until resolution of the direct appeal rights which were
    reinstated.       1   efendant claims that under this authority, his second P.C.R.A. Petition is
    timely.
    Although Defendant accurately cites Commonwealth v. Turner for the
    It
    proposition Jtated, Turner is factually distinguishable currently. In Commonwealth
    v. Turner,             petitioner's appellate rights were reinstated ln order to pursue a direct
    appeal from original trial proceedings. Instantly, although it is true that Defendant's
    appellate   rtg1ts were reinstated, they were reinstated in the context of an appeal from
    denial of hi! first P.C.R.A. Petition rather than a direct appeal from his original
    conviction. \nder these circumstances, Turner is inapplicable. Rather, the issue is
    one of whether Defendant's second Petition is timely where he is alleging
    ineffectivena+
    of counsel who was both post-sentence counsel and P.C.R.A.
    counsel and lvho opted to pursue P.C.RA. relief rather than direct appeal.                 After
    7
    diligent search, it appears the uniqueness of this procedural posture has escaped
    appellate rlview. Nevertheless, a review of general concepts may be helpful.
    Unq! J
    estionably, under Pennsylvania law, the one year limitation on the filing
    of petitions under the P.C.R.A. is a jurisdictional rule that precludes consideration of
    the merits If an untimely P.C.R.A. petition.               Commonwealth v. Brown, 
    111 A.3d 171
    , 175   (Pb.ubsequent
    Super. 2015).          Moreover, it is well settled that any petition, including a
    �
    second or                          petition, must be filed within the statutory time period.
    Commonwealth v. Cintora, 
    69 A.3d 759
    , 762 (Pa. Super. 2013). Against this
    backdrop,
    general           in Commonwealth v. Bennett, 
    930 A.2d 1264
    (Pa. 2007), our
    Supreme cJurt enunciated that attorney abandonment could possibly constitute an
    unknown tadt permitting an untimely petition provided the petition is filed within 60
    dislovery
    days of                       of the abandonment.         This precedent, when read together,
    I                                .
    establishes that the jurisdictional time period for filing of a P.C.R.A. petition is
    aband onment
    1
    mandatory �owever attorney                     may toll the statutory time period
    provided the untimely petition is filed within 60 days of discovery of counsel's
    abandonment.
    .                        I
    Instantly, employing          a "counsel abandonment" strategy, Defendant alleges
    +stch
    abandonmenJ by sentencing counsel. He claims sentencing counsel abandoned him
    in failing to                direct appeal from   denial of his first P.C.R.A. Petition. Indeed, this
    Court found                  abandonment by Order dated May 15, 2014; an Order that also
    reinstated Def\ndant's rights to appeal denial of his first P.C.R.A. Petition Nunc Pro
    Tune.    Howevrr, despite the factual reality of abandonment, Defendant's efforts to
    trigger exception to the current untimely filing lacks merit.                In order to succeed,
    I
    8
    defendant must establish that the current filing occurred within 60 days of the
    abandonment in order to trigger the exception. Commonwealth v. 
    Bennett, supra
    .
    As the currlnt P.C.R.A. Petition was not filed until approximately 23 months later on
    April 11,    2616.    exception to the \imeliness requirements on this basis is not
    appropriate   ·l
    Neve heless, Defendant argues that absent the opportunity to have the issues
    raised in his\ second P.C.R.A. Petition currently addressed, the procedural history of
    this matter
    lhas    effectively precluded those issues     from   judicial review.   More
    pointedly, D fendant claims sentencing counsel's strategy in foregoing direct appeal
    hhallenging
    m favor of               trial counsel's effectiveness in P.C.R.A. proceedings has
    precluded    hil   of the ability to challenge trial court error. Additionally, he suggests
    I
    that due to the lapse of time, sentencing counsel's strategy has also precluded him
    challenJing
    from              sentencing counsel's stewardship in pursuing the strategy.
    AlthoJgh,
    as previously mentioned, the procedural posture of this matter is
    unique, simillr procedural pattern was recently addressed by the Superior Court in
    Commonwe1lth v. Callahan, 
    101 A.3d 118
    (Pa. Super. 2014).                  In Callahan, the
    soJght
    petitioner            P.C.R.A. relief on the basis of trial counsel's alleged ineffectiveness
    for failing tol�ile post-sentence motions, failing to preserve a sufficiency of the
    evidence clail on appeal, failing to call an alibi witness, and failing to pursue a
    motion to suJpress. 
    Id. at 120.
    P.C.RA counsel was appointed and an evidenliary
    motions and        direct appeal     but denied     petitioner's claims of trial counsel
    ineffectivenes related to trial error. 
    Id. Instead of
    filing a post-sentence motion and
    9
    direct appeal, P.C.R.A counsel chose to appeal the P.C.R.A. court's denial of the
    ineffective�ess claims relating to counsel's trial error. 
    Id. at 121.
    On direct appeal to
    Superiir
    the           Court, the P.C.RA court's denial of claims related to trial error on the
    part of counsel was affirmed. 
    Id. Appellant thereafter
    filed a second P.C.R.A.
    allJging
    petition          P.C.R.A. counsel's ineffectiveness for failing to file post-sentence
    motions anjd direct appeal nunc pro tune. 
    Id. Following denial
    of the second
    p1tition,
    P.C.R.A.           the petitioner once again appealed to the Superior Court. 
    Id. conJidering Before
                 the merits of the appeal, the Superior Court dismissed the second
    P.C.R.A. pe�ition on timeliness grounds. 
    Id. at 122.
    In doing so, the court opined:
    "The plain language of the p.C.R.A. provides that a judgement o'f
    sentence becomes final at the conclusion of direct review or when the
    time for seeking direct review expires. See 42 Pa. C.S.A. § 9545(b)(3).
    In fixihg the date upon which a judgment of sentence becomes final, the
    P.C.R.A. does not refer to the conclusion of collateral review or the time
    for abpealing a collateral review determination.          Thus, the plain
    language of the P.C.R.A. statute shows that a judgment of sentence
    becorhes final immediately upon expiration of the time for seeking direct
    revie'1.1 even if other collateral proceedings are still ongoing. As this
    result is not absurd or unreasonable, we may not look for further
    manifestations of legislative intent."                               ·
    
    Id. at 122.
    The Callahan Court further noted that the period for filing a P.C.R.A.
    petition cannot be extended for equitable reasons absent existence of a statutorily
    enumerated lxception. _Id.at 123. T�is reasoning is persuasive instantly.
    Defenbant's judgment of sentence became final on July 2, 2011 when
    Defendant chose not to file direct appeal with the Superior Court.          Defendant's
    decision to flrego direct appeal and pursue relief through P.C.R.A. proceedings is
    factually indiltinct from the decision in Callahan to pursue P.C.R.A. proceedings
    rather than t�e reinstated rights to file post-sentence motions and direct appeal. As
    10
    the factual circumstances to which the Superior Court applied its reasoning are
    substantially similar to those currently before the Court, the result shall likewise be
    the same.
    Even if this Court concluded that Defendant's Petition was timely on equitable
    grounds, he is still not entitled to relief. The Defendant's claims of trial court error in
    permitting him to appear at a non-jury trial in prison clothing was not preserved by
    trial counsli through objection, and Defendant does not currently claim
    ineffectivenJss
    on the part of trial counsel related to this error. As such, the issue is
    waived.    seJ  Commonwealth v. Tedford, 
    960 A.2d 1
    . 13 (Pa. 2008) (a petitioner
    layetd
    raising            ineffectiveness claim must plead ineffectiveness of all preceding
    counsel and present argument of ineffectiveness as to each relevant layer of
    representanon).
    Similarly, Defendant's claims related to falsification in the affidavit of
    probable cause and failure to file suppression motion relate to trial counsel's, in
    slntencing
    addition to              counsel's, ineffectiveness. Yet, the current P.C.R.A. Petition
    chJllenge
    does not             trial counsel's stewardship. Accordingty, Defendant's failure to
    plead trial ceunsere ineffectiveness in, failure to preserve these issues precludes a
    layered claim ag�inst sentencing counsel pursuant to the instruction of Tedford.
    Defendant's claim that the trial judge erred in failing to recuse himself is
    P�nnsylvania
    frivolous.                     law presumes that judges have the ability to determine
    whether or nit they can rule impartially and without prejudice.       Commonwealth v.
    Kearney, 92      l.3d   51, 60 (Pa. Super. 2014). As a general rule, a motion for recusal
    is decided by the judge whose impartiality is being challenged. Commonwealth v.
    Abu-Jamal, 7i20 A.2d 79, 89 (Pa. 1998). In considering the motion, the judge must
    11
    conscientio1usly determine whether his or her ability to assess the case in an impartial
    manner an� free of personal bias or interest can be achieved. 
    Id. The judge
    must
    also consider whether continued involvement in the case creates an appearance of
    impropriety or would otherwise tend to undermine public confidence in the judiciary.
    '
    
    Id. These decisions
    are personal in nature and unreviewable absent an abuse of
    discretion. 1d.                           .
    lnstahtly. Defendant complains this writer was unable to preside fairly over trial
    I                   .
    I
    because of involvement in pre-trial suppression motions. The irony of Defendant's
    I
    allegation isj that this Court ruled in his favor on the suppression motion. Under this
    circumstance, the claim, without any support. that this Court was unable to assess
    l
    evidence in an impartial manner and dispose of issues fairly and without prejudice
    defies the rlcord.       As indicated at the time the Motion to Recuse was made, the
    Court was    ablI e to disregard any information which was suppressed.       Defendant has
    failed to poi     ht out any evidence of prejudice or pre-disposition to the contrary.    He
    has also ftled to identify any legal support for his position.          Conversely,
    Pennsylvanii                                holding-
    jurisprudence is unwavering in          that a judge, as fact-finder, is
    presumed to disregard inadmissible evidence and consider only admissible evidence.
    Commonwealth v. Fears, 
    836 A.2d 52
    , 71 n. 19 (Pa. 2003). Since the Defendant
    pointlto
    cannot               any instances of bias �r prejudice on the part of the trial judge in his
    Petition, his , laim is meritless.
    Defen6ant's claim that sentencing counsel was ineffective in failing to
    challenge    hil waiver of the right to a jury trial is also insufficient to justify relief.
    12
    Indeed, this precise issue was addressed by the Superior Court when considering his
    appeal froj his first P.C.R.A. Petitio�. Therein, the Court noted:
    We
    4o1e  that in waiving his right to a jury trial, Van-Arsdale testified that
    he understood that a jury would be chosen from members of the
    community. the verdict had to be unanimous, and that he would be
    aflo�ed to participate in the selection of the jury. See N.T., 12/6/10, at
    4-5; see
    I
    also CommonwealthI v. Mallory, 
    941 A.2d 686
    , 696-97 (Pa.
    2008� (stating that a valid jury trial waiver requires that a defendant is
    informed "that the jury be chosen from members of the community (a
    jury bf one's peers), that the verdict be unanimous, and that the
    accused be allowed to participate in the selection of the jury panel.")
    (citati'on omitted). Van-Arsdale also stated that nobody promised him
    anytHing in exchange for giving up his jury trial rights, that nobody
    threatened him, that he spoke with trial counsel about the decision, that
    he was  I
    satisfied with trial counsel's representation, and that he was
    voluntarily waiving his jury trial rights. See N.T., 1216/10, at 9-10.
    Commonwlalth v. Van-Arsdale, No. 438 MDA 2014 (January 30, 2015). This
    review by thi Superior Court accurately summarizes the record and confirms the lack
    of any basiJ for relief had direct appeal raising the issue been filed by sentencing
    Si1ce
    counsel.           counsel cannot be deemed ineffective for failing to raise a meritless
    claim, Commonwealth v. Koehler, 
    36 A.3d 121
    , 144 (Pa. 2012), Defendant's
    allegation is ot a basis for relief.
    In his final issue, Defendant claims sentencing counsel was ineffective in
    failing to ch llenge his sentence as an abuse of discretion. Appellate authority on
    this subject Jeaches that, in the context of a P.C.R.A. petition, the determination of.
    whether a sehtence is manifestly excessive can be reached, as a matter of law, upon
    a review of t�e record as it already exists.   Commonwealth v. Jones, 
    942 A.2d 903
    ,
    suf
    906 (Pa.        r. 2008). " ... [l]f the P .C.R.A. court can determine from the record that
    the sentence was not excessive, ... , then there is no underlying merit to the
    ineffectiveneJs claim and the claim must fail." 
    Id. 13 Inst
    ntly, Defendant was convicted of 15 counts of involuntary deviate sexual
    intercoursejwith a minor as a felony of the first degree,1 one count of unlawful contact
    with   a minJ as a    felony of the first _degree,2 one count of statutory sexuaf assault as
    a felony of the second degree,3 five counts of aggravated indecent statutory assault
    as felonies of the second degree,4 one count of corruption of minors as a
    misdemeanor of the first degree,5 and two counts of indecent assault as
    misdemeanbrs of the second degree.6                   Following Defendant's conviction, the
    commonwealth provided notice of its intent to seek mandatory sentences of no less
    I
    than ten years on each of the 15 felony counts pursuant to law applicable at the time
    of Defendaru's conviction.7 Independent of the mandatory sentencing sought by the
    Commonwelith, the Pennsylvania Sentencing Guidelines recommended a standard
    slntencing
    range for            between 48 months and 66 months for each of the 15
    felony/one convictions. 8 Armed with this information as well as a pre-sentence
    investigation!
    the Court structured sentencing through a combination of concurrent
    and consecutive sentences applxing a standard guideline range as to each
    conviction fo� an aggregate sentence of no less than 14 years and nine months nor
    more than 3J years. In doing so, the Court noted the need to take into account the
    1                 I
    18 Pa. C.S.A. § 3123 {a)(7)
    2
    3
    s
    18 Pa. C.S.A. 6318{a)(1)
    18 Pa. C.S.A. § 3122.1
    18 Pa. C.S.A. § 3125 (a)(8)
    4
    5
    18 Pa. C.S.A. § 6301(a)(1)
    618
    Pa. C.S.A. § 3126 {a)(8)
    7
    At the time oflsentencing, the Commonwealth proceeded under 42 Pa. C.S.A. § 9718(a)(1) which
    provided that a conviction for the crime of involuntary deviate sexual intercourse when the victim is
    Jess than 16 ye rs of age required a mandatory minimum term of imprisonment of at least ten years.
    In CommonweMth v. Wolfe, 
    106 A.3d 800
    (Pa. Super. 2014), the Superior Court determined the
    section to be u�constitutional pursuant to the United States Supreme Court's decision in Alleyne v.
    United States, 
    133 S. Ct. 2151
    , 
    186 L. Ed. 2d 314
    (2013}.
    14
    I
    i
    I
    rehabilitatil needs of the Defendant, the impact on the victim, and the need for
    community safety and protection.                Nevertheless, the Court exercised restraint in
    l
    refraining from imposing an overly punitive sentence.                For instance, if mandatory
    sentences were consecutively imposed on each of the 15 felony/one counts,
    Defendant aced exposure of 150 to 300 years' incarceration. Indeed, at the time of
    f l
    sentencing, the Commonwealth was seeking essentially a life sentence of 20 to 50
    TJking
    years.          into account the i�dividual circumstances before the Court, this
    request wal not honored by the sentencing court. Thus, it is clear as a matter of law
    that the sJandard guideline range sentences imposed by the Court were neither
    excessive           tar   an abuse of discretion'. As previously mentioned, since counsel cannot
    be deemed ineffective for failing to pursue a frivolous issue, the Defendant is not
    entitled to Jelief on this claim.
    For       the foregoing reasons, the attached Order is entered.
    BY THE COURT:
    Date filed: March 28, 2017
    8
    The Deferldant's prior record score was zero with offense gravity score of 12 for a conviction of
    involuntary deviate sexual intercourse.
    I
    I                                   15
    I