Com. v. Glass, C. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CEDRIC ANTONIO GLASS
Appellant No. 330 MDA 2014
Appeal from the PCRA Order January 15, 2014
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001866-2011
BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 09, 2015
Cedric Antonio Glass appeals from the order of the Lackawanna County
Court of Common Pleas dismissing his petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541, et seq. We remand to
the PCRA court for an evidentiary hearing and the issuance of a
supplemental 1925(a) opinion.
Glass was charged with six counts of possession of a controlled
substance with the intent to distribute (“PWID”),1 one count of criminal use
of a communication facility,2 one count of resisting arrest,3 one count of
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 Pa.C.S. § 780-113(a)(30).
2
18 Pa.C.S. § 7512(a).
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possession of a controlled substance,4 one count of possession of
marijuana,5 one count of possession of drug paraphernalia,6 and one count
of tampering with evidence.7 On January 27, 2012, Glass pled guilty to
criminal use of a communication facility, resisting arrest, and one PWID
count. N.T., 1/27/2012, at 3-4. The remaining counts were nolle prossed.
Following the guilty plea hearing, Glass’s counsel requested immediate
sentencing. N.T., 1/27/2012, at 5. Counsel then stated:
We’ve had an opportunity to review the case with
probation and the District Attorney. It appears [Glass] has
a prior record score of five. We have reviewed the
standard ranges. I’ve had a chance to review the standard
range with [Glass] and he’s prepared to go forward with
sentencing.
N.T., 1/27/2012, at 5.
The trial court sentenced Glass to 27 to 54 months’ imprisonment and
2 years’ consecutive special probation for the PWID conviction; 12 to 24
months’ imprisonment for the criminal use of a communication facility
conviction to be served consecutive to the PWID sentence; and an additional
_______________________
(Footnote Continued)
3
18 Pa.C.S. § 5104.
4
35 Pa.C.S. § 780-113(a)(16).
5
35 Pa.C.S. § 780-113(a)(31).
6
35 Pa.C.S. § 780-113(a)(32).
7
18 Pa.C.S. § 4910(1).
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consecutive sentence of 2 years’ special probation for the resisting arrest
conviction. The court, therefore, imposed an aggregate sentence of 39 to 78
months’ imprisonment followed by 4 years’ probation. Id. at 6. Trial
counsel did not request, and the trial court did not order, a pre-sentence
report.
Glass did not file post-sentence motions or a direct appeal. On
November 27, 2012, Glass filed a pro se PCRA petition alleging ineffective
assistance of counsel “for failure to inform [Glass] of the severity of [his]
guilty plea without having a pre-sentence investigation conducted first.”
Motion for Post Conviction Collateral Relief, at p. 7. On April 23, 2013, the
PCRA court appointed counsel. On July 9, 2013, counsel filed a
Turner/Finley8 letter and a petition to withdraw as counsel. Counsel stated
Glass’s claim was that “[trial] counsel was ineffective as he received an
illegal sentence.” Letter to Judge Michael J. Barrasse, dated July 3, 2013, at
p. 2 [hereinafter Turner/Finley Letter].9 The Turner/Finley letter did not
mention the pre-sentence report, or lack thereof. See id., at 1-4.
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8
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super.1988).
9
The Turner/Finley letter is not paginated. All page numbers have been
supplied by this Court.
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On January 15, 2014, the PCRA court granted counsel’s petition to
withdraw and dismissed Glass’s PCRA petition.10 On February 10, 2014,
Glass filed a notice of appeal. On February 25, 2014, the PCRA court
appointed new counsel and ordered counsel to file a concise statement of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b) within 21 days of the order. Counsel filed a motion for
extension of time to file the concise statement. On February 28, 2014, the
PCRA court granted the extension, requiring counsel to file the concise
statement on or before April 10, 2014. Counsel filed a concise statement on
April 2, 2014.
The PCRA court did not file an opinion as required by Pennsylvania
Rule of Appellate Procedure 1925(a). On August 27, 2014, we remanded
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10
The PCRA court dismissed the petition without a hearing and without
issuing notice of its intent to dismiss the petition without a hearing.
However, where a Turner/Finley letter has been filed and served on the
defendant, and where the court waits twenty days following the service of
this letter, it can dismiss a PCRA petition without a hearing and without
notice of its intent to do so. Commonwealth v. Bond, 630 A.2d 1281
(Pa.Super.1993); cf. Commonwealth v. Hopfer, 965 A.2d 270, 271, 275
(Pa.Super.2009) (procedure outlined in Bond did not justify dismissal of
PCRA petition where the PCRA court granted request to withdraw and
dismissed petition less than 20 days after the petitioner received counsel’s
request to withdraw). Further, Glass did not object in his appellate brief to
the PCRA court’s failure to issue a notice of intent to dismiss the petition
and, therefore, waived the issue. Commonwealth v. Boyd, 923 A.2d 513,
514 n.1 (Pa.Super.2007) (noting appellant waived any complaint of the
court’s failure to issue notice of its intent to dismiss the petition).
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this case for the issuance of a 1925(a) opinion, and on September 23, 2014,
the trial court filed an opinion.
Glass raises the following issues on appeal:
A. Whether the trial court erred when the trial court
dismissed [Glass’s] Petition under the [PCRA] when trial
counsel failed to a file Petition for Reconsideration of
Sentence.
B. Whether the trial court erred when it dismissed
[Glass’s] PCRA Petition when trial counsel failed to object
to [Glass] being sentenced without a Pre-sentence
Investigation.
C. Whether the trial court abused its discretion in
sentencing [Glass] without a Pre-sentence Investigation
Report.
D. Whether the trial court erred in not stating reasons for
its sentence.
Appellant’s Brief at 5.
As noted in this Court’s August 27, 2014 memorandum, Glass waived
his first, third, and fourth claims because he failed to raise them in his PCRA
petition. Commonwealth v. Glass, No. 330 MDA 2014, at *5 (Pa.Super.
filed Aug. 27, 2014); see, e.g., Commonwealth v. Albrecht, 720 A.2d
693, 701 (Pa.1998) (claim waived where not raised in PCRA petition). We
will address Glass’s second claim, which maintains trial counsel was
ineffective for failing to request a pre-sentence report.
Our standard of review for the denial of post-conviction relief “is
limited to examining whether the court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
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Ousley, 21 A.3d 1238 (Pa.Super.2011) (citing Commonwealth v.
Morales, 549 Pa. 400, 701 A.2d 516, 520 (1997)).
For ineffective assistance of counsel claims, the petitioner must
establish: “(1) that the underlying claim has merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) but for
the errors or omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different.” Ousley, 21 A.3d at
1244 (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279
(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove
any one of the three [ineffectiveness] prongs results in the failure of
petitioner's claim.” Id. (quoting Rivera, 10 A.3d at 1279).
“The failure to request a pre-sentence report is not per se ineffective.”
Commonwealth v. Johnson, 517 A.2d 1311, 1317 (Pa.Super.1986) (citing
Commonwealth v. Broadwater, 479 A.2d 526 (1984)). Counsel will be
found ineffective only “when the contents of the report would have caused
the sentencing judge to impose a lesser sentence.” Id. (citing Broadwater,
479 A.2d at 533).
Without conducting a hearing, the PCRA court found counsel was not
ineffective for failing to request a pre-sentence report. The PCRA court
found Glass failed to establish all three prongs of the ineffectiveness test.
Without a hearing, however, certain questions remain, including whether
counsel discussed the waiver of the pre-sentence report with counsel;
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whether any contents in the report could have swayed the court’s sentence,
i.e., whether “the contents of the report would have caused the sentencing
judge to impose a lesser sentence”; whether counsel’s decision to not
request a pre-sentence report was a reasonable strategy; and whether Glass
suffered prejudice as a result of the decision not to request a pre-sentence
report. Accordingly, we will remand this case with instructions for the trial
court to conduct an evidentiary hearing to determine whether Glass’s trial
counsel was ineffective for failing to request a pre-sentence report, and for
the issuance of a supplemental 1925(a) opinion following the hearing. See
Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super.2007) (“It is
the responsibility of the reviewing court on appeal to examine each issue
raised in the PCRA petition in light of the record certified before it in order to
determine if the PCRA court erred in its determination that there were no
genuine issues of material fact in controversy and in denying relief without
conducting an evidentiary hearing.”) (quoting Commonwealth v. Khalifah,
852 A.2d 1238, 1239–40 (Pa.Super.2004))).
The trial court shall conduct an evidentiary hearing within 45 days of
the date of this order and file a supplemental 1925(a) opinion within 30 days
of the evidentiary hearing.
Case remanded to the PCRA court for an evidentiary hearing and the
issuance of a supplemental 1925(a) opinion as directed. Jurisdiction
relinquished.
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Judge Donohue joins this memorandum
Judge Platt files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2015
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