Com. v. Glass, C. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 AUGUST 27, 2014
Cedric Antonio Glass appeals from the order of the Court of Common
Pleas of Lackawanna County dismissing his petition filed pursuant to the Post
Conviction Relief Act, 42 Pa.C.S. § 9541, et seq. We remand to the PCRA
court for the issuance of a 1925(a) opinion and we retain jurisdiction.
Glass was charged with six counts of delivery of a controlled
substance,1 one count of criminal use of a communication facility,2 one count
of resisting arrest,3 one count of possession of a controlled substance,4 one
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*
Retired Senior Judge assigned to the Superior Court.
1
35 Pa.C.S. § 780-113(a)(3).
2
18 Pa.C.S. § 7512(a).
3
18 Pa.C.S. § 5104.
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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 count of possession of a controlled substance with the intent
to deliver. N.T., 1/27/2012, at 3-4. The remaining charges were nolle
prossed.
ed immediate
sentencing. N.T., 1/27/2012, at 5. The trial court sentenced Glass to 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 cou
of [his] guilty plea without having a pre-sentence investigation conducted
2013, the PCRA court appointed counsel. On July 9, 2013, PCRA counsel
_______________________
(Footnote Continued)
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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filed a Turner/Finley8 letter and a petition to withdraw as counsel. Counsel
p. 2 [hereinafter Turner/Finley Letter].9 The letter noted the sentence was
discretion. Id. Further, the letter noted Glass admitted during the guilty
plea colloquy that he understood the nature of the charges to which he was
pleading guilty and the factual basis for the plea, understood the rights he
was forfeiting, and knew the possible sentences that could be imposed. Id.,
at 4. The Turner/Finley letter did not mention the pre-sentence report, or
lack thereof.
10
On February 10, 2014,
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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.
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); see also Commonwealth v. Hopfer, 965 A.2d 270, 271,
275 (Pa.Super.2009) (finding the procedure outlined in Bond did not apply
where the PCRA court granted the request to withdraw and dismissed the
(Footnote Continued Next Page)
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Glass filed a notice of appeal. On February 25, 2014, the PCRA court
appointed new counsel and ordered Glass to file a concise statement of
errors complained of on appeal 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. New 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).
Glass raises the following issues on appeal:
A. Whether the trial court erred when the trial court
dismissed the Appellant's Petition under the Pennsylvania
failed to a file Petition for Reconsideration of Sentence.
B. Whether the trial court erred when it dismissed the
Appellant's PCRA Petition when trial counsel failed to object
to the Appellant being sentenced without a Pre-sentence
Investigation.
C. Whether the trial court abused its discretion in
sentencing the Appellant without a Pre-sentence
Investigation Report.
D. Whether the trial court erred in not stating reasons for
its sentence.
_______________________
(Footnote Continued)
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
intent to dismiss the petition).
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o object to the lack of a pre-
waived. See, e.g., Commonwealth v. Albrecht, 720 A.2d 693, 701
(Pa.1998) (claim waived where not raised in PCRA petition).
ains trial counsel was ineffective for failing
to request a pre-sentence report. The pro se PCRA petition phrased the
issue as counsel ineffectiveness for failing to inform Glass of the severity of
his guilty plea without a pre-sentence report.11 Construi pro se
pleading liberally, we find he claimed counsel was ineffective for failing to
request a presentence report. See Commonwealth v. Adams, 882 A.2d
liberally
construe materials filed by a pro se litigant, pro se status confers no special
Our standard of review from the denial of post-
limited to examining whether the court's determination is supported by the
Commonwealth v.
Ousley, 21 A.3d 1238 (Pa.Super.2011) (citing Commonwealth v.
Morales, 549 Pa. 400, 701 A.2d 516, 520 (1997)).
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11
received
Turner/Finley Letter at 2.
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For ineffective assistance of counsel claims, the petitioner must
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
Ousley, 21 A.3d at
1244 (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279
s presumed to be effective and the burden of
demonstrating ineffectiveness Id.
any one of the three [ineffectiveness] prongs results in the failure of
Id. (quoting Rivera, 10 A.3d at 1279).
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
the report would have caused
Id. (citing Broadwater,
479 A.2d at 533).
The Turner/Finley
PCRA petition failed to mention the presentence report and did not address
Turner/Finley letter
stated the sentence was reasonable and discussed the standard for
ineffectiveness of trial counsel and its impact on a knowing, voluntary, and
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intelligent guilty plea. Turner/Finley Letter at 2-5. The letter concluded
uilty plea
Id.
[PCRA petitio Turner/Finley letter to Defendant, as well as
PCRA Petition to be devoid of merit necessitating any further hearing before
12
Further, the PCRA court failed to file a 1925(a) opinion. Rule 1925
directs the trial courts to provide an opinion as to the issues the appellant
will raise. Pa.R.App.P. 1925(a); Commonwealth v. McBride, 957 A.2d
752, 758 (Pa.Super.2008) (citing Commonwealth v. Castillo, 585 Pa. 395,
888 A.2d 775, 779 (2005)). The absence of a PCRA court opinion often
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12
At sentencing, the trial judge did not have a presentence report, did not
conduct a pre-sentence inquiry that apprised him of the particular
nal history and
background, and did not provide any reasons for the sentence.
Commonwealth v. Goggins
sentencing judge must either order a PSI report or conduct sufficient
presentence inquiry such that, at a minimum, the court is apprised of the
particular circumstances of the offense, not limited to those of record, as
the trial court did not hold an evidentiary hearing, there is no record
r
reasonable and no record regarding whether the contents of a presentence
report would have caused the sentencing judge to impose a lesser sentence.
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poses a substantial impediment to meaningful and effective appellate
review. Id.
outl
meaningful review. Accordingly, we remand this case to the PCRA court for
the issuance of a 1925(a) opinion.
Case remanded for the issuance of a 1925(a) opinion within forty-five
(45) days. Jurisdiction retained.
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