Com. v. Edeline, E

• Court: Superior Court of Pennsylvania
• Decided: August 27, 2014
• Docket: 1441 EDA 2008
• Status: Unpublished

Opinion

J-S47001-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ERIC JAMES EDELINE

Appellant No. 1441 EDA 2008

Appeal from the PCRA Order April 18, 2008 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1001831-2004

BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.: FILED AUGUST 27, 2014

Appellant, Eric James Edeline, appeals from the April 18, 2008 order

dismissing, without a hearing, his amended petition for relief filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

counsel together with a Turner/Finley

without merit.1 After careful review, we affirm the denial of PCRA relief, and

otion to withdraw.

The pertinent factual and procedural history of this case follows.

Appellant was arrested on August 20, 2004, in connection with the stabbing

____________________________________________ 1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988) (en banc). J-S47001-14

of victim, Tom Murphy in the 2200 block of York Street in the City of

Philadelphia. The case proceeded to a jury trial.

After a trial commencing on August 4, 2005, and ending August 5, 2005, [Appellant] was found guilty of first-degree felony aggravated assault, 18 Pa.C.S. § 2702, and possessing an instrument of crime (PIC), 18 Pa.C.S. § 907, by a jury. On September 28, 2005, [Appellant] was sentenced to

assault conviction, and concurrently sentence[d] to 2 1

An appeal was filed on October 18, 2005, but later marked discontinue[d] by the Superior Court on April 20, 2006 (2972 EDA 2005). On September 29, 2006, [Appellant] filed a pro se Petition for Relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541, et seq. On February 21, 2007, Norman Orville Scott, Esquire, was appointed to represent [Appellant]. On October 12, 2007, an Amended

court erred in sentencing [Appellant] pursuant to the second strike provision of the sentencing code 2 On January 31, 2008, a Motion To Dismiss was filed by the Commonwealth. On March 10, 2008, th[e PCRA] court filed a dismissal Notice pursuant to Pa. R.Crim. P. 907. On April 18, 2008, th[e PCRA] court entered

__________________________________________ 1 The court determined that this conviction was a second conviction for a crime of violence under 42 Pa.C.S. §9714(a)(1), after the Commonwealth introduced the Common Pleas Quarter Session file, CP-51-CR-0605361-2001, establishing that [Appellant] had previously been convicted of first- degree felony robbery on November 1, 2001. 2 mended

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court [err] in sentencing [Appellant] pursuant [to] the two strikes provision of the sentencing code where [Appellant] had not previously been provided a sufficient opportunity to rehabilitate himse

PCRA Court Opinion, 7/25/08, at 1-2 (footnotes in original).

Appellant filed a timely notice of appeal on May 16, 2008.2

Concurrently with his notice of appeal, Appellant filed a concise statement of

errors complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b), although not ordered to do so. The trial court filed its

Rule 1925(a) opinion on July 25, 2008.

counsel filed a Turner/Finley letter brief, together with a motion to

withdraw as counsel. Appellant has not filed any response.

On appeal, Counsel raises the following issue for our review.

[1.] Did the PCRA court err in finding the sentence

and dismissing the PCRA petition without a hearing?

Turner/Finley Letter Brief at 3.

request to withdraw from representation. Our Supreme Court has

____________________________________________ 2 The inordinate delay since the filing of the notice of appeal was occasioned -appointed counsel, requiring this Court to issue two remands to the trial court to determine the tion and an order for compliance, on October 10, 2008, February 6, 2013, and August 23, 2013, respectively.

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articulated the requirements PCRA counsel must adhere to when requesting

to withdraw, which include the following.

- the nature and extent of his review;

- each issue the petitioner wished to have reviewed;

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meritless[.]

Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley,

supra Counsel must also send to the petitioner: (1) a copy of the

a statement advising petitioner of the right to proceed pro se or by new

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.

2007).

[W]here counsel submits a petition and no- merit letter that do satisfy the technical demands of Turner/Finley, the court - trial court or this Court - must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief. By contrast, if the claims appear to have merit, the court will deny

counsel to file an

Id. (citation omitted).

Instantly, we determine that PCRA counsel has complied with the

requirements of Turner/Finley. Specifically, Turner/Finley

letter and petition to withdraw detail the nature and extent of PCRA

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pro se PCRA

petition and determine that the sole issue lacks merit. PCRA counsel

without merit. Additionally, counsel served Appellant with a copy of the

petition to withdraw and Turner/Finley brief, advising Appellant that, if

PCRA counsel was permitted to withdraw, Appellant had the right to proceed

pro se or with privately retained counsel. As noted, Appellant has not filed

any response. We proceed, therefore, to conduct an independent merits

.

We begin by noting the following standard of review,

from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. 2012) (citation omitted).

unless there is no support for the findings in the Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (internal quotation marks and citation omitted), appeal denied, Pa. , 38 A.3d 823 (2012) tled to deference, but its legal determinations are subject to Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009) (internal quotation marks and citations omitted).

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012), appeal

denied, 72 A.3d 602 (Pa. 2013).

[T]he right to an evidentiary hearing on a post- conviction petition is not absolute. It is within the

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support either in the record or other evidence. 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.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007)

(internal citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see

also Pa.R.Crim.P. 907.

Appellant argues that the trial court erred by sentencing him under 42

Pa.C.S.A. § 9714(a)(1) as a second-strike offender. Turner/Finley Letter

Brief at 1. In his PCRA petition, Appellant cited Commonwealth v.

Shiffler, 879 A.2d 185 (Pa. 2005) as standing for the proposition that

punish more severely offenders who have persevered in criminal activity

Law in Support of Amended PCRA Petition, 10/12/13, at 5, quoting, id. at

195. Appellant argued that his acceptance of responsibility by pleading to

clear message of the Shiffler [C]ourt is that the mere conviction of a violent

felony of the first degree is insufficient to trigger where the defendant enters

a guilty plea and r Id. at 6.

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waived because he could have raised the issue before the trial court at the

ef at

4, citing 42, Pa.C.S.A. §§ 9543(a)(3), and 9544(b) (proscribing PCRA relief

for allegations of error that have or could have been raised before or at trial,

or on direct appeal); Trial Court Opinion, 7/25/08, at 2-3 (finding waiver on

the same ground).

See

Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014)

(recognizing a challenge to the imposition of a mandatory sentence under

Section 9714(a)(1) is a challenge to the legality of a sentence).

It is well-established that such a claim constitutes a nonwaivable challenge to the legality of the

were not first presented to the PCRA court in ule 1925(b) concise statement as challenges to the legality of the sentence, they cannot be waived.

Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014). Further,

a legality of sentence issue is cognizable in a timely PCRA even if not raised

at sentencing or on direct appeal. Id.; see also 42 Pa.C.S.A. § 9542.

Issues relating to the legality of a sentence are

interpretation of a statute. Our standard of review over such questions is de novo and our scope of review is plenary.

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If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated.

Akbar, supra (internal quotation marks and citations omitted).

Shiffler

is inapt. As we explained in Akbar, Shiffler and related cases precluded

imposition of a second-strike sentence when the predicate first-strike offense

and the second-strike offense occurred in the same criminal episode so that

no intervening opportunity to reform was afforded. Id. at 239-240. The

cooperation of a defendant in entering a first-strike plea or the leniency of a

first-strike sentence do not factor into this analysis as Appellant avers.

As the trial court explains, Appellant was sentenced for robbery,

graded as a first-degree felony, in 2001 and committed the underlying

second-strike offense of aggravated assault in 2004. PCRA Court Opinion,

7/25/08, at 3. The second-

convicted in any court of this Commonwealth of a crime of violence shall, if

at the time of the commission of the current offense the person had

previously been convicted of a crime of violence, be sentenced to a minimum

A. § 9714(a).

Felony robbery is categorized as a crime of violence for the purpose of the

statute. Id. § 9714(g). Accordingly, we agree with the trial court that

enacted to ad

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being meritless, we conclude the PCRA court did not err in dismissing

See Wah, supra.

eal is

Order affirmed. Motion to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/27/2014

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