Com. v. Glass, C.
Opinion
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
*
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.
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).
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,
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)
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).
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)).
11 received
Turner/Finley Letter at 2.
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
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
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
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