J-S18035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v.
RICO MANDRELL HERBERT
Appellant No. 2974 EDA 2016
Appeal from the PCRA Order August 22, 2016 in the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0001359-2012
BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 17, 2017
Appellant, Rico Mandrell Herbert, appeals from the order entered in
the Monroe County Court of Common Pleas denying his timely Post
Conviction Relief Act1 (“PCRA”) petition. Appellant contends that his trial
counsel was ineffective for failing to file a petition for allowance of appeal
with the Pennsylvania Supreme Court. We affirm.
We adopt the facts and procedural history set forth in the trial court’s
opinion. See Trial Ct. Op., 3/31/16, at 1-3. On April 7, 2014, Appellant pled
guilty to third-degree murder, robbery of a motor vehicle, and abuse of a
corpse. Appellant was immediately sentenced to twenty to forty years’
imprisonment for third-degree murder, ten to twenty years’ imprisonment
* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J-S18035-17
for robbery of a motor vehicle, and one to two years’ imprisonment for
abuse of a corpse, all sentences to run consecutively. Appellant filed a
timely post-sentence motion, seeking reconsideration of his sentence and an
adjustment in his time credit. The trial court granted the motion for a time
credit but denied the motion for reconsideration. Appellant filed a timely
direct appeal challenging the discretionary aspects of his sentence. This
Court affirmed his judgment of sentence on February 12, 2015.
Commonwealth v. Herbert, 1710 EDA 2014 (Pa. Super. Feb. 12, 2015)
(unpublished memorandum). A petition for allowance of appeal with the
Pennsylvania Supreme Court was not filed.
On February 12, 2016, Appellant timely filed a pro se PCRA petition.
Thereafter, the PCRA court appointed PCRA counsel. The trial court
conducted a hearing on June 28, 2016, wherein PCRA counsel indicated
Appellant’s sole issue for PCRA review was his appellate counsel’s failure to
file a petition for allowance of appeal with the Supreme Court of
Pennsylvania. The PCRA court denied Appellant’s petition on August 22,
2016. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement and the
PCRA court filed a responsive opinion.
Appellant raises the following issue for our review:
Did the Court commit error by finding that [Appellant’s] counsel was effective despite having failed to file a petition for allocatur with the Supreme Court of Pennsylvania despite [Appellant’s] wish to exhaust his appellate rights?
Appellant’s Brief at 3.
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Appellant argues that his appellate counsel was ineffective for failing to
file a petition for allowance of appeal to the Pennsylvania Supreme Court
after this Court declined to grant him relief on direct appeal. Appellant’s
Brief at 7-10. Appellant specifically emphasizes that appellate counsel
revealed, during his hearing testimony, that counsel could not recall whether
Appellant had requested an appeal to the Supreme Court of Pennsylvania
but that Appellant probably wanted an appeal. Id. at 9. Therefore,
Appellant contends that his appellate counsel was ineffective for failing to
file such appeal and his appellate rights should be reinstated. Id. at 10. We
conclude that no relief is due.
We begin by noting our standard of review
[A]n appellate court reviews the PCRA court’s findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error. The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level.
Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super.), appeal
denied, 104 A.3d 523 (Pa. 2014) (citation omitted).
As to claims of ineffectiveness, it is well settled that:
[c]ounsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel’s performance was deficient and that such deficiency prejudiced him. In Pennsylvania, we have refined the Strickland [v. Washington, 466 U.S. 668 (1984)] performance and prejudice test into a three-part inquiry. Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable
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merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. If a petitioner fails to prove any of these prongs, his claim fails.
Id. (some citations omitted).
Critically, we note that this Court has held that where an appellant
raises only discretionary sentencing issues on appeal, and this Court has
affirmed the appellant’s sentence, “counsel is not per se ineffective in not
seeking a discretionary appeal.” Commonwealth v. Rigg, 84 A.3d 1080,
1088 (Pa. Super. 2014). Indeed, the Pennsylvania Supreme Court is
generally statutorily precluded from reviewing this Court’s affirmance of a
discretionary sentencing challenge absent additional factors. Id. at 1089;
42 Pa.C.S. § 9781(f). Such additional factors may include “whether this
Court properly applied the correct standard of review, accurately interpreted
governing precedent or statutory law, or erred in its legal conclusion that a
claim does not present a substantial question for review.” Id.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Margherita
Patti-Worthington, we conclude Appellant’s issue merits no relief. The PCRA
court’s opinion comprehensively discusses and properly disposes of the
argument presented. See Trial Ct. Op. at 3-9 (finding that Appellant failed
to establish that his appellate counsel’s failure to file a petition for allowance
of appeal with the Pennsylvania Supreme Court caused Appellant to suffer
prejudice where Appellant’s sole issue on appeal concerned the discretionary
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aspects of his sentence and Appellant failed to establish the issues on which
he would seek allowance of appeal were non-frivolous). Accordingly, we
affirm on the basis of the trial court’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/17/2017
-5- Circulated 05/05/2017 05:16 PM
~·· r
COURTOFCOMMONPLEASOFMONROECOUN1~ FORTY-THIRD JUDICIAL DISTRICT COl'\'HvfON\VEALTH OF PENNSYLVANIA
COMlVfON\VEALTH OF PENNSYLVANIA No. 1359 CR 2012
v.
POST-CONVICTION RICO rvIANDRELL HERBERT, Defendant RELIEF ACT PETITION
OPINION
This matter comes before the Court on Rico Mandrell Herbert's ("Defendant") Petition
for relief under the Post-Conviction Relief Act, 42 Pa. C.S.A. §§ 9541-9546, in which Defendant
claims his appellate counsel provided ineffective assistance for failing to file a petition for
allocatur with the Pennsylvania Supreme Court.1 \Ve summarize the facts and procedural history
as follows:
On April 17, 2012, Defendant was charged by Criminal Complaint with various charges,
including Criminal Homicide,2 related to the robbery and death of Joseph De Vivo, Sr. On
February 23, 2012: Defendant entered Mr. DeVivos home with the intent to take items of value.
Defendant's presence startled Mr. De Vivo, who was getting ready for bed at the time. Mr.
DeVivo began yelling at Defendant and Defendant, in an effort to quiet Mr. De Vivo, pulled Mr.
DeVivos t-shirt over his head, which smothered and killed him. Defendant then placed the body
in the trunk of Mr, DeVivo's vehicle and left. Defendant drove Mr. DeVivo's vehicle, with his
body in the trunk, to a girlfriend's house and then to a motel. After spending the night with a
I Defendant originally filed a prose PCRA Petition wherein he alleged several acts of ineffective assistance of trial
and appellate counsel. We appointed the Monroe County Public Defender's Office to represent Defendant and granted leave for appointed counsel to file an Amended PCRA Petition. Rather than filing an Amended Petition, counsel instead indicated at the hearing that the only issue Defendant would be pursing was the failure of his appellate counsel to file a petition for allocatur with the Pennsylvania Supreme Court. This decision was reinforced in the parties' briefs and so we will not address Defendant's other prose issues. 2 ! 8 Pa. C.S.A § 250 I (a).
,\v· ·"t'' -.-1 - Herbert, 1359 CR 2012
different girlfriend at the motel. Defendant drove to South Carolina where he dumped Mr.
DeVivos body in a swampy ravine, mere miles from Defendant's mother's home. Defendant
was eventually apprehended in North Carolina and transported back to Pennsylvania, where he
fabricated various stories about what happened and why he was in possession of Mr. De Vivo' s
vehicle.
On May 17, 2012, the Commonwealth filed a Notice to Seek Death Penalty, alleging the
aggravating circumstance that the homicide was committed during the commission of a felony.
On, April 7, 2014, the day of jury selection, Defendant pled guilty to Third-Degree Murder,
Robbery of a Motor Vehicle, and Abuse of a Corpse. Defendant was immediately sentenced to
an aggregate term of 31 to 62 years: 20 to 40 years for Third-Degree Murder, 10 to 20 years for
Robbery of a Motor Vehicle, and 1 to 2 years for Abuse of a Corpse, all to run consecutively.
Defendant was represented during this time by Attorneys Thomas Sundmaker and John Waldron.
On April 16, 2014, Defendant, through counsel, filed post-sentence motions seeking a
reconsideration of his sentence and an adjustment in his time credit. This Co mt granted
Defendant's motion for time credit but denied his motion for reconsideration of sentence. On
May 23, 2014, Defendant, through Attorney Sundrnaker, filed an appeal to the Superior Court.
The only issue raised on appeal was "[wjhether the trial court abused its discretion by sentencing
[Defendant] outside the Guidelines, when such sentences were the maximum allowable under the
statute without considering relevant sentencing factors and without stating adequate reasons for
its sentence." Commonwealth v. Herbert, 2015 \VL 7587816 at *4 (Pa. Super. February 12,
20 l 5)(unreported). On February 15, 2015, the Superior Court affirmed this Court's sentence. Id.
at *I. Neither Defendant nor Attorney Sundmaker filed a petition for allocatur with the
Pennsylvania Supreme Court.
2 Herbert. 1359 CR 2012
Defendant filed the present PCRA on February 12, 2016. \\le appointed counsel and held
a hearing on said Petition on June 28, 2016. After review of the record and the testimony from
the hearing, we are ready to dispose of this matter.
DISCUSSION
Preliminarily, we find that Defendant's Petition bas been timely filed and meets the
relevant criteria for filing a PCRA Petition. See 42 Pa. C.S.A. §§ 9534(a), 9545(b)(l).
Accordingly, we have jurisdiction to hear the merits. See Commonwealth v. Robinson, 83 7 A.2d
1157, 1161 (Pa. 2003).
Defendant's sole issue for our consideration is whether Attorney Sundmaker was
ineffective for failing to file a petition for allocatur with the Pennsylvania Supreme Court. Def. 's
Br., p. 2. In his brief, Defendant argues that his sentence was an illegal sentence and that by not
filing a petition for allocatur, Attorney Sundmaker provided ineffective assistance. Def. 's Br., p.
3. Further, Defendant avers that Attorney Sundmaker admitted at the PCRA hearing that he did
not consult with Defendant about his options following the Superior Cami's affirmance of his
judgment of sentence. Def. 's Br., p. 4. Ultimately, Defendant seeks the reinstatement of his
appellate rights, nunc pro tune. Def.'s Br., p. 4.
The Commonwealth responds that because Defendant's sole issue on appeal challenged
the discretionary aspects of his sentence, Attorney Sundmaker did not provide ineffective
assistance when he failed to file a petition for allocatur. Com. 's Br., p. 4. The Commonwealth
relies on Commonwealth v. Rigg, 84 A.3d I 080 (Pa. Super. 2014 ), to supports its argument.
Com.'s Br .. p. 4. The Commonwealth avers that the only issue Defendant raised on direct appeal
to the Superior Court, and thus the only issue he could have raised to the Supreme Court,
concerned the discretionary aspects of his sentence-an issue which will not be reviewed by the
3 Herbert. l359 CR 2012
Pennsylvania Supreme Court. Com.ls Br .. pp. 4-6 (citing 42 Pa. C.S.A. § 9781 (fj). Moreover,
the Commonwealth notes that Attorney Sundmaker testified credibly at the hearing that he
consulted with Defendant about the Superior Court's decision and what his options were. Com.'s
Br., p. 6 n.4.
A defendant has the burden of proof for PCRA claims by a preponderance of the
evidence. See 42 Pa'. C.S.A. § 9543(a). Defendant's issue herein raises ineffectiveness of
appellate counsel. In order to prove ineffective assistance of counsel, Defendant's claim must
pass all three prongs of the Pierce test: ( 1) the underlying issue must be of arguable merit; (2)
counsel's act or omission must not have had a reasonable basis in effectuating Defendant's
interests; and (3) counsel's ineffectiveness must have worked to Defendant's prejudice.
Commonwealth v. Pierce, 645 A.2d 189, 194-95 (Pa. 1994) (citation omitted). "A failure to
satisfy any one prong of the test for ineffectiveness will result in this Court's rejection of the
claim." Co111111011wealth v. Bishop, 936 A.2d 1136, 1139 (Pa. Super. 2007) (citation omitted). The
third prong of the Pierce test-prejudice-is proven if the Defendant shows "that but for the act
or omission in question, the outcome of the proceedings would have been different." Id.
( quotation omitted). Similarly, "[i ]fa reasonable basis exists for the particular course chosen by
counsel, the inquiry ends and counsel's performance is deemed constitutionally effective."
Commonwealth v. Abdul-Salaam, 808 A.2d 558, 561 (Pa. 200 l) (citation omitted).
Generally, a defendant has a right to effective counsel throughout his direct appeal. See
Pa.R.Crim.Pro. 122(8)(2); Commonwealth v. Liebel, 825 A.2d 630, 633 (Pa. 2003)(citing
Commonwealth r. Daniels, 420 A.2d 1323 (Pa. 1980)). While appeal to the Supreme Court is a
matter of judicial discretion and not a matter of right, see Pa.RAP. l 114(a), a defendant can
establish prejudice for failure to file allocatur in certain circumstances. After the Superior Court
4 Herbert. 1359 CR 20 I 2
renders a decision, a defendant has a right lo effective consultation regarding the filing of a
petition for allocatur with the Pennsylvania Supreme Court and failure to receive said
consultation would result in prejudice. See Commonwealth v. Gadsden, 832 A.2d 1082, l 088
(Pa. Super. 2003). Additionally, if a defendant requests a petition for allocatur to be filed on his
behalf, he has a right to effective representation on that petition and it is per se ineffective
assistance for counsel to fail to file that petition. See Commonwealth v. Reed, 971 A.2d 1216,
1225 (Pa. 2009). If the record is devoid of a defendant's request for allocatur, he may still have a
cognizable PCRA claim if he proves any issues he sought to take to the Supreme Court "rose
'above frivolity."' Commonwealth v. Rigg, 84 A.3d 1080, 1088 (Pa. Super. 2014)(quoting
Connnonwealth v. Bath, 907 A.2d 619, 624 (Pa. Super. 2006)); see also Gadsden, 832 A.2d at
l 085-86 (citing Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003)).
"(B]ecause the Pennsylvania Supreme Court is generally statutorily precluded from
reviewing a defendant's discretionary sentencing claim," see 42 Pa. C.S.A. § 9781(£), the
Superior Court has held that "counsel [is] not per se ineffective in not seeking a discretionary
appeal after [the Superior Court] affirmed (a] sentence where that was the lone issue ... to be
reviewed." Rigg, 84 A.3d at l 088. There are times where the Supreme Court will grant allocatur
on discretionary issues of sentencing. See id at l 088-89. However, where a defendant raises
only discretionary sentencing issues on appeal and the Superior Court affirms the trial court's
sentence, the Supreme Court will not grant allocatur. See id Indeed, "§ 9781 (f) would be
rendered meaningless if the High Court could review [the Superior Court's] affirrnance of a
discretionary sentencing challenge absent ... additional factors." Id. at 1089.
In Rigg. the Superior Court noted that "[Rigg's] argument herein centers around whether
his sentence was excessive and whether the trial court placed adequate reasons for its sentence
5 Herbert. 1359 CR 2012
on the record." Id The Court found that Rigg· s counsel was not per se ineffective for failing to
file allocatur after consultation with Rigg, however, the Court did not decide a P;erce-based
claim of ineffectiveness. Id. at I 090 n. 9. In a footnote, the Court stated it would not reach the
merits of such a claim because Rigg had not raised it. Id.
The Commonwealth argues, inter aha, that R;gg precludes this Court from granting
Defendant's requested relief. Com.'s Br., p. 5. The issue decided in Defendant's direct appeal
was whether this Court abused its discretion when we imposed a departure sentence for Robbery
of a Motor Vehicle.3 Herbert, 2015 \VL 7587816 at *4. Therefore, Defendant's sole issue on
appeal challenged the discretionary aspects of this Court's sentence. See id. at *5 (citing
Commonwealth v. Lutes, 793 A.2cl 949 (Pa. Super. 2002)). As the Superior Court has held failure
to file allocatur under these circumstances does not constitute ineffectiveness per se, the
Commonwealth is correct in that Defendant has not presented sufficient evidence to warrant
relief under R;gg. Rigg, 84 A.3d at 1089. However, Rigg does not foreclose PCRA relief under
traditional Pierce standards. Rigg, 84 A.3d at 1090 n.9. Thus, our inquiry does not end here and
we must now conduct a Pierce analysis to determine whether Defendant's relief should be
granted.
A defendant can show prejudice for counsel's failure to file allocatur in three situations.
First, if a defendant does not receive effective consultation about his options following a
Superior Court decision, he has shown prejudice. See Gadsden, 832 A.2d at 1087. In the present
3 First, we note that part of the Superior Court's decision was that Defendant had waived his challenge to the sentence imposed on the Abuse of a Corpse charge. Herbert, 2015 WL 7587816 at *7 n.4. The Court also found that despite this waiver, Defendant's claim lacked merit nonetheless. Id at * 13 n.5. Second, we understand Defense counsel has characterized Defendant's appellate issues as challenging the legality of Defendant's sentence. Def. 's Br., p. 2-3. However, that was not the argument to the Superior Court on direct appeal. Herbert, 2015 WL 7587816 at *4. In his PCRA Petition, Defendant only seeks to have his appellate rights from the Superior Court's decision in February of 20 I 5 reinstated, m111c pro tune. See Def. 's Br., p. 4. Thus, we only consider the appellate issues raised therein. See Rigg, 84 A.3d at I 086-89 (showing the determination of ineffectiveness for failing to file allocatur stems from the issues raised before the Superior Court on direct appeal).
6 Herbert. 1359 CR 2012
case, Attorney Sundmaker credibly testified that he consulted with Defendant after the Superior
Court's decision. We recognize that Defendant avers Attorney Sundrnaker "admitted at the
PCRA hearing that he did not consult with [Defendant] about his options after the Superior Court
denied his appeal." Def,'s Br., p. 4. However, our recollection of Attorney Sundmaker's
testimony is that he did speak with Defendant about his options following the Superior Court
decision. While Attorney Sundmaker.was unsure whether he communicated these options in
person, over the phone, or by letter, we have no reason to doubt that Attorney Sundmaker did
discuss the available options with Defendant." Thus, Defendant has not shown prejudice under
the Gadsden standard. The second way a defendant can show prejudice for failure to file allocatur is if there is
evidence showing the defendant requested a petition be filed. See Reed, 971 A.2d at 1225 (citing
Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003)). If the record shows the defendant made
such a request, then the attorney who failed to file for allocatur is per se ineffective. Id. Attorney
Sundmaker testified that he did not specifically remember whether Defendant requested a
petition for allocatur, but he believed Defendant would have wanted one filed. We find that such
testimony does not amount to proof by a preponderance that Defendant requested a petition for
allocatur. See 42 Pa. C.S.A. § 9543(a) (stating a defendant has the burden of proof by a
preponderance of the evidence for all PCRA claims). Thus, Defendant has not shown prejudice
under the Reed standard.
4 At the hearing, Attorney Sundmaker also testified that as appointed counsel, he would be unable to file for allocatur on Defendant's behalf without first petitioning this Court. We are unaware of any rule or case that dictates appointed counsel cannot tile for allocatur on behalf on an indigent defendant without first petitioning the Court of Common Pleas. In fact, as we have stated above, the law indicates, without distinction, that a defense attorney's failure to file a requested petition for allocator is per se ineffective assistance. Reed, 97 I A.2d at 1225. Moreover, Pennsylvania Rules of Criminal Procedure mandate that "the appointment [of counsel) shall be effective until final judgment, including any proceedings upon direct appeal." Pa.R.Crim.Pro. 122(8)(2) (emphasis added). However, Defendant has not raised this as an issue in his brief and as we find Defendant would not be entitled to relief regardless. we need not elaborate on this issue. 7 Herbert. 1359 CR 2012
Finally. a defendant can show prejudice even where there is no evidence he requested a
petition for allocatur so long as the issues he seeks to appeal would "[rise] 'above frivolity.":
Rigg, 84 A.3d al 1088 (quoting Commonwealth v. Bath, 907 A.2d 619, 624 (Pa. Super. 2006)).
Generally, the Pennsylvania Supreme Court may not grant allocatur when the only issues on
appeal challenge the discretionary aspects of sentencing. 42 Pa. C.S.A. § 9781 (f). However, the
Supreme Court has granted allocatur to these types of issues when other factors are present. For
example, when the Co111111011wealth appeals discretionary aspects of sentencing, the Supreme
Court has granted allocatur. Rigg, 84 A.3d at 1088 (citing Commonwealth v. Perry, 32 A.3d 232
(Pa. 2011)). Similarly, where the Superior Court has reversed a discretionary sentence for being
too lenient, the Supreme Court will allow an appeal. Id. at 1088-89 ( citing Commonwealth v.
Smith, 673 A.2d 893 (Pa. 1996)). Most relevant to the present case, where the Superior Court
finds a defendant has failed to establish a substantial question which would allow appeal of the
discretionary aspects of his sentence, the Supreme Court has granted allocatur to review whether
the Superior Court applied the correct legal principals in rendering that decision. Id. at 1089
( citing Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002)). The Superior Court has recognized
that under this standard, where the Superior Court has ruled a sentencing issue was waived, the
Supreme Court would also likely grant allocatur. Id ("Similarly, a decision by [the Superior]
Court finding that a discretionary sentencing claim was waived or was not waived would be
reviewable. ").
In Defendant's case, the Superior Court found that Defendant had presented a substantial
question that warranted review of the discretionary aspects of this Cou11 's sentence for Robbery
of a Motor Vehicle. Herbert, 2015 WL 7587816 at *7. Defendant's appellate issue for the
Robbery sentence is strictly a discretionary sentencing issue and is not an issue for which the
8 Herbert. 1359 CR 2012
Supreme Court would grant allocatur, Id. at ,:,5; see also 42 Pa. C.S.A. ~ 978l(f). Additionally,
the Superior Court also found that Defendant had waived his appellate issue on the sentence he
received for Abuse of a Corpse. Herbert, 2015 WL 7587816 at ,:,7_ According to R;gg, the
Supreme Court might grant allocatur on the issue of whether Defendant waived the claim
regarding his sentence for Abuse of a Corpse. Rigg, 84 A.3d at l 089. However, as the Superior
Court also found this claim would fail on the merits, Herbert, 2015 \VL 7587816 at * 13 n.5,
Defendant has not shown his appellate issues would rise above frivolity. See Commonwealth v.
Bath, 907 A.2d 619, 623-24 (Pa. Super. 2006). Thus, Defendant has failed to meet the prejudice
prong of the Pierce test and his Petition must be denied. Bishop, 936 A.2d at 1139.
Accordingly, we enter the following Order: