Com. v. Mays, L.

• Court: Superior Court of Pennsylvania
• Decided: December 20, 2021
• Docket: 471 MDA 2021
• Status: Unpublished

Opinion

J-S34011-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LLOYD GEORGE MAYS : : Appellant : No. 471 MDA 2021

Appeal from the PCRA Order Entered April 6, 2021 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000643-2011

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED: DECEMBER 20, 2021

Appellant Lloyd George Mays appeals from the Order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-46. After careful review, we affirm.1

The Commonwealth charged Appellant in March 2011 with numerous

offenses arising from violent assaults, including rape and involuntary deviant

sexual intercourse, that he committed on March 25, 2011, and again on March

26-27, 2011.2 In 2012, Appellant waived his right to counsel after a thorough

colloquy and proceeded to a jury trial with stand-by counsel. The jury ____________________________________________

1 Appellant filed the PCRA petition underlying this appeal within one year of the partial grant of his second PCRA petition which resulted in resentencing. Thus, for purposes of addressing issues pertaining to the resentencing, we consider this PCRA petition to be his first; however, with respect to any other issues, it is his third PCRA Petition. See discussion, infra.

2 The victim was Appellant’s then-66-year-old mother with whom Appellant lived. J-S34011-21

convicted Appellant and the court imposed a lengthy sentence. On November

28, 2012, the trial court partially granted Appellant’s post-sentence motion

and modified the sentence, imposing an aggregate term of incarceration of

23½ to 62 years.3 On November 19, 2013, this Court affirmed the judgment

of sentence, and Appellant did not seek further review from the Pennsylvania

Supreme Court. Commonwealth v. Mays, No. 480 MDA 2013, 2013 WL

11250255 (Pa. Super. 2013).

Appellant filed his first PCRA petition in 2014, alleging trial counsel

provided ineffective assistance by failing to file a petition for allowance of

appeal with the Pennsylvania Supreme Court. The PCRA court denied relief.

Appellant’s second PCRA petition, filed in January 2016, challenged,

inter alia, the legality of his sentence based on an inaccurate prior record

score. The court held a hearing at which the parties entered a stipulation that

the correct prior record score was 3 and not 4 as was applied at sentencing.

The PCRA court granted relief in part, and resentenced Appellant with a correct

prior record score on September 7, 2016, to an aggregate term of 22 to 62

years’ incarceration. Appellant did not appeal.

On April 17, 2017, Appellant filed the instant petition challenging the

adequacy of his trial counsel waiver colloquy and contending the court should

have merged his simple assault conviction with his rape convictions at the

resentencing proceeding. The court appointed counsel that same day. The ____________________________________________

3 The modification included a merger of one count of involuntary deviate sexual intercourse with one count of rape.

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Commonwealth filed a Response. On December 20, 2017, the court directed

Appellant’s counsel to file a memorandum within 30 days addressing the

Commonwealth’s Motion to Dismiss. Defense counsel did not file the ordered

memorandum.

On January 28, 2019, the PCRA court issued an Order informing the

parties that it intended to dismiss the petition as untimely. On March 18,

2019, the court dismissed the Petition.

Appellant pro se appealed and filed a court-ordered Pa.R.A.P. 1925(b)

Statement asserting, inter alia, that PCRA counsel abandoned him. This Court

remanded for the court to determine if Petitioner’s PCRA counsel had

abandoned him. The PCRA court subsequently granted Appellant’s request for

the appointment of counsel, and on July 24, 2020, the PCRA court entered an

order allowing new counsel to amend Appellant’s 2017 petition.

Counsel filed an amended petition on September 1, 2020, asserting that

(1) the trial court failed to conduct a complete waiver of counsel colloquy and

his previous PCRA counsel provided ineffective assistance by failing to raise

this issue in his prior PCRA petitions; and (2) Appellant’s simple assault and

rape convictions should have merged for sentencing purposes at the 2016

resentencing hearing.

The court held a hearing on the amended third PCRA Petition on

November 13, 2020, at which the parties presented no evidence. 4 Following ____________________________________________

4The record contains no transcript of this proceeding and the docket contains no entries indicating that a transcript had been requested.

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briefing by the parties, the court denied relief. Tr. Ct. Op., dated April 6,

2021.

Appellant timely appealed. He filed a Pa.R.A.P. 1925(b) Statement and

the court submitted an Order in response, relying on its April 6, 2021 Opinion.

Appellant raises the following issues for our review:

a. Whether the PCRA Court erred in denying the Appellant’s Amended PCRA Petition regarding the alleged improper on-the- record colloquy of the Appellant’s wa[iv]er of counsel?

b. Whether the PCRA Court erred in denying the Appellant’s Amended PCRA Petition regarding the failure to merge the Simple Assault conviction with the conviction for Rape at the time of Sentencing?

Appellant’s Br. at 7.

We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if the record

supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.

2007). We give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

Before we consider the issues raised in Appellant’s brief, we must

determine whether we have jurisdiction to do so. To obtain relief under the

PCRA, a petitioner must plead and prove that the conviction or sentence

resulted from, inter alia, a violation of the United States or Pennsylvania

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Constitutions or ineffective assistance of counsel. 42 Pa.C.S. § 9543(a)(2).

“[A] petitioner does not have an absolute right to collateral review and is not

afforded review of claims previously litigated or waived.” Commonwealth v.

Lesko, 15 A.3d 345, 361 (Pa. 2011) (citing 42 Pa.C.S. § 9543(a)(3),

9543(a)(4). Further, an issue is waived if “the petitioner could have raised it

but failed to do so before trial, at trial, [] on appeal or in a prior state post-

conviction proceeding.” 42 Pa.C.S. § 9544.

A PCRA petition must be filed within one year from the date the

judgment of sentence became final unless it meets one of the enumerated

timeliness exceptions. Id. at § 9545(b)(1) and (b)(1)(i-iii). This Court is

without jurisdiction to review the merits of claims raised in an untimely PCRA

petition. Commonwealth v. Sanchez, 204 A.3d 524, 526 (Pa. Super. 2019).

Issue 1 – Adequacy of trial counsel waiver colloquy

Appellant challenges the adequacy of the colloquy conducted prior to his

waiving his right to trial counsel. Appellant’s Br. at 15.

A challenge to the adequacy of a waiver colloquy must be raised at the

time of the colloquy or on direct appeal. Commonwealth v. Miller, 987 A.2d

638, 661 (Pa. 2009). As noted above, “an issue is waived if the petitioner

could have raised it but failed to do so . . . on appeal[.]” 42 Pa.C.S. § 9544(b).

Relevant to the procedural history of this case, we note that “a successful . .

. PCRA petition does not ‘reset the clock’ for the calculation of the finality of

the judgment of sentence for purposes of the PCRA where the relief granted

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in the . . . petition neither restored a petitioner’s direct appeal rights nor

disturbed his conviction[.]” Commonwealth v. McKeever, 947 A.2d 782,

785 (Pa. Super. 2008) (citation omitted). Thus, a new PCRA petition filed

after resentencing cannot raise issues relating to the underlying guilt phase;

rather, the issues raised in a post-resentencing PCRA petition must pertain

only to what occurred at the resentencing. Lesko, 15 A.3d at 371.

Here, the PCRA court did not reinstate Appellant’s direct appeal rights

nunc pro tunc when it granted partial relief to allow resentencing. That partial

relief did not “reset the clock” to allow Appellant to raise claims that should

have been raised on direct appeal or in a timely-filed PCRA petition.

Accordingly, Appellant’s challenge to the adequacy of his pre-trial waiver

colloquy is waived.5

Issue 2 – Merger of simple assault and rape

____________________________________________

5 Appellant also asserts that prior PCRA counsel provided ineffective assistance by failing to challenge his counsel waiver colloquy. See Appellant’s Br. at 18- 19. Allegations of ineffective assistance do not overcome the jurisdictional timeliness requirements of the PCRA. Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005). Therefore, we are without jurisdiction to address this claim.

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Appellant’s second issue pertains to his 2016 resentencing. He asserts

that his conviction of simple assault6 merged with one of his two rape7

convictions for purposes of sentencing. Appellant’s Br. at 17-18. This claim

presents a challenge to the legality of his sentence. Commonwealth v.

Baldwin, 985 A.2d 830, 833 (Pa. 2009). This Court may address it in the

context of the PCRA if it is raised in a timely-filed petition. Commonwealth

v. Jones, 932 A.2d 179, 183 (Pa. Super. 2007).

Here, Appellant’s resentencing occurred on September 7, 2016.

Appellant raised his legality of sentence issue on April 17, 2017, in the instant

PCRA Petition filed within one year of the resentencing date. Accordingly, this

Court has jurisdiction to address the merits of his claim.

In addressing a challenge to the legality of sentence, our standard of

review is de novo and the scope of our review is plenary. Baldwin, supra, at

833.

As provided by our legislature, crimes merge for the purposes of

sentencing if the “crimes [arose] from a single criminal act and all of the

statutory elements of one offense are included in the statutory elements of

the other offense.” 42 Pa.C.S. § 9765. Thus, relevant to this case, simple

618 Pa.C.S. § 2701(a)(1) (”a person is guilty of assault if he [ ] attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another[.]”).

718 Pa.C.S. § 3121(a)(1) (defining rape as “sexual intercourse … by forcible compulsion”).

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assault and rape will merge if the charges arose from the same act. See

Commonwealth v. Simpson, 462 A.2d 821, 825 (Pa. Super. 1983)

(observing that “if a simple assault is used to overcome the volition of a rape

victim and force her submission, the assault and the rape would be a single

act.”).

Here, the PCRA court, which also sat as the trial court, concluded that

Appellant’s “actions constituted two separate criminal acts and therefore he is

not entitled to merger of the Simple Assault and Forcible Rape charges.” Tr.

Ct. Op., 4/6/21, at 12. In support, the court set forth a summary of the facts

before concluding:

[This] brief analysis of the events that occurred on the night in question clearly establishes that [Appellant] committed two distinct criminal acts separated by Victim’s attempt to change into her night-time clothing. The Simple Assault occurred prior to that when [Appellant] slapped and bit Victim. The rape offenses occurred after Victim [went into the bathroom and changed into her pajamas, then returned to her bedroom where Appellant] forcibly engaged in sexual intercourse with Victim. Although the offenses did occur over a short time frame, it is clear that [Appellant’s] actions constituted two separate criminal acts and therefore he is not entitled to merger of the Simple Assault and Forcible Rape charges.

Id. at 11-12. See also N.T., 3/6/2012, at 13-45 (testimony of victim).

Our review of the record and relevant case law supports the PCRA

court’s concise summary and its well-reasoned analysis that these were two

distinct criminal acts and did not merge for sentencing purposes. We, thus,

conclude the PCRA court did not abuse its discretion or err as a matter of law

in dismissing Appellant’s petition.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/20/2021

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