Com. v. Presley, L.

• Court: Superior Court of Pennsylvania
• Decided: September 14, 2023
• Docket: 2032 EDA 2021
• Status: Unpublished

Opinion

J-S03028-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LYNN PRESLEY : : Appellant : No. 2032 EDA 2021

Appeal from the PCRA Order Entered September 24, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1113641-1998

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LYNN PRESLEY : : Appellant : No. 2033 EDA 2021

Appeal from the PCRA Order Entered September 24, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1113831-1998

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 14, 2023

Lynn Presley appeals from the orders entered in the Philadelphia County

Court of Common Pleas dismissing his second petition filed pursuant to the

Post Conviction Relief Act (PCRA),1 seeking relief from his violation of

____________________________________________

1 42 Pa.C.S. §§ 9541-9545. J-S03028-23

probation (VOP) sentence after entering guilty pleas at two dockets.2 On

appeal he alleges his sentence of 12 to 24 years’ incarceration imposed after

a violation of his probation was excessive and prior PCRA and appellate

counsel was ineffective. Counsel for Appellant filed a letter brief and motion

to withdraw as counsel pursuant to Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1998). We affirm.

We glean the following underlying facts and procedural history from a

prior decision of this Court:

This matter arises out of Appellant’s involvement in two separate criminal cases in Philadelphia County. At [Docket 3641], Appellant pleaded guilty to robbery, terroristic threats, simple assault, and contempt of court. At [Docket 3831], he pleaded guilty to theft by unlawful taking, simple assault, and contempt of court. On January 7, 2000, the [trial court] sentenced Appellant to an aggregate term of [11 and one half to 23 months’] incarceration followed by five years of reporting probation. Appellant was granted immediate parole.

Due to technical violations of Appellant’s probation requirements[, the VOP court] revoked his probation at a [VOP] hearing on March 30, 2001. [The VOP court] resentenced him to the same term of [11 and one half to 23 months’] incarceration followed by five years of reporting probation.

Based on an undercover police investigation [from October through December of 2004], Appellant was charged in ____________________________________________

2 On January 7, 2000, at Criminal Docket CP-51-CR-1113641-1998 (Docket

3641), Appellant plead guilty to one count each of theft, simple assault, and contempt of court. See 18 Pa.C.S. §§ 3921(a), 2701(a); 23 Pa.C.S. § 6114. That same day, Appellant plead guilty at Criminal Docket CP-51-CR-1113831- 1998 (Docket 3831), to one count each of robbery, terroristic threats, simple assault, and contempt of court. See 18 Pa.C.S. §§ 3701, 2706(a).

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Montgomery County on March 1, 2005, with multiple theft crimes[.] Six months later at a bench trial on September 13, 2005, [a Philadelphia trial court] found Appellant guilty of various [unrelated] drug charges and conspiracy[.] Due to Appellant’s intervening criminal conduct, [the VOP court then] held a VOP hearing on November 16, 2005, where [it] heard testimony regarding the Montgomery County charges and the Philadelphia County drug offenses. Noting this was Appellant’s second VOP hearing, [the VOP court] revoked Appellant’s probation and sentenced him to an aggregate term of [12 to 24 years’] incarceration[.]

Appellant filed a timely post-sentence motion[. The VOP court] granted the motion and vacated [the 12 to 24 year] sentence. Following numerous continuances requested by Appellant in order to [ultimately unsuccessfully] negotiate a deal with the Montgomery County District Attorney, [the VOP court] conducted a hearing on December 6, 2006, to reconsider Appellant’s revocation of probation sentence. At the reconsideration hearing, the Commonwealth explained that it would nolle prose Appellant’s [Philadelphia] drug convictions “in favor of judicial economy” if [the VOP court] decided to re-impose the [12 to 24 year] sentence. After hearing argument from counsel and Appellant’s statement, [the VOP court] re-imposed the . . . sentence of [12 to 24 years’] incarceration[.] On the same day, the Commonwealth nolle prossed Appellant’s drug convictions. Appellant did not file post-sentence motions or a direct appeal.

[In August of 2007, Appellant filed a PCRA petition] seeking reinstatement of his post-sentence and direct appeal rights nunc pro tunc because counsel failed to file post-sentence motions or a direct appeal from the December 6, 2006[,] sentence. . . . The PCRA court [granted his petition and] reinstated [his] direct appeal rights nunc pro tunc on February 4, 2011.

Commonwealth v. Presley, 193 A.3d 436, 438-39 (Pa. Super. 2018)

(citation omitted).

In his direct appeal, Appellant argued his sentence was “harsh and

excessive” and the VOP court did not consider the sentencing factors or

explain its reasons for imposing the sentence. Commonwealth v. Presley,

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554 EDA 2011 (unpub. memo at 5) (Pa. Super. Apr. 23, 2012). The trial

court3 agreed the VOP court failed to provide an explanation for the sentence

it imposed, and “respectfully recommend[ed] that [Appellant’s] sentence be

vacated and the matter remanded for imposition of a new sentence.” See

Presley, 193 A.3d at 440 (citation omitted). On April 23, 2012, another panel

of this Court denied relief, reasoning that Appellant did not preserve this claim

for review, but indicated its ruling was “without prejudice to his rights under

the PCRA to allege trial counsel’s ineffectiveness in failing to file a post-

sentence motion.” Presley, 554 EDA 2011 (unpub. memo. at 7-8). Appellant

filed a petition for review with the Pennsylvania Supreme Court, which was

denied on August 28, 2012. See Commonwealth v. Presley, 221 EAL 2012

(Pa. Aug. 28, 2012).

On December 17, 2012, Appellant filed a timely first PCRA petition,

wherein he alleged VOP counsel was ineffective for failing to preserve his

discretionary aspects of sentencing claim.4 See Presley, 193 A.3d at 442.

The PCRA court dismissed his petition and this Court affirmed the order,

opining the VOP court did not abuse its discretion “[g]iven the facts and history

of [the] case[,]” the court’s “familiarity” with Appellant, and the “highly- ____________________________________________

3 A different trial judge presided over Appellant’s direct appeal than his VOP

proceedings.

4 Appellant filed his December 2012 petition pro se. On January 15, 2015, Peter A. Levin, Esquire, was appointed to represent Appellant. See Appellant’s Amended Petition Under Post-Conviction Relief Act, 7/21/16, at 5. Attorney Levin filed an amended petition on July 21, 2016.

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deferential” standard of review. Id. at 447. Specifically, it noted the VOP

court was “well aware of Appellant’s character, circumstances, and potential

for rehabilitation (or lack thereof).” Id. at 446, citing Commonwealth v.

Pasture, 107 A.3d 21, 28 (Pa. 2014) (“When sentencing is a consequence of

the revocation of probation, the trial judge is already fully informed as to the

facts and circumstances of both the crime and the nature of the defendant . .

.”). Moreover, it concluded Appellant could not establish that counsel’s failure

to file the motion prejudiced him. Id. The Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal on January 29, 2019. See

Commonwealth v. Presley, 366 EAL 2018 (Pa. Jan. 29, 2019).

Appellant filed the present PCRA petition, his second, on September 24,

2019, alleging VOP hearing counsel was ineffective and the VOP court imposed

an excessive sentence. Appellant’s Pro Se Motion for Post Conviction

Collateral Relief, 9/24/19, at 3. On June 24, 2021, the PCRA court issued a

notice of dismissal pursuant to Pa.R.Crim.P. 907. Appellant did not file a

response, but on July 2nd requested the court appoint him counsel. On

September 24, 2021, the court dismissed the petition as untimely and granted

the request for counsel.5 On September 28th, Daniel Anthony Alvarez, Esquire

(Counsel), entered his appearance and filed timely notices of appeal at each

5 The order dismissing Appellant’s September 24, 2019, PCRA petition does

not appear in the record. However, the criminal docket reflects the PCRA court filed such an order on September 24, 2021. See Criminal Docket No. CP-51- CR-1113641-1998, at 20; Criminal Docket CP-51-CR-1113831-1998, at 21.

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docket the next day. On October 28, 2021, this Court sua sponte consolidated

Appellant’s appeals. Order, 10/28/21.

On November 8, 2021, Appellant complied with the PCRA court’s order

to file a concise statement of matters complained of on appeal pursuant to

Pa.R.A.P. 1925(b), alleging appellate counsel was ineffective, his VOP

sentence of 12 to 24 years’ incarceration was excessive, and the VOP court

failed to state its reasons for imposing the sentence on the record. See

Appellant’s Statement of Matters Complained of On Appeal, 11/8/21, at 1

(unpaginated). However, two days later — and one day after the filing

deadline — Appellant filed a supplemental Rule 1925(b) statement raising an

additional claim that his September 2019 petition was timely filed in light of

the Pennsylvania Supreme Court decision Commonwealth v. Bradley, 261

A.3d 381 (Pa. 2021). See Appellant’s Amended/Supplemental Statement of

Matters Complained of On Appeal, 11/10/21, at 2 (unpaginated).

On December 13, 2021, the PCRA court issued an opinion stating: (1)

Appellant waived his argument regarding the timeliness of his petition when

he raised it in an untimely Rule 1925(b) statement; and (2) his remaining

ineffectiveness claim was previously litigated. PCRA Ct. Op.,12/13/21, at 6-

7. Thereafter, Appellant filed an application in this Court to remand the matter

to the PCRA court to address his arguments regarding Bradley. See

Appellant’s Application for Remand to Seek From the Lower Court Permission

to File An Amended/Supplemental Statement of Matters, Nunc Pro Tunc, In

Light of the Recently Decided Pennsylvania Supreme Court Case,

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Commonwealth v. Aaron Bradley, [ ] 12/15/21, at 2-5 (unpaginated). On

January 7, 2022, this Court remanded the case and directed the PCRA court

to address the applicability of Bradley. Order, 1/7/22. The PCRA court filed

a supplemental opinion on May 26, 2022, and shortly thereafter, counsel filed

a Turner/Finley petition to withdraw from representation. This matter now

returns to us on appeal.

We surmise the following claims from Counsel’s Turner/Finley letter

brief:6 (1) Appellant believes his 2006 sentence of 12 to 24 years’

incarceration was excessive; (2) former PCRA counsel, Attorney Levin, was

ineffective; and (3) Appellant’s petition was timely filed under Bradley

because it was “filed within one year of the denial of allocator” of his first PCRA

petition. See Turner/Finley Letter Brief at 8-10.

Preliminarily, we address Counsel’s motion to withdraw as counsel. An

application to withdraw as counsel must comply with the Turner/Finley

requirements:

Counsel petitioning to withdraw from PCRA representation must proceed . . . under [Turner and Finley, and] must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a copy of counsel’s petition to ____________________________________________

6 Counsel did not include a “Questions Presented” section in his letter brief.

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withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted). If this Court determines counsel has satisfied these technical

requirements, we “must then conduct [our] own review of the merits of the

case. If [we] agree[ ] with counsel that the claims are without merit, [we]

will permit counsel to withdraw and deny relief.” Id. (citation omitted).

Here, Counsel has satisfied the above procedural requirements. In his

letter brief, he discusses Appellant’s potential claims, the relevant case law

and supporting documents, and the reasons why the issue is “frivolous.”7

Turner/Finley Letter Brief at 1, 7-19. Counsel purports that Appellant’s

petition is “arguably” timely filed under Bradley since it challenges prior PCRA

counsel’s ineffective assistance and was submitted less than one year after

the Pennsylvania Supreme Court denied review of his 2018 PCRA petition.

See Turner/Finley Brief at 9. However, he explains Appellant is otherwise

7 To withdraw from representation during PCRA proceedings, counsel must comply with Turner/Finley requirements, which dictate a finding that all purported claims are meritless. See Doty, 48 A.3d at 454. Alternatively, when petitioning to withdraw from direct appeal representation, counsel must determine an appellant has no non-frivolous claims. See Anders v. California, 386 U.S. 738, 744 (1967).

Here, Counsel has concluded Appellant’s claims are “frivolous.” See Turner/Finley Letter Brief at 1. Though counsel uses the language specific to an Anders’ petition, his determination substantially complies with the requirements of Turner/Finley. See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (stating Anders provides higher protections than Turner/Finley, and as such, complies with the Turner/Finley standard).

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not entitled to relief because: (1) his discretionary aspects of sentencing claim

was previously litigated in his prior PCRA petition; and (2) Appellant does not

specify “how previous counsel [Attorney Levin] was ineffective and how such

ineffectiveness caused . . . Appellant prejudice[.]” Id. at 10; see also

Presley, 193 A.3d at 446-47. Counsel indicated in his motion to withdraw he

served a copy of the motion and Turner/Finley letter brief on Appellant, and

informed him that he may retain new counsel or proceed pro se. Motion to

Withdraw as Counsel, 8/12/22, at 2; Turner/Finley Letter Brief at 2, Ex. A.

Thus, he has complied with the requirements of Turner/Finley. See Doty,

48 A.3d at 454. Appellant has not filed a response to counsel’s motion to

withdraw or letter brief. Accordingly, we proceed to conduct an independent

review of the record to determine if the appeal lacks merit.

Our review of an order denying PCRA relief is well-established. “[W]e

examine whether the PCRA court’s determination is supported by the record

and free of legal error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283-

84 (Pa. 2016) (citation & quotation marks omitted). Here, the PCRA court

determined Appellant’s second petition was untimely filed and Bradley is not

applicable.8 PCRA Ct. Supp. Op., 5/26/22, at 6-7. We agree. ____________________________________________

8 It appears the PCRA court has misconstrued Appellant’s argument as to which prior counsel he claims was ineffective. See PCRA Ct. Supp. Op. at 6- 7 (stating Appellant raises an ineffectiveness claim against trial/VOP counsel). Appellant’s PCRA petition and present Counsel’s Turner/Finley letter brief each raise an ineffectiveness claim against Appellant’s prior PCRA counsel Attorney Levin. See Appellant’s Pro Se Motion for Post Conviction Collateral (Footnote Continued Next Page)

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The statutory requirement that a PCRA petition must be filed within one

year of the date the judgment of sentence becomes final is a “jurisdictional

deadline” and a PCRA court may not ignore the untimeliness of a petition to

address the merits of the issues raised therein. Commonwealth v.

Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019) (citation omitted); see also

42 Pa.C.S. § 9545(b)(1).

Here, Appellant’s judgment of sentence was final on November 26, 2012

— 90 days after the Pennsylvania Supreme Court denied his petition for

allocatur, and the time for filing a writ of certiorari with the United States

Supreme Court expired. See U.S. Sup. Ct. R. 13. Therefore, he had until

November 26, 2013, to file a timely PCRA petition, which he did on December

17, 2012. However, the present petition — Appellant’s second — was filed on

September 24, 2019, almost 6 years after the filing deadline, and is, therefore,

facially untimely.

Nevertheless, Section 9545(b)(1) provides three exceptions to the time

for filing requirement:

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the

Relief, 9/24/19, at 4 (asking the PCRA court to “acknowledge that [his] counsel [Attorney] Levin was indeed ineffective. . . ); Turner/Finley Letter Brief at 10 (noting Appellant raised his claim against Attorney Levin). This does not impact our review as we may affirm on any basis. See Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018) (“[A]n appellate court is not bound by the rationale of the trial court and may affirm on any basis if the record supports it.”).

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judgment becomes final, unless the petition alleges and the petitioner proves that:

(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition invoking one of the timeliness

exceptions must “be filed within one year of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2). “It is the petitioner’s burden to

allege and prove that one of the timeliness exceptions applies.”

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (emphasis

added).

Neither Appellant nor Counsel allege any of the above timeliness

exceptions. Instead, in his Turner/Finley letter brief, Counsel argues

Appellant’s petition is timely filed under Bradley. Turner/Finley Letter Brief

at 8-9. Specifically, he asserts Bradley permits an appellant to file a timely

petition raising prior PCRA counsel’s ineffectiveness “within one year of the

denial of allocatur[.]” See id. We conclude however, that Bradley is

inapplicable to Appellant’s petition.

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In Bradley, the Pennsylvania Supreme Court permitted review to

“consider whether the current process for the enforcement of the right to

effective counsel in a first PCRA proceeding is adequate, and if not, whether

another process is appropriate.” Bradley, 261 A.3d at 386. At that time, a

petitioner was required to raise claims of PCRA counsel’s ineffectiveness in a

response to the PCRA court’s Pa.R.Crim.P. 907 notice of intent to dismiss the

petition. See id. The failure to do so would result in waiver of the claims.

Id.

Recognizing the impracticability of that procedure, the Bradley Court

held “that a PCRA petitioner may, after a PCRA court denies relief, and after

obtaining new counsel or acting pro se, raise claims of PCRA counsel’s

ineffectiveness at the first opportunity to do so, even if on appeal.” Bradley,

261 A.3d at 401 (footnote omitted). However, the Court further opined:

[W]e deem the consideration on collateral appeal of claims of PCRA counsel ineffectiveness to spring from the original petition itself, and that doing so does not amount to impermissibly allowing a “second or subsequent” serial petition — the concern of our Court in [Commonwealth v.] Lawson[, 549 A.2d 107 (Pa. 1988)] and the General Assembly in its 1988 amendments to the PCRA. Lawson, 549 A.2d at 108; 42 Pa.C.S. § 9545(b)(1). Accordingly, we reject the notion that considering ineffectiveness claims on collateral appeal constitutes a prohibited serial petition, violating the PCRA’s one-year time bar.18

18 We decline to adopt the approach . . . that would deem a

petitioner’s “discovery” of initial PCRA counsel’s ineffective assistance to constitute a “new fact” that was unknown to petitioner, allowing such petitioner to overcome, in a successive petition, the PCRA’s time bar provision under the “new fact” exception. See 42 Pa.C.S. § 9545(b)(1)(ii). We

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have repeatedly rejected such an understanding of the “new fact” exception to the PCRA’s one-year time bar.

Id. at 404 & n.18. See also id. at 406 (Dougherty, J., Concurring)

(“Importantly, our decision today does not create an exception to the

PCRA’s jurisdictional time-bar, such that a petitioner represented by the

same counsel in the PCRA court and on PCRA appeal could file an untimely

successive PCRA petition challenging initial PCRA counsel’s ineffectiveness

because it was his first opportunity to do so[.]”) (quotation marks omitted &

emphasis added).

The Bradley Court came to the above conclusions based on a PCRA

petitioner’s right to the appointment of counsel for a first petition, as well as

the right that counsel provide effective assistance. See Bradley, 261 A.3d at

391. Our Court has concluded in prior unpublished decisions that Bradley

does not permit petitioners to file subsequent PCRA petitions in order to

challenge prior PCRA counsel’s ineffective assistance.9 See Commonwealth

v. Dixon, 1145 EDA 2022, 2022 WL 17973240 at *3 (Pa. Super. Dec. 28,

2022) (concluding “Bradley does not trigger the [newly recognized

constitutional right] timeliness exception [because it] is properly understood

as a reassessment of appellate procedure in cases involving claims for

collateral relief[, and not] a decision by the Pennsylvania Supreme Court which

9 We may cite unpublished non-precedential memorandum decisions of this

Court filed after May 1, 2019, for their persuasive value. See Pa.R.A.P. 126(b)(1)-(2).

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recognizes a new and retroactive constitutional right outside the permissible

filing period provided under the PCRA.”); Commonwealth v. Parkinson,

1286 EDA 2022, 2022 WL 5237927 at *3 (Pa. Super. 2022) (holding “Bradley

did not create a new, non-statutory exception to the PCRA time bar”).

Because here, Appellant challenges prior counsel’s ineffectiveness in a second

PCRA petition, Bradley does not apply. See Bradley, 261 A.3d at 404 &

n.18. Accordingly, Appellant’s claim that his petition is timely filed under

Bradley is meritless and no relief is due. See id.; Whiteman, 204 A.3d at

450; see also 42 Pa.C.S. § 9545(b)(1).

Moreover, even if Appellant’s petition was timely filed, he would not be

entitled to relief. He first raises a claim pertaining to the discretionary aspects

of his sentence. We note that “[c]hallenges to the discretionary aspects of

sentencing are not cognizable under the PCRA.” Commonwealth v. Fowler,

930 A.2d 586, 593 (Pa. Super. 2007). Furthermore, this claim has been

previously litigated and as such, is ineligible for PCRA review. See 42 Pa.C.S.

§ 9543(a)(3) (providing that a petitioner must plead and prove by a

preponderance of the evidence that the allegation of error has not been

previously litigated); see also Commonwealth v. Spotz, 18 A.3d 244, 281

(Pa. 2011) (previously litigated claims are not cognizable under the PCRA).

Next, Appellant alleges Attorney Levin was ineffective when

representing Appellant in his first PCRA proceedings and subsequent appeal.

As present PCRA counsel points out in his Turner/Finley letter brief, Appellant

does not allege how Attorney Levin was ineffective or how this purported

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ineffectiveness prejudiced him. See Turner/Finley Letter Brief at 10. See

also Commonwealth v. Bishop, 266 A.3d 56, 62 (Pa. Super. 2021) (to

prevail on a claim of ineffective assistance, a petitioner must prove: (1) the

claim has arguable merit; (2) counsel had no reasonable basis for their

conduct; and (3) the petitioner was prejudiced). Thus, Appellant has not

established that Attorney Levin was ineffective, and no relief is due. See id.

Because we agree with the PCRA court’s determination that Appellant’s

petition was untimely filed, and he has failed to plead and prove the

applicability of any of the PCRA’s timeliness exceptions, we affirm the order

dismissing his serial petition.

Petition to withdraw granted and order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/14/2023

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