Com. v. Walker, M.

• Court: Superior Court of Pennsylvania
• Decided: January 24, 2017
• Docket: 3573 EDA 2015
• Status: Unpublished

Opinion

J-S04035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL WALKER : : Appellant : No. 3573 EDA 2015

Appeal from the PCRA Order October 30, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004505-2012

BEFORE: SHOGAN, OTT and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 24, 2017

Appellant Michael Walker appeals pro se from the trial court’s order

entered in the Court of Common Pleas of Philadelphia County on October 30,

2015, dismissing his first petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On March 22, 2012, Appellant was charged with rape, aggravated

assault, robbery, and related offenses. On July 17, 2013, testimony began

in Appellant’s jury trial. On July 18, 2013, Appellant entered a negotiated

guilty plea to robbery and aggravated assault and pled nolo contendere to a

charge of indecent assault.1 On that same date, the trial court accepted the ____________________________________________

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 3701(a)(1)(i); 2702(a)(1); 3126(a)(1), respectively. J-S04035-17

negotiated sentence and sentenced Appellant to an aggregate term of eight

years to sixteen years in prison on the robbery and aggravated assault

charges, and it deferred sentencing on the indecent assault charge. N.T.,

7/18/13, at 17. Following the preparation of a pre-sentence investigation

report and mental health and psychiatric evaluations, the trial court

sentenced Appellant to a consecutive term of two years of reporting

probation on the indecent assault charge on September 12, 2013. N.T.,

9/12/13, at 16. Appellant did not file a post sentence motion or a direct

appeal.

On April 9, 2014, Appellant filed a timely, pro se PCRA petition raising

a claim of trial counsel’s ineffectiveness for failing to object to DNA evidence

the Commonwealth had offered at trial. See Pro Se Motion for Post

Conviction Collateral Relief, 4/9/14, at 4. Counsel was appointed to

represent Appellant and entered his appearance on March 11, 2015;

however, appointed counsel sought to withdraw pursuant to

Turner/Finley,2 asserting that following his review of the matter and of

controlling legal authority and consultation with Appellant, counsel had

determined there were no issues of merit that could support the grant of

PCRA relief. See Motion of Counsel for Leave to Withdraw, filed 6/30/15, at

2. Counsel also sent Appellant a correspondence wherein he advised ____________________________________________

2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).

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Appellant of his right to proceed pro se or with privately retained counsel,

should the PCRA court grant counsel’s motion to withdraw. Id. at 3. After

issuing a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition,

the PCRA court ultimately did so and permitted counsel to withdraw on

October 26, 2015.

On November 23, 2015, Appellant filed a timely notice of appeal. On

December 2, 2015, the PCRA court entered an order directing Appellant to

file a statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(b), and Appellant filed the same on December 8, 2015. In his brief,

Appellant presents the following question for our review:

Was trial/plea counsel ineffective for failing to file the proper motion to withdraw guilty plea after being informed by the Appellant of his wishes for counsel to do so.

Appellant’s Brief at 4 (unnumbered).

In PCRA proceedings, this Court’s scope of review is limited by the

PCRA's parameters; since most PCRA appeals involve mixed questions of

fact and law, the standard of review we apply is whether the PCRA court's

findings are supported by the record and free of legal error.

Commonwealth v. Pitts, 603 Pa. at 1, 7, 981 A.2d 875, 878 (2009).

Moreover, it is well-settled that when a defendant has entered a negotiated

guilty plea, his “plea ... amounts to a waiver of all defects and defenses

except those concerning the jurisdiction of the court, the legality of the

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sentence, and the validity of the guilty plea.” Commonwealth v. Reichle,

589 A.2d 1140, 1141 (Pa.Super. 1991).

In his four-paragraph argument, Appellant contends trial/PCRA counsel

were ineffective for failing to file a motion to withdraw Appellant’s guilty

plea; however, a review of the record reveals Appellant failed to assert this

claim in a timely post-sentence motion or in his pro se PCRA petition, and

PCRA counsel did not raise it in his Turner/Finely letter. In addition,

Appellant admittedly did file a Rule 907 response to the PCRA court’s notice

to dismiss his petition. Brief for Appellant at 6 (unnumbered). Moreover,

although Appellant raised five claims in his Rule 1925(b) statement,

Appellant nowhere therein challenged counsels’ effectiveness for failing to

file a requested motion to withdraw his guilty plea.

Because he advanced this issue for the first time on appeal, it is

waived, and we shall not further consider it. See Commonwealth v.

Rainey, 593 Pa. 67, 85, 928 A.2d 215, 226 (2007) (concluding that issues

not raised in a PCRA petition are waived and cannot be considered for the

first time on appeal); see also 42 Pa.C.S.A. § 9544(b) (“an issue is waived

if the petitioner could have raised it but failed to do so before trial, at trial,

during unitary review, on appeal or in a prior state postconviction

proceeding.”); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”); see also

Commonwealth v. Henkel, 90 A.3d 16, 29-30 (Pa.Super. 2014) (en banc)

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(finding ineffective assistance of PCRA counsel claims cannot be raised for

the first time on appeal); Commonwealth v. Rigg, 84 A.3d 1080, 1085

(Pa.Super. 2014) (concluding appellant cannot challenge the effectiveness of

PCRA counsel’s assistance for first time in Rule 1925(b) statement).

As Appellant has waived the issue he presents in his appellate brief,

we affirm the October 30, 2015, order of the PCRA court denying Appellant's

PCRA petition.3

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/24/2017

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3 We note that in its Rule 1925(a) Opinion filed on April 25, 2016, the PCRA court addressed the claims Appellant set forth in his Rule 1925(b) statement; however, it could not analyze the issue Appellant raises in his appellate brief for Appellant’s failure to assert it below. Notwithstanding, an appellate court is not bound by the rationale of the PCRA court and may affirm on any basis. See Commonwealth v. Doty, 48 A.3d 451, 456 (Pa.Super. 2012).

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