Com. v. Way, C.

• Court: Superior Court of Pennsylvania
• Decided: September 27, 2022
• Docket: 2316 EDA 2021
• Status: Unpublished

Opinion

J-S27010-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

CLIFFORD WAY

Appellant No. 2316 EDA 2021

Appeal from the PCRA Order Entered November 8, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0708111-2006

BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 27, 2022

Appellant, Clifford Way, who is serving a sentence of imprisonment for

stabbing and nearly killing his ex-girlfriend, appeals from an order denying his

petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. The

lone argument in his brief is that trial counsel was ineffective for failing to file

post-sentence motions challenging the discretionary aspects of his sentence.

We affirm.

On June 2, 2006, Appellant had a verbal confrontation with the victim,

an ex-girlfriend, which devolved into a physical altercation. Appellant pulled

the victim into his vehicle, where he cut her neck with a knife, stabbed her in

her left shoulder, and threatened to kill her. The victim persuaded Appellant

to spare her life and take her to Temple University Hospital, where she

informed the trauma room staff of her ordeal. The police arrested Appellant

outside the hospital. J-S27010-22

Following a non-jury trial, the court found Appellant guilty of aggravated

assault, kidnapping, terroristic threats, simple assault, possession of an

instrument of crime, unlawful restraint, reckless endangerment, and false

imprisonment. On May 20, 2009, the court sentenced Appellant to ten to

twenty years’ imprisonment for both aggravated assault and kidnapping, to

be served concurrently, and a consecutive aggregate term of fifteen years’

probation for other charges. Appellant’s sentence for aggravated assault and

kidnapping were above the guidelines range. N.T., 5/20/09, at 5, 13

(guidelines range was seventy-two to ninety months plus or minus twelve

months).

Appellant did not file a direct appeal, but on January 21, 2010, Appellant

filed a PCRA petition requesting reinstatement of his direct appeal rights. On

October 12, 2012, the court granted Appellant’s petition and reinstated his

appellate rights nunc pro tunc. On November 8, 2012, Appellant filed a notice

of appeal. On May 9, 2014, this Court affirmed Appellant’s judgment of

sentence. Commonwealth v. Way, No. 3152 EDA 2012 (Pa. Super., May 9,

2014) (memorandum). We held, inter alia, that Appellant waived his

challenge to the discretionary aspects of his sentence by failing to either raise

this issue at sentencing or file post-sentence motions. Id. at 6-7. On October

23, 2014, our Supreme Court denied Appellant’s petition for allowance of

appeal.

Appellant filed a timely pro se PCRA petition. The court appointed

counsel for Appellant, who filed an amended petition alleging that trial counsel

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was ineffective for failing to file a motion to dismiss under Pa.R.Crim.P. 600

or post-sentence motions challenging the discretionary aspects of sentence.

On December 18, 2017, the PCRA court dismissed Appellant’s petition without

holding a hearing.

Appellant filed an appeal to this Court, which vacated the order of

dismissal and remanded for further proceedings on Appellant’s Rule 600 claim,

including an evidentiary hearing. Commonwealth v. Way, 239 EDA 2018

(Pa. Super., Feb. 28, 2019). Due to our remand on the Rule 600 issue, we

held that it was unnecessary to examine Appellant’s claim of ineffectiveness

relating to his sentence. Id. at 8.

On February 24, 2020, the PCRA court again dismissed Appellant’s

petition. On March 6, 2020, Appellant appealed to this Court. On June 14,

2021, we vacated the order of dismissal and remanded this case. We

observed that the PCRA court failed to hold a hearing in accordance with our

decision on February 28, 2019, and we directed the PCRA court to hold an

evidentiary hearing on remand.

On November 8, 2021, the PCRA court convened a hearing relating to

Appellant’s amended petition. Appellant stipulated, under oath, that he was

abandoning his Rule 600 claim because it would have been unsuccessful. N.T.,

11/8/21, at 4-8. Appellant continued to pursue his claim of ineffectiveness

concerning his sentence, id. at 8, but the court denied this claim without

taking evidence. Id. at 12. Appellant filed a timely appeal to this Court, and

both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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Appellant raises a single issue in this appeal: “Whether the court erred

in not granting relief on the PCRA petition alleging [t]rial [c]ounsel was

ineffective for failing to file a post sentence motion to reconsider the

sentence?” Appellant’s Brief at 7.

When reviewing the propriety of an order pertaining to PCRA relief,

we consider the record in the light most favorable to the prevailing party at the PCRA level. This Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. We grant great deference to the PCRA court’s findings that are supported in the record and will not disturb them unless they have no support in the certified record. However, we afford no such deference to the post-conviction court’s legal conclusions. We thus apply a de novo standard of review to the PCRA [c]ourt’s legal conclusions.

Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018).

A petitioner who alleges ineffective assistance

will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the “[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.[A.] § 9543(a)(2)(ii). “Counsel 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.” Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).

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Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014). Prejudice, in

the context of ineffective assistance claims, requires proof of a reasonable

probability that but for counsel’s error, the outcome of the proceeding would

have been different. Commonwealth v. Kimball, 724 A.2d 326, 331 (Pa.

1999). The petitioner’s failure to satisfy any of the three prongs requires

rejection of his ineffective assistance claim. Commonwealth v. Ly, 980 A.2d

61, 74 (Pa. 2009).

Appellant maintains that trial counsel was ineffective for failing to file

post-sentence motions. The PCRA court properly rejected this claim.

The defendant has the option of filing post-sentence motions within ten

days after imposition of sentence. Pa.R.Crim.P. 720(A)(1). Furthermore, “a

trial court may exercise its discretion and permit a post-sentence motion to

be filed nunc pro tunc within thirty days after the imposition of sentence.”

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 724, n. 1 (Pa. Super. 2013)

(emphasis added).

An important distinction exists between ineffectiveness claims due to

alleged failure to file post-sentence motions and ineffectiveness claims due to

alleged failure to file a direct appeal. When counsel fails without justification

to file a direct appeal, counsel is deemed per se ineffective; the petitioner

need not prove that he suffered prejudice as a result of counsel’s inaction.

Commonwealth v. Lantzy, 736 A.2d 564, 571 (Pa. 1999). The failure to

file post-sentence motions, however, “does not fall within the limited ambit of

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situations where a defendant alleging ineffective assistance of counsel need

not prove prejudice to obtain relief.” Commonwealth v. Reaves, 923 A.2d

1119, 1132 (Pa.2007). To obtain relief based upon the failure to file a post-

sentence motion, a defendant must meet the traditional three-part Pierce

test for establishing ineffective assistance of counsel (arguable merit, lack of

reasonable excuse for inaction, prejudice). Id. at 1128-30.

Appellant contends that the court did not sufficiently state its reasons

for imposing an above-guidelines sentence on the record, and therefore

counsel should have raised this objection in post-sentence motions.1 We

disagree. The court explicitly stated its reasons for imposing an above-

guidelines sentence and appropriately considered the factors in 42 Pa.C.S.A.

§ 9721(b) during the sentencing hearing. N.T. 5/20/09, 12-13. Thus,

Appellant’s objection to counsel’s failure to file post-sentence motions lacks

arguable merit.

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1 Some decisions from this Court hold that challenges to the discretionary aspects of sentencing are not cognizable under the PCRA. See, e.g., Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007). In other cases, however, we have entertained challenges under the PCRA to discretionary aspects of sentencing claims embedded within claims of ineffective assistance of counsel. See, e.g., Commonwealth v. Jones, 942 A.2d 903, 906-08 (Pa. Super. 2008). We leave for another day whether these decisions are inconsistent, and if so, the proper resolution of this inconsistency. Presently, we address Appellant’s claim, as we find any potential inconsistency does not affect the outcome of this case, since we are affirming the PCRA court’s denial of relief.

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“Sentencing is a matter vested in the sound discretion of the trial

court[,] and the lower court’s judgment of sentence will not be disturbed by

an appellate court absent an abuse of discretion.” Commonwealth v.

Clever, 576 A.2d 1108, 1110 (Pa. Super. 1990). “An abuse of discretion is

more than just an error in judgment and, on appeal, the trial court will not be

found to have abused its discretion unless the record discloses that the

judgment exercised was manifestly unreasonable, or the result of partiality,

prejudice, bias[,] or ill-will.” Commonwealth v. Burkholder, 719 A.2d 346,

350 (Pa. Super. 1998). “When reviewing sentencing matters,” this Court

“accord[s] the sentencing court great weight as it is in the best position to

view the defendant’s character, displays of remorse, defiance or indifference,

and the overall effect and nature of the crime.” Clever, 576 A.2d at 1110.

“Where the court sentences outside of the guidelines, this Court shall

vacate the sentence only where it finds the sentence imposed is

unreasonable.” Commonwealth v. Akhmedov, 216 A.3d 307, 329 (Pa.

Super. 2019) (en banc); see also 42 Pa.C.S.A. § 9781(c)(3) (same). In

determining whether a sentence is unreasonable, an appellate court must

consider the following factors:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

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(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d)(1)-(4).

“[A] sentence may also be unreasonable if the appellate court finds that

the sentence was imposed without express or implicit consideration . . . of the

general standards” set forth in 42 Pa.C.S.A. § 9721(b), “i.e., the protection of

the public[,] the gravity of the offense in relation to the impact on the victim

and the community[,] and the rehabilitative needs of the defendant.”

Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007). “[The] rejection

of a sentencing court’s imposition of sentence on unreasonableness grounds

[should] occur infrequently, whether the sentence is above or below the

guideline[s] ranges, especially when the unreasonableness inquiry is

conducted using the proper standard of review.” Id.

The sentencing court is required to indicate on the record that it

“understood the suggested sentencing range.” Commonwealth v. Mouzon,

828 A.2d 1126, 1128 (Pa. Super. 2003). The court is permitted to deviate

from the guidelines “so long as [it] also states [on the] record the factual basis

and specific reasons which compelled [it] to deviate from the guideline[s]

range.” Id. “The sentencing judge can satisfy the requirement that reasons

for imposing sentence be placed on the record by indicating that he or she has

been informed by the pre-sentencing report[,] thus properly considering and

weighing all relevant factors.” Akhmedov, 216 A.3d at 329.

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Here, the court ordered a presentence report at the conclusion of trial.

N.T., 3/11/09 at 66. During sentencing, the court acknowledged the

guidelines ranges and stated that it was deviating from those ranges for

Appellant’s aggravated assault and kidnapping convictions. N.T. 5/20/09, at

5, 13. The court provided specific reasons that warranted deviation from the

guidelines range, including the fact that Appellant used a knife during the

assault and “cut [the victim] about the neck.” Id. at 12. The victim required

treatment at the hospital and was fortunate to survive multiple stabbings and

slashing of her neck. Because of the nature of the offenses, the court

concluded “the guidelines . . . [were] insufficient to punish the crime that was

committed.” Id. at 13. The court heard the prosecution’s argument about

defendant’s repeated assaults on the victim in the past. Id. at 6. It also took

into account Appellant’s prior record, which included fourteen arrests, eight

prior convictions, and a federal criminal case. Id. at 10. Turning to the gravity

of the offense, the court viewed photographs depicting the victim’s injuries

and emphasized that Appellant assaulted the victim with a knife, clearly a

deadly weapon and used, in the circumstances of this case, with potentially

deadly force. Id. at 12. The court explicitly considered the factors in 42

Pa.C.S.A. § 9721(b) during sentencing. Id. at 12 (court’s statement that it

was sentencing Appellant “for [the] protection of the public, for punishment,

and for rehabilitation”).

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Appellant contends that the court was required to impose a sentence

within the standard guidelines range because he committed only “a standard

aggravated assault” and “less than [a] standard kidnapping.” Appellant’s Brief

at 14. We reject Appellant’s attempt to downplay the serious nature of his

crimes. He committed a particularly heinous aggravated assault by repeatedly

stabbed his ex-girlfriend and slitting her throat, leaving “a severe laceration

on the left side of her neck.” N.T. 3/11/09, at 12 (joint trial stipulation as to

victim’s injuries). The kidnapping was equally egregious. Appellant pulled his

ex-girlfriend into his van and brandished a knife at her while she was

attempting “to explain their break-up” to him. N.T. 5/20/09, at 6. The fact

that the victim fortunately survived Appellant’s attack is not a mitigating

factor, because he clearly intended to cause her serious bodily harm during

the kidnapping.

Appellant also insists that the court abused its discretion by relying on

photos of the victim’s wounds to impose an above-guidelines sentence. We

see nothing wrong with the sentencing court’s reference to photographs in the

record since they demonstrated the gravity of the offense. See

Commonwealth v. Penrod, 578 A.2d 486, 491-92 (Pa. Super. 1990) (“the

Commonwealth may properly present . . . evidence such as photographs at

sentencing on the relevant sentencing issue of the gravity of the offense as it

relates to the impact on the life of the victim and on the community”) (quoting

42 Pa.C.S. § 9721(b)). The court was also entitled to consider the victim’s

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serious injuries as a reason for imposing an above-guidelines sentence. Cf.

Commonwealth v. Lekka, 210 A.3d 343, 353 (Pa. Super. 2019) (argument

challenging a sentencing court’s “overemphasi[s]” of certain facts “is beyond

the scope of review of an appellate court reviewing a sentencing decision”).

In short, the sentencing court (1) acknowledged the guidelines range,

(2) explained it was deviating from the guidelines range, (3) provided specific

reasons that caused it to deviate from the guidelines range, (4) ordered a pre-

sentence report, and (5) explicitly considered all factors required under

sentencing law. For these reasons, Appellant’s claim of ineffective assistance

lacks arguable merit. As a result, we need not examine the other Pierce

prongs of reasonable basis for inaction and prejudice. Ly, 980 A.2d at 74.

For these reasons, we affirm the order denying PCRA relief to Appellant.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/27/2022

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