J-S19020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 WILLIE BATES,                             :
                                           :
                    Appellant.             :   No. 1858 EDA 2018


            Appeal from the PCRA Order Entered, May 16, 2018,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division at No(s): CP-51-CR-0008130-2016.


BEFORE:    LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY KUNSELMAN, J.:                            FILED JULY 10, 2019

      Willie Bates appeals pro se from the order denying his first petition filed

pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

      The pertinent facts and procedural history are as follows: On Monday,

August 6, 2016, at approximately 5 p.m., Bates walked up to the victim, Brent

Rafferty, on the 5800 block of Summerdale Avenue at the intersection of Alcott

Street in the City of Philadelphia. After a short conversation, Bates pulled a

firearm and shot Mr. Rafferty six times. Rafferty died from his wounds. A

nearby security camera captured the entire incident.

      Following his arrest, Bates and the Commonwealth entered into

negotiations that concluded when Bates agreed to enter a negotiated guilty

plea to one count of third-degree murder, two firearm violations, and one


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S19020-19



count of possession of an instrument of crime.               In exchange, the

Commonwealth agreed to recommend an aggregate sentence of 26-55 years

of incarceration. On February 14, 2017, the trial court accepted Bates’ guilty

plea and sentenced him in accordance with the negotiated sentence. Bates

filed neither a post-sentence motion, nor a direct appeal.

      On October 23, 2017, Bates filed a timely pro se PCRA petition. In this

petition, Bates claimed that the trial court lacked subject matter jurisdiction

over him because the bills of information in his case “failed to allege formal,

specific, and jurisdictionally required factual allegations.”     Pro Se PCRA

Petition, 10/23/17, at ¶ 6(b). In addition, he asserted that his sentence was

illegal, and it was “increased, enhanced [or] aggravated based on facts not

alleged in the [bills] of information, admitted to by [Bates], or consented to

by [Bates] for judicial fact-finding.” Id. Finally, he alleged that trial counsel

was ineffective for failing to move to dismiss the charges based on the

defective bills of information and failing to ensure that he received a legal

sentence.

      The PCRA court appointed counsel and, on March 22, 2018, PCRA

counsel filed a “no-merit” letter and motion to withdraw pursuant to the

dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On

April 9, 2018, PCRA counsel filed a supplemental Turner/Finley letter

addressing the ineffectiveness claim concerning plea counsel’s failure to raise

a jurisdictional defense to the charges the Commonwealth filed against him.

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       On April 12, 2018, the PCRA court issued Pa.R.Crim.P. 907 notice of its

intention to dismiss Bates’ PCRA petition without a hearing.         Bates filed a

response. On May 15, 2018, PCRA counsel filed a response to Bates’ response

to the PCRA court’s Rule 907 notice. By order entered May 16, 2018, the

PCRA court denied Bates’ PCRA petition and granted PCRA counsel’s motion

to withdraw.     This appeal followed.         Both Bates and the PCRA court have

complied with Pa.R.A.P. 1925.

       Bates raises the following issue on appeal:

          1. Did the PCRA court err in not granting PCRA relief, and
             was PCRA counsel ineffective for failing to file an
             amended petition asserting trial counsel’s ineffectiveness
             for not advising Bates, prior to advising him to plead
             guilty, that his Sixth and Fourteenth Amendment rights
             were violated due to the Commonwealth’s failure to
             lawfully invoke the trial court’s subject matter jurisdiction
             when the Commonwealth filed a fatally defective bill of
             information, that the sentencing terms of the negotiated
             plea were not merely “illegal,” but unconstitutional and
             violative of the Sixth and Fourteenth Amendments, and
             the Commonwealth’s statutory, guided, advisory and
             indeterminate sentencing scheme was unconstitutional
             under the Sixth and Fourteenth Amendments?

Bates’ Brief at 2.1



____________________________________________


1 Bates also raises a second issue in which he raises PCRA court error and
additional ineffectiveness allegations based upon the United States Supreme
Court’s decision in Class v. U.S., 138 S.Ct. 798 (2018). In his brief, however,
Bates concedes that his claims based upon Class were not properly before the
PCRA Court. See Bates’ Brief at 28. Thus, we will not consider his second
issue further.


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      Our scope and standard of review is well settled:

         In PCRA appeals, our scope of review is limited to the
         findings of the PCRA court and the evidence on the record
         of the PCRA court's hearing, viewed in the light most
         favorable to the prevailing party. Because most PCRA
         appeals involve questions of fact and law, we employ a
         mixed standard of review. We defer to the PCRA court's
         factual findings and credibility determinations supported by
         the record. In contrast, we review the PCRA court's legal
         conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

      When the PCRA court has dismissed a petitioner’s PCRA petition without

an evidentiary hearing, we review the PCRA court’s decision for an abuse of

discretion. Commonwealth v. Roney, 79 A.2d 595, 604 (Pa. 2013). The

PCRA court has discretion to dismiss a petition without a hearing when the

court is satisfied that there are no genuine issues concerning any material

fact, the defendant is not entitled to post-conviction collateral relief, and no

legitimate purpose would be served by further proceedings. Id. To obtain a

reversal of a PCRA court’s decision to dismiss a petition without a hearing, an

appellant must show that he raised a genuine issue of material fact which, if

resolved in his favor, would have entitled him to relief, or that the court

otherwise abused its discretion in denying a hearing.     Commonwealth v.

Blakeney, 108 A.3d 739, 750 (Pa. 2014).




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      Before addressing the merits of Bates’ issue, we must first determine

whether we should quash his appeal as untimely because Bates did not meet

his burden pursuant to the “prisoner mailbox rule.” See Commonwealth v.

Demora, 149 A.3d 330, 331 (Pa. 2016) (reiterating this Court may raise the

issue of jurisdiction sua sponte). As this Court has recently reiterated “[T]he

prisoner mailbox rule provides that a pro se prisoner’s document is deemed

filed on the date he delivers it to prison authorities for mailing.”

Commonwealth v. DiClaudio, 2019 WL 2182609 at *2, ___ A.3d ___, ___

(Pa. Super. 2019) (quoting Commonwealth v. Chambers, 35 A.3d 34, 38

(Pa. Super. 2011)).

      The PCRA court found that Bates failed to meet his burden:

             [I]t appears that [Bates’] appeal of this Court’s order
         dismissing his PCRA petition was not filed timely. A notice
         of appeal is filed timely if it is filed within thirty days after
         entry of the order for which the appeal is taken. Pa.R.A.P.
         903. [Bates’] PCRA Petition was dismissed as meritless on
         May 16, 2018, which gave [Bates] until June 14, 2018, to
         file a notice of appeal. [Bates’] notice of appeal envelope
         was time stamped Monday, June 18, 2018.

             The Commonwealth of Pennsylvania follows the prisoner
         mailbox rule, which holds that a pro se appeal by a prisoner
         is considered filed on the date of delivery of the appeal to
         prison authorities or when the appeal is placed in the
         institution’s mailbox.     Smith v. Pennsylvania Br. Of
         Probation & Parole, 683 A.2d 278, 281 (Pa. 1996).
         [Bates] dated his notice of appeal June 14, 2018, the last
         day to file the notice timely. There is no indication when the
         notice of appeal was delivered to prison authorities, but the
         posted date stamped on the front of the envelope is Monday
         June 18, 2018, four days after time had run to file a timely
         notice of appeal. There is no evidence that [Bates] delivered
         his notice of appeal to prison authorities on June 14, 2018.


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            Absent proof that the notice of appeal was delivered to
            prison authorities, or placed in the institution’s mailbox on
            June 14, 2018, it appears that [Bates’] notice of appeal is
            untimely, barring review.

PCRA Court Opinion, 8/23/18, at 7. The Commonwealth echoes the PCRA

court’s belief that Bates has failed to meet his burden of proof under the

prisoner mailbox rule. See Commonwealth’s Brief at 8-10.

       We decline to quash this appeal.          As correctly acknowledged by the

Commonwealth, Bates’ deadline for filing a timely notice of appeal was Friday,

June 15, 2018. Id. at 8. The pro se notice of appeal is dated June 14, 2018.

Within his brief, Bates avers that he placed the notice of appeal in the mailing

facilities within the prison the next day. Bates’ Brief at 8. Bates further avers

that the mail is not picked up for processing on the weekends and, for that

reason, the mail was not processed until the following Monday, June 18, 2018.

See id. Given these circumstances, we conclude that the prisoner mailbox

rule should apply. We therefore reach the merits of Bates’ issue raised on

appeal.

       In    his   sole   appellate   issue,   Bates   challenges   PCRA   counsel’s

ineffectiveness for failing to amend his PCRA petition to raise trial counsel’s

alleged ineffectiveness for failing to raise an issue of subject matter

jurisdiction and for failing to ensure that his sentence was not illegal.2

____________________________________________


2 Bates properly preserved his claim of PCRA counsel’s ineffectiveness by
raising it in his response to the PCRA court’s Rule 907 notice.       See
Commonwealth v. Pitts, 981 A.2d 875, 879 n.3 (Pa. 2009).



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       To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish, by a preponderance of the evidence,

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable strategic

basis for his or her action or inaction; and (3) petitioner was prejudiced by

counsel's act or omission. Id. at 533.

       This Court has summarized the following regarding claims that the entry

of a guilty plea was the result of ineffective assistance of counsel:

             A criminal defendant has the right to effective counsel
          during a plea process as well as during trial. A defendant is
          permitted to withdraw his guilty plea under the PCRA if
          ineffective assistance caused the defendant to enter an
          involuntary plea[.]

____________________________________________




      Throughout his brief, Bates raises additional arguments, based on
federal court decisions regarding “the Commonwealth’s abdication of its Tenth
Amendment sovereign state police power” and his “newly-recognized Sixth
Amendment right to ‘self-autonomy.’” Bates’ Brief at 6-10. Because Bates
did not sufficiently raise these claims in his PCRA petition, they are not
properly before us. See generally, Commonwealth v. Colavita, 993 A.2d
874 (Pa. 2010); Pa.R.A.P. 903(a).




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             We conduct our review of such a claim in accordance with
          the three-pronged ineffectiveness test under section
          9543(a)(2)(ii) of the PCRA. The voluntariness of the plea
          depends on whether counsel’s advice was within the range
          of competence demanded of attorneys in criminal cases.

Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)

(citations   omitted).       In   essence,     Bates   asserts   that   trial   counsel’s

shortcomings induced him to enter a guilty plea.

       The PCRA court concluded that both claims of trial counsel’s

ineffectiveness lacked merit.        At the time the Commonwealth filed bills of

information against Bates,3 Rule 560 provided as follows:

          Rule 560. Information: Filing, Contents, Function

             (A)   After the defendant has been held for court following
                   a preliminary hearing or an indictment, the attorney
                   for the Commonwealth shall proceed by preparing an
                   information and filing it with the court of common
                   pleas.

             (B)   The information shall be signed by the attorney for
                   the Commonwealth and shall be valid and sufficient
                   in law if it contains:

                   (1)    a caption showing that the prosecution is
                          carried on in the name of and by the authority
                          of the Commonwealth of Pennsylvania;

                   (2)    the name of the defendant, or if the defendant
                          is unknown a description of the defendant as
                          nearly as may be;

                   (3)    the date when the offense is alleged to have
                          been committed if the precise date is known,
                          and the day of the week if it is an essential
____________________________________________


3Rule 560(B) was amended on June 1, 2018, to add a seventh subsection
not applicable to this appeal.


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                      element of the offense charged, provided that
                      if the precise date is not known or if the offense
                      is a continuing one, an allegation that it was
                      committed on or about any date within the
                      period fixed by the statute of limitations shall
                      be sufficient;

                (4)   the county where the offense is alleged to have
                      been committed;

                (5)   a plain and concise statement of the essential
                      elements of the offense substantially the same
                      as or cognate to the offense alleged in the
                      complaint; and

                (6)   a concluding statement that “all of which is
                      against the Act of Assembly and the peace and
                      dignity of the Commonwealth.”

          (C)   The information shall contain the official or
                customary citation of the statute and section thereof,
                or other provision of law that the defendant is
                alleged to have violated; but the omission of or error
                in such citation shall not affect the validity or
                sufficiency of the information.

          (D)   In all court cases tried on an information, the issues
                at trial shall be defined by such information.

Pa.R.Crim.P. 560.

     The PCRA court first found that when it filed the bills of information

against Bates, the Commonwealth fully complied with Pa.R.Crim.P. 560, which

provided the required contents of an information in order for it to be “valid

and sufficient in law.” See Pa.R.Crim.P. 560(B). As the PCRA court explained:

        The Commonwealth filed a bill of information in this matter
        on September 22, 2016, after [Bates] was held for court
        following a preliminary hearing. The bill of information
        included all the above required information including a
        concise statement of each of the essential elements alleged
        in the complaint, as required by § 560(B)(5). Further, the


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         bill of information alleged that the offenses all occurred
         within the City and County of Philadelphia. Therefore,
         [Bates’] claim that this Court did not have jurisdiction over
         this matter because of a defective bill of information is
         meritless.

PCRA Court Opinion, 8/23/18, at 9-10.

      Our review of the record supports the PCRA court’s conclusion.           “To

invoke the subject matter jurisdiction of a Court of Common Pleas, the

Commonwealth must confront the defendant with a formal and specific

accusation of the crimes charged.”      Commonwealth v. McNeil, 665 A.2d

1247, 1251 (Pa. Super. 1995). Here, this notice requirement was satisfied in

September 2016 when the Commonwealth filed the criminal information at

issue. “The purpose of an information is to provide the accused with sufficient

notice to prepare a defense, and to ensure that he will not be tried twice for

the same act.” Commonwealth v. Alston, 651 A.2d 1092, 095 (Pa. 1994).

“An information is sufficient if it sets forth the elements of the offense intended

to be charged with sufficient detail that the defendant is apprised of what he

must be prepared to meet, and may plead double jeopardy in a future

prosecution based on the same set of events.” Id.

      Bates’ claims that the information the Commonwealth filed was

defective because it “did not charge jurisdictionally-required facts and/or

misconduct, enabling [him] to prepare a defense to the formal charges

brought by the Commonwealth, and enable him to plead double jeopardy for

the same cause.”     Bates’ Brief at 4. He further contends that the criminal

information was not “sufficient and valid at law to allow the trial court, or this

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Court to ensure the facts alleged in the information were sufficient to

support a conviction.” Id. (emphasis in original). We disagree.

      Bates’ claim lacks merit because “factual allegations” are not a required

component of a valid bill of information. See Pa.R.Crim.P. 560(B), supra. In

addition, Bates fails to explain how the averment that he was responsible for

“shooting” the victim did not give him adequate notice in order to prepare a

defense.     See Commonwealth v. Chambers, 852 A.2d 1197, 1199 (Pa.

Super. 2004 (holding that a criminal information was not required to specify

the degree of murder). Thus, this claim of trial counsel’s ineffectiveness fails.

      The trial court also found no merit to Bates’ claim of trial counsel’s

ineffectiveness regarding the legality of his sentence.          The PCRA court

explained:

           All of the sentences imposed were within statutory limits
           allowed by law. [Bates] faced and aggregate maximum
           penalty of 28.5 - 57 years. However, [Bates] was sentenced
           to 26 – 55 years pursuant to the negotiated guilty plea.
           Therefore, the claim that the sentence is illegal is meritless.

              Further, [Bates] claims that the sentence is illegal
           because he did not admit to any facts that would allow for
           the maximum sentence to be imposed under the sentencing
           guidelines. Claims that a trial court failed to comply with
           the sentencing guidelines during sentencing constitutes a
           challenge to the discretionary aspects of his sentence. See
           Commonwealth v. Davis, 737 A.2d 792 (Pa. Super.
           1999). However, since [Bates] entered a negotiated plea,
           he is precluded from challenging the discretionary aspects
           of his sentence. See Commonwealth v. Baney, 860 A.2d
           127, 131 (Pa. Super. 2004), appeal denied, 877 A.2d 459
           (Pa. 2005) (appellant may not challenge the discretionary
           aspects of the sentence, where the terms of the sentence
           were made part of the negotiated plea).


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PCRA Court Opinion, 8/23/18, at 10-11.

       Once again, our review of the record supports the PCRA court’s

conclusions.      Initially, to the extent Bates is claiming he presents a

constitutional challenge to his sentence, rather than a claim of illegality, the

claim fails. Bates’ constitutional challenge is both waived and baseless. The

claim is waived because it is being raised for the first time on appeal. See

Colavita, supra; Pa.R.A.P. 302(a). Moreover, the claim is baseless because,

although Bates discusses cases involving mandatory minimum sentences that

result from judicial fact-finding, see, e.g., Apprendi v. New Jersey, 530

U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), there

is no indication in the certified record that the sentence Bates negotiated with

the Commonwealth included any such mandatory sentences.4                 Thus, trial

counsel cannot be deemed ineffective for failing to challenge Bates’ sentence.

       In sum, both of Bates’ claims regarding the alleged ineffectiveness of

trial counsel lack arguable merit.             Thus, Bates’ claim of PCRA counsel’s

ineffective for failing to file an amended petition raising these baseless claims

likewise fails

       Order affirmed.


____________________________________________


4To the extent we understand Bates’ claim to involve the application of the
deadly weapon enhancement to the applicable sentencing guideline ranges,
we note that such enhancement does not violate Apprendi/Alleyne. See
generally, Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa.
Super. 2014) (en banc).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/19




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