J-S85045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    WILLIAM M. FREDERICK

                             Appellant              No. 1494 WDA 2017


               Appeal from the Order entered September 5, 2017
               In the Court of Common Pleas of Allegheny County
                Criminal Division at No: CP-02-CR-0010217-2012


BEFORE: BOWES, PANELLA, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                           FILED APRIL 19, 2018

        Appellant, William M. Frederick, appeals pro se from the September 5,

2017 order entered in the Court of Common Pleas of Allegheny County,

denying his petition for leave to file a direct appeal nunc pro tunc. Following

review, we affirm.

        On March 7, 2013, Appellant entered into a negotiated guilty plea to

attempted murder, aggravated assault, attempted arson, and unlawful

restraint.1 The trial court imposed a sentence of 20 to 40 years in prison.

Appellant did not file post-sentence motions or an appeal to this Court.




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1   18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 901(a), and 2902, respectively.
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      On March 28, 2013, Appellant filed a petition for collateral relief

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. The PCRA court appointed counsel who filed an amended petition on

June 7, 2013, alleging ineffective assistance of plea counsel and an illegal

sentence.

      On June 28, 2013, the PCRA court granted relief on Appellant’s illegal

sentence claim, vacated his sentence, and imposed a sentence of not less than

ten years or more than twenty years for attempted murder as well as a

consecutive sentence of not less than ten years or more than twenty years for

attempted arson.    In the same order, the PCRA court issued a notice in

accordance with Pa.R.Crim.P. 907, advising Appellant of its intent to dismiss

the remaining ineffectiveness claim without a hearing. Appellant did not file

a response. By order entered September 3, 2013, the PCRA court dismissed

the petition. Appellant filed an appeal to this Court. On March 19, 2014, we

affirmed the PCRA court’s order. Commonwealth v. Frederick, No. 1439

WDA 2013 (Pa. Super. filed March 19, 2014). On July 23, 2014, our Supreme

Court denied his petition for allowance of appeal.         Commonwealth v.

Frederick, 100 A.3d 313 (Pa. 2014).

      On August 15, 2017, Appellant filed the instant petition for leave to file

an appeal nunc pro tunc, claiming as he does in this appeal, that the trial court

failed to advise him of his direct appeal rights at the time of sentencing.   By

order entered September 5, 2017, the court denied the petition, explaining


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that “on March 28, 2013, a PCRA petition was filed and subsequently resolved

in the Superior Court[.] Any claims [Appellant] seeks to raise now could have

been raised in his 2013 petition.” Trial Court Order, 9/5/17, at 1.

      Appellant filed a timely appeal to this Court. In response, the trial court

issued an order in accordance with Pa.R.A.P. 1925(a), noting:

      [T]he court has receive a notice of appeal . . . and a concise
      statement in support of that [notice of appeal]. Neither of the
      claims [Appellant] plans to push forward ha[s] merit. There was
      a prior PCRA proceeding which was resolved in the Superior
      Court[.] His first claim—failure to provide notice regarding direct
      appeal rights—could have been raised in the prior litigation[.] The
      presence of the prior matter was the major force behind the court
      exercising its discretion and not granting a nunc pro tunc appeal.

Trial Court Order, 10/18/17, at 1 (some capitalization omitted).

      Appellant asks us to consider two issues in this appeal:

      (I). Whether the court of common pleas erred in denying Appellant
      permission to file his notice of appeal and/or direct appeal nunc
      pro tunc where the sentencing court [] judge failed to properly
      and adequately inform him of his constitutional right to file a direct
      appeal in a timely manner challenging his conviction, which failure
      to grant Appellant permission to appeal nunc pro tunc denied him
      due process of law under the Pennsylvania and United States
      Constitution?

      (II). Whether the court of common pleas abused [its] discretion
      in not granting Appellant permission to appeal nunc pro tunc
      and/or not holding a hearing on said claim, which failure denied
      him due process of law under the Pennsylvania and United States
      Constitution?

Appellant’s Brief at 2.

      In Commonwealth v. Williams, 893 A.2d 147 (Pa. Super. 2006), this

Court reiterated that “[a]n abuse of discretion standard governs our review of


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the propriety of a grant or denial of an appeal nunc pro tunc.” Id. at 150

(quoting Commonwealth v. Stock, 679 A.2d 760, 762 (Pa. 1996) (additional

citation omitted)). Based on our review of the record, we discern no abuse of

discretion on the part of the trial court in denying Appellant’s petition, and

doing so without a hearing. As the trial court noted, Appellant filed a timely

PCRA petition in 2013 in which he could have raised his claims relating to the

trial court’s explanation of appeal rights at his sentencing hearing.            As

provided in the PCRA, an allegation of error “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.” 42 Pa.C.S.A.

§ 9544(b) (emphasis added). Therefore, Appellant’s failure to raise the issue

in his prior PCRA proceeding results in waiver.

      Even if not waived, however, Appellant’s issues are meritless. Prior to

sentencing,   Appellant   completed    a   written   guilty   plea   colloquy   and

acknowledged his understanding of the ramifications of his guilty plea, see

Guilty Plea Explanation of Defendant’s Rights, 3/6/13, at ¶¶ 29-30; the right

to file post-sentence motions and the impact of doing so, id. at ¶¶ 37-40; the

right to appeal to the Superior Court upon denial of a post-sentence motion

and the time for doing so, id. at ¶¶ 41-42; and the limited bases for pursuing

an appeal to this Court in light of entry of a guilty plea, id. at ¶ 29.

      Moreover, at Appellant’s sentencing hearing, the trial court stated:

      I have to tell you about post-sentencing rights and appeal rights
      which are outlined pursuant to Rule 720 of the Rules of Criminal

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      Procedure which are effectively as follows: You would have ten
      days from today within which to file a written post-sentence
      motion. In that motion you may request relief, including a motion
      for judgment of acquittal, a new trial, a modification of sentence
      or an arrest of judgment. All requests must be made with
      specificity and particularity. The [c]ourt would have 120 days plus
      a possible 30-day extension or a maximum of 150 days to decide
      that motion. If it is not decided in that period, it will be deemed
      denied. If your post-sentence motions are deemed denied or
      actually denied, you would have thirty days from either such date
      to file an appeal with the Superior Court. In that appeal you must
      allege any issue or error that you believe took place during your
      trial or sentencing. Your failure to do so would be a waiver of any
      such issue.

      If you choose to not file a post-sentence motion, you can file a
      direct appeal to [the] Superior Court of Pennsylvania within thirty
      days of today. In that appeal you must allege any or all issues of
      error that you believe took place during your trial or sentencing.
      Your failure to do so would be a waiver of any such issue.

      If you are unable to afford the services of an attorney to file either
      a post-sentence motion or appeal to the Superior Court on these
      matters and are otherwise qualified, I will appoint counsel to
      represent you at no charge to you. Do you understand your
      rights?

Notes of Testimony, Sentencing Hearing, 3/7/13, at 9-11.

      In response to the court’s question, Appellant responded, “Yes, Your

Honor.” Id. at 11.

      Appellant’s issues are based on a contention that the trial court failed to

advise him of his appeal rights.       His contention is belied by the record.

Appellant is not entitled to relief.




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       Finding no abuse of discretion on the part of the trial court for denying

Appellant’s petition, and further finding that the trial court did in fact advise

Appellant of his appeal rights, we affirm the court’s September 5, 2017 order.2

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2018




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2See In re Jacobs, 15 A.3d 509, n.1 (Pa. Super. 2011) (“[This Court is] not
bound by the rationale of the trial court, and may affirm on any basis.”).

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