J-S57043-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                  Appellee                 :
          v.                               :
                                           :
DENNIS MADDREY,                            :
                                           :
                  Appellant                :   No. 268 EDA 2018

                  Appeal from the PCRA Order November 2, 2012
               in the Court of Common Pleas of Philadelphia County
               Criminal Division, at No(s): CP-51-CR-0001586-2010
                                            CP-51-CR-0003261-2010
                                            CP-51-CR-0003266-2010
                                            CP-51-CR-0007273-2010

BEFORE:        PANELLA, J., PLATT, J.* and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                 FILED DECEMBER 04, 2018

     Dennis Maddrey (Appellant) appeals from the November 2, 2012

order, which dismissed his petition filed pursuant to the Post Conviction

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

     We provide the following background.        In July and August of 2009,

Appellant, along with a co-conspirator, Kenneth Williams, committed four

armed robberies. On October 3, 2011, Appellant entered into a negotiated

plea agreement wherein he pleaded guilty to multiple counts of robbery and

related charges at four separate docket numbers.        Pursuant to the plea

agreement, he was sentenced that day to 13 to 26 years of incarceration.

Neither post-sentence motions nor a direct appeal was filed.




*Retired Senior Judge assigned to the Superior Court.
J-S57043-18


      On February 13, 2012, Appellant filed pro se a PCRA petition listing all

four docket numbers. According to Appellant, trial counsel was ineffective

for failing to file a motion to dismiss all four of his cases pursuant to

Pa.R.Crim.P. 600 (providing that when a defendant is not brought to trial

within a particular timeframe, he or she is entitled to have the case

dismissed with prejudice).1   The PCRA court appointed Attorney Gary Server

to represent Appellant.

      On August 6, 2012, Attorney Server filed a no-merit letter and petition

to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

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

banc). Specifically, Attorney Server concluded that 1) Appellant waived his

claim because he did not file a motion to dismiss prior to pleading guilty; 2)

even if he had filed the motion, Appellant agreed to waive his right for the

motion to be heard by pleading guilty; and 3) Appellant’s guilty plea was


1 We observe that upon review of the record, it appears that trial counsel did
indeed file a Rule 600 motion on September 26, 2011. See Motion to
Dismiss Pursuant to Rule 600(G), 9/26/2011. Although the trial court never
ruled on that motion, just days later, on October 3, 2011, Appellant entered
his negotiated guilty plea agreement.

      According to the motion, two of the complaints in Appellant’s cases
were filed on September 10, 2009, one on October 6, 2009, and one on
December 10, 2009. See Motion to Dismiss Pursuant to Rule 600(G),
9/26/2011, at ¶¶ 1, 3, 5, and 7. Thus, the mechanical run dates for these
cases were September 10, 2010, October 6, 2010, and December 10, 2010,
respectively. Id. at ¶¶ 2, 4, 6, and 8. According to Appellant, the filing of
this motion on September 26, 2011, meant the Commonwealth had not
acted with due diligence in bringing Appellant to trial within 365 days. Id. at
¶ 10.


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entered knowingly, intelligently, and voluntarily, and therefore trial counsel

was not ineffective.2 Turner/Finley Letter, 8/6/2012, at 3-4 (unnumbered).

Appellant filed pro se a response to Attorney Server’s motion and letter,

arguing that Attorney Server’s analysis was incorrect, and suggesting that

an argument that trial counsel was ineffective for failing to file the Rule 600

motion resulting in an involuntary guilty plea is a claim cognizable under the

PCRA. See Response to Finley Letter, 8/30/2012.

      On September 28, 2012, the PCRA court filed notice of its intention to

dismiss Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P.

907.3 On November 2, 2012, the PCRA court entered an order permitting

Attorney Server to withdraw as counsel and dismissing Appellant’s PCRA

petition.4




2 The transcript of the guilty plea hearing is not included in the certified
record. Upon inquiry to the Prothonotary, this Court learned that it is not
available. Thus, it is not clear to us how Attorney Server was able to
conclude that Appellant’s guilty plea was knowing, intelligent, and voluntary.
However, the issue Appellant raises on appeal, as discussed infra, is not
affected by the missing transcript.

3 The Rule 907 notice is listed among the docket entries at docket number
1586, but is not in the certified record at that docket. It is in the certified
record at docket numbers 3261, 3266, and 7273, and lists all four docket
numbers on it.

4This order is listed among the docket entries at docket number 1586, but is
not in the certified record at that docket. It is not in either the docket
entries or the certified record at any other docket number.



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      On September 18, 2013, Appellant pro se filed a second PCRA petition

requesting the reinstatement of his appellate rights from the denial of his

first PCRA petition. According to Appellant, he never received the November

2, 2012 order.   That motion was granted5 by order entered October 27,

2017.6 On January 8, 2018, Appellant filed pro se a single notice of appeal

listing all four docket numbers.7   On January 19, 2018, the PCRA court

issued an order for Appellant to file a concise statement of errors complained


5  According to the PCRA court, the Commonwealth agreed to the
reinstatement of Appellant’s right to appeal nunc pro tunc. See PCRA Court
Opinion, 4/12/2018, at 1. Although not clear from the record, the PCRA
court and Commonwealth must have believed Appellant’s contention that he
never received notice of the November 2, 2012 order dismissing his petition.
Based on the fact that this order does not even appear in the certified
record, that certainly seems plausible.

6 It is not clear from the record why there was a four-year delay in entering
this order. Moreover, also unclear is why the PCRA court filed three
separate orders at docket numbers 1586, 3261, and 3266 on October 27,
2017, and an order at docket number 7273 on December 21, 2017.
Importantly, as discussed infra, the December 21, 2017 order included an
additional footnote stating that Appellant “is hereby advised that he has
thirty (30) days from December 22, 2017 within which to file an appeal.”
Order, 12/21/2017, at n.1.

7 In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme
Court considered whether to quash an appeal where one notice of appeal
was filed for orders entered at more than one docket number. The Official
Note to Pennsylvania Rule of Appellate Procedure 341(a) provides that
“[w]here … one or more orders resolves issues arising on more than one
docket … separate notices of appeal must be filed.” In Walker, our
Supreme Court acknowledged that this rule has been applied inconsistently
in the past. Thus, it held that for appeals filed after June 1, 2018, the date
Walker was filed, “when a single order resolves issues arising on more than
one lower court docket, separate notices of appeal must be filed.” Id. at
977. Here, the notice of appeal was filed prior to Walker; thus, Appellant’s
single notice of appeal does not require us to quash on this basis.


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of on appeal pursuant to Pa.R.A.P. 1925(b). On January 29, 2018, Appellant

filed a concise statement claiming that the PCRA court erred by failing to

hold an evidentiary hearing.    The PCRA court filed an opinion on April 12,

2018.

        Before we reach the claim presented by Appellant on appeal, we

consider whether the appeal was timely filed. See Commonwealth v.

Trinidad, 96 A.3d 1031, 1034 (Pa. Super. 2014) (“It is well settled that the

timeliness of an appeal implicates our jurisdiction and may be considered

sua sponte.”).      “When the trial court issues an order reinstating an

appellant’s appeal rights, the appellant must file the appeal within 30 days of

the order reinstating the appeal rights.” Commonwealth v. Wright, 846

A.2d 730, 734 (Pa. Super. 2004). We will not quash an appeal where the

order does not inform an appellant that he or she has 30 days to file an

appeal. See id.     In this case, Appellant was not informed of this 30-day

requirement until the December 21, 2017 order was issued at docket

number 7273.      He filed an appeal on January 8, 2018, within the 30-day

period for that order. Based on the foregoing, we will not quash this appeal

for untimeliness.

        We now turn to the merits of the appeal, where Appellant contends the

PCRA court erred by failing to hold an evidentiary hearing. See Appellant’s

Brief at 8. According to Appellant, “an evidentiary hearing should have been

held to establish the factual basis of [the Rule 600] claim.” Id. at 8. The



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PCRA court concluded that Appellant was not entitled to an evidentiary

hearing because “the case was tried within the time allotted by Rule 600.”

PCRA Court Opinion, 4/12/2018, at 4.

     We consider this issue mindful of the following.

            Our review of a PCRA court’s decision is limited to
     examining whether the PCRA court’s findings of fact are
     supported by the record, and whether its conclusions of law are
     free from legal error. We view the findings of the PCRA court
     and the evidence of record in a light most favorable to the
     prevailing party. With respect to the PCRA court’s decision to
     deny a request for an evidentiary hearing, or to hold a limited
     evidentiary hearing, such a decision is within the discretion of
     the PCRA court and will not be overturned absent an abuse of
     discretion.

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (internal

citations and quotation marks omitted).

     Because    Appellant’s   Rule   600   claim   implicates   the   ineffective

assistance of counsel, we bear in mind the following.

            Counsel is presumed effective, and an appellant has the
     burden of proving otherwise. In order for Appellant to prevail on
     a claim of ineffective assistance of counsel, he must show, by a
     preponderance of the evidence, ineffective assistance of counsel
     which so undermined the truth-determining process that no
     reliable adjudication of guilt or innocence could have taken
     place.

           To prevail on his ineffectiveness claims, Appellant must
     plead and prove by a preponderance of the evidence that: (1)
     the underlying legal claim has arguable merit; (2) counsel had
     no reasonable basis for his action or inaction; and (3) Appellant
     suffered prejudice because of counsel’s action or inaction.




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Commonwealth v. Presley, 193 A.3d 436, 442 (Pa. Super. 2018) (internal

citations and quotation marks omitted).

      Furthermore, we set forth the principles regarding Rule 600. Rule 600

provides that a defendant on bail is entitled to have trial commence no later

than 365 days after the complaint date. See Pa.R.Crim.P. 600(A)(3).8 When

computing the number of pretrial days attributable to the Commonwealth

under this rule, certain delays are excluded, such as those occasioned by

defense postponements, by express defense waivers of Rule 600, by the

unavailability of the defendant or defense counsel, and an inability to locate

and apprehend the defendant. See Pa.R.Crim.P. 600(C).

      At any time prior to trial, a defendant may move for dismissal of the

case if Rule 600 has been violated. See Pa.R.Crim.P. 600(G). However, even

when the defendant has not been tried within 365 days, and even when

those days appear to be attributable to the Commonwealth, a Rule 600

motion shall nevertheless be denied if the Commonwealth proves that it

acted with due diligence in attempting to try the defendant timely and that

the circumstances occasioning the delay were beyond the Commonwealth’s

control. See Commonwealth v. Frye, 909 A.2d 853, 858 (Pa. Super.

2006); see also Pa.R.Crim.P. 600(G).




8 Amendments to Rule 600 were adopted on October 1, 2012, and came into
effect on July 13, 2013. This proceeding, however, is governed by the
previous version of Rule 600, which was in effect prior to July 13, 2013.


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      Due diligence is a fact-specific concept to be determined on a case-by-

case basis. See Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa.

Super. 2007). Although due diligence does not demand perfection, it does

require the Commonwealth to put forth a reasonable effort. See id. A

meritorious Rule 600 motion would result in dismissal of the charges against

Appellant.   See   Pa.R.Crim.P.    600(G).    Accordingly,    prejudice    will   be

established upon a showing of a meritorious claim. See Commonwealth v.

Lynn, 815 A.2d 1053, 1056 (Pa. Super. 2003). Conversely, counsel is not

ineffective for failing to pursue a meritless claim. See Commonwealth v.

Keaton, 82 A.3d 419, 426 (Pa. 2013) (“[I]t is axiomatic that [trial] counsel

will not be considered ineffective for failing to pursue meritless claims.”).

We, therefore, must assess if a Rule 600 claim would have been meritorious

in order to determine if trial counsel was ineffective for failing to pursue such

a motion prior to Appellant’s pleading guilty.

      Ordinarily, upon the proper and timely filing of a Rule 600 motion, it

would be the Commonwealth’s burden to establish that due diligence was

exercised in bringing Appellant to trial. See Commonwealth v. Colon, 87

A.3d 352, 359 (Pa. Super. 2014) (noting that the “failure of the

Commonwealth to commence trial within 365 days from the filing of the

complaint    constitutes   a   technical    Rule    600    violation[,   and]     the

Commonwealth has the burden of demonstrating by a preponderance of the

evidence that it exercised due diligence”).        The procedural posture of this



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case, however, is such that Appellant, upon collateral review, is attempting

to demonstrate trial counsel was ineffective for failing to pursue a Rule 600

claim. Thus, Appellant bears both the burden of demonstrating that there

was arguable merit to his motion, and he was prejudiced by the failure of

trial counsel to pursue the motion. See Commonwealth v. Natividad, 938

A.2d 310, 322 (Pa. 2007) (“A PCRA petitioner must exhibit a concerted effort

to develop his ineffectiveness claim and may not rely on boilerplate

allegations of ineffectiveness.”).

        On appeal, Appellant does not claim that the PCRA court erred in

concluding the Rule 600 claim was without merit; rather, he contends that

the PCRA court erred in denying him an evidentiary hearing to permit him to

develop a factual basis for his claim. See Appellant’s Brief at 8. It is well

settled that “[t]here is no absolute right to an evidentiary hearing on a PCRA

petition, and if the PCRA court can determine from the record that no

genuine issues of material fact exist, then a hearing is not necessary.”

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).               “[T]o

obtain 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 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. Hanible, 30 A.3d 426, 452 (Pa. 2011).




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      In concluding that Appellant was not entitled to an evidentiary hearing,

the PCRA court reviewed the law that applies to Rule 600 and offered the

following.

      In the instant case, [Appellant] entered his negotiated guilty
      plea 605 days after his arrest. However, the vast majority of the
      delay was due to defense motions for continuances or difficulties
      in court scheduling.     None of the delays can be properly
      attributed to the Commonwealth.      When all excludable and
      excusable time is considered, [Appellant] was brought to trial
      well within 365 days of arrest.

PCRA Court Opinion, 4/12/2018, at 4.          We recognize that this analysis of

Appellant’s Rule 600 claim is sparse and borderline inadequate.       However,

on appeal, Appellant has not presented any argument whatsoever to refute

the PCRA court’s conclusions.9 See Commonwealth v. Watkins, 108 A.3d

692, 735 (Pa. 2014) (concluding that if an appellant makes no attempt to

identify specifically the “legitimate material factual disputes” that he alleges

warranted a hearing, as well as develop relevant argument, his “claim of

PCRA court procedural error cannot succeed”); see also Commonwealth v.

Jones, 912 A.2d 268, 290 (Pa. 2006) (rejecting Jones’ assertion that his

other claims warranted a hearing when he failed both to identify and argue

with specificity what factual issues remained in contention).

      Based on the foregoing, without any argument from Appellant setting

forth any facts at all, we cannot conclude that the PCRA court’s denial of an


9 The Commonwealth provided a different, and slightly more detailed
analysis of the Rule 600 claim in concluding that the claim was without
merit. See Commonwealth’s Brief at 8-9. Appellant did not file a reply brief.


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evidentiary hearing was an abuse of discretion. See Hanible, 30 A.3d at

452-53 (concluding that “[a]ppellant has failed to satisfy [his] burden as his

reliance on speculation, and failure to assert facts, which, if believed, would

support his claim cannot be equated with a genuine issue concerning a

material fact that warrants an evidentiary hearing”). Accordingly, Appellant

is not entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 12/4/18




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