J-S56042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

LAVON DEWAYNE CHISLEY,

                         Appellant                   No. 2043 MDA 2015


                Appeal from the PCRA Order October 21, 2015
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0000213-2007

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:

      Appellant Lavon Dewayne Chisley appeals from the order of the Court

of Common Pleas of Centre County denying his petition and subsequent

amended petitions under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546.      Petitioner claims the PCRA court erred in denying his

request for additional time to allow his third PCRA counsel to review the

record. After careful review, we affirm.

      On September 28, 2007, a jury convicted Appellant of first-degree

murder and third-degree murder. The trial court sentenced Appellant to life

in prison.   After Appellant appealed, this Court affirmed his judgment of

sentence on July 6, 2009. Appellant was represented by Atty. Karen G. Muir

throughout this stage of his criminal proceedings.




*Former Justice specially assigned to the Superior Court.
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       On July 6, 2010, Appellant filed a timely pro se PCRA petition.1 The

PCRA court appointed Atty. Edward S. Blanarik, who represented Appellant

from August 8, 2010 to February 13, 2013. Due to the untimely death of

Atty. Blanarik, the PCRA court appointed Atty. Elizabeth A. Hunt, who

assisted Appellant in filing an Amended Petition on February 13, 2015 and a

Second Amended Petition on March 12, 2015. On September 17, 2015, the

Commonwealth filed a response to each of Appellant’s petitions along with a

motion to dismiss the petition without a hearing.

       Before the PCRA court could render a decision, Atty. Hunt filed a

motion to withdraw on September 21, 2015, as she intended to relocate with

her family outside of Pennsylvania. On September 25, 2015, the PCRA court

allowed Atty. Hunt to withdraw.                On October 2, 2015, the PCRA court

appointed Atty. Charles J. Kroboth, Jr. to represent Appellant.         The same

day, the PCRA court notified Appellant of its intent to dismiss all three of his

petitions without a hearing pursuant to Pennsylvania Rule of Criminal

Procedure 907(1).       The PCRA court gave Appellant twenty days from the

date of the notice to respond and indicated the petitions would be dismissed

without a hearing if Appellant failed to respond. The PCRA court also filed an

opinion addressing each of the issues outlined in Petitioner’s PCRA petitions.


____________________________________________


1
   See 42 Pa.C.S. § 9545(b)(1) (“Any petition under this subchapter,
including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final....”).



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      On October 19, 2015, Atty. Kroboth filed a response/objection to the

PCRA court’s notice of its intent to dismiss. Atty. Kroboth claimed he was

unaware of the notice until October 6, 2015 when he returned to his office.

Asserting he did not have sufficient time to review Appellant’s case to form

an appropriate response, Atty. Kroboth asked the PCRA court to allow him

an additional sixty days to respond. In the alternative, Atty. Kroboth asked

to withdraw his representation if the PCRA court denied his requested relief

as he believed that he would be rendering ineffective assistance of counsel.

      On October 21, 2015, the PCRA court filed an order dismissing

Appellant’s petition with all its amendments and granting Atty. Kroboth’s

motion to withdraw as counsel.       On October 22, 2015, the PCRA court

appointed Atty. Steven Trialonas to represent Appellant for appeal purposes.

Appellant filed a timely appeal and complied with the PCRA court’s direction

to file a concise statement of matters complained of on appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b).

      Appellant raises the following issues for our review:

      I.    Did the [PCRA] court committed [sic] an error of law and
            abuse of discretion in denying newly appointed counsel
            additional time to respond to a notice of intent to dismiss
            PCRA in a case that involved a 5 day jury trial on the
            charge of first degree murder[?]

      II.   Did the trial court improperly fail to rule on Appellant
            Chisley’s response/objection to the notice of intent to
            dismiss?

Appellant’s Brief, at 2.



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     Our standard of review for the denial of a PCRA petition is as follows:

     The standard of review for an order denying post-conviction
     relief is limited to whether the record supports the PCRA court's
     determination, and whether that decision is free of legal error.
     The PCRA court's findings will not be disturbed unless there is no
     support for the findings in the certified record.

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa.Super. 2016). To be

eligible for PCRA relief, the petitioner must prove by a preponderance of the

evidence that his conviction or sentence resulted from one or more of the

enumerated circumstances found in 42 Pa.C.S. § 9543(a)(2)(i).

     On collateral appeal, Appellant raises two issues that both challenge

the PCRA court’s denial of his request for an additional sixty days for his

newly appointed counsel to review the record. In reviewing a request for a

continuance, our standard of review is as follows:

     Appellate review of a trial court's continuance decision is
     deferential. The grant or denial of a motion for a continuance is
     within the sound discretion of the trial court and will be reversed
     only upon a showing of an abuse of discretion. As we have
     consistently stated, an abuse of discretion is not merely an error
     of judgment. Rather, discretion is abused when the law is
     overridden or misapplied, or the judgment exercised is
     manifestly unreasonable, or the result of partiality, prejudice,
     bias, or ill-will, as shown by the evidence or the record[.]

Commonwealth v. Norton, ___ A.3d ___, 2016 PA Super 163 (Pa. Super.

filed July 22, 2016) (quoting Commonwealth v. Brooks, 628 Pa. 524, 104

A.3d 466, 529–30 (2014)).

     Specifically, Appellant claims the PCRA court erred in denying his

request for a continuance as newly appointed counsel was only given twenty



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days to respond to the PCRA court’s notice of intent to dismiss the petition

without a hearing under Pa.R.Crim.P. 907. Appellant suggests that he was

denied the right to counsel on collateral review. We disagree.

     This Court has previously held that:

     “a bald allegation of an insufficient amount of time to prepare
     will not provide a basis for reversal of the denial of a continuance
     motion.” Commonwealth v. Ross, 57 A.3d 85, 91 (Pa.Super.
     2012) (citing Commonwealth v. Ah Thank Lee, [] 566 A.2d
     1205, 1206 ([Pa.Super.] 1989)). “An appellant must be able to
     show specifically in what manner he was unable to prepare for
     his defense or how he would have prepared differently had he
     been given more time. We will not reverse a denial of a motion
     for continuance in the absence of prejudice.” Id. (quoting
     Commonwealth v. Brown, [] 505 A.2d 295, 298 ([Pa. Super.]
     1986)).

Commonwealth v. Antidormi, 84 A.3d 736, 745–46 (Pa. Super. 2014),

appeal denied, 626 Pa. 681, 95 A.3d 275 (2014). In Antidormi, this Court

denied the defendant’s request for a continuance to allow his newly retained

counsel time to prepare for his trial. Even though Antidormi’s counsel had

been retained three days before trial was set to begin, this Court noted that

the only reason counsel requested a continuance was that he was recently

retained. This Court found Antidormi had not shown he was prejudiced by

the denial of his request for a continuance as neither Antidormi nor his

counsel explained how counsel would have prepared differently had he been

given more time. Id. at 746.

     In the same manner, the sole reason that Appellant’s counsel

requested a continuance in this case as the fact that he was newly



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appointed.    Counsel waited to file the request until three days before

Appellant’s response to the PCRA court’s Rule 907 notice was due. Appellant

has not shown prejudice as he baldly asserted that counsel had insufficient

time to prepare and did not include any assertions on how counsel could

have prepared differently if given additional time.      We also note that

Appellant had been represented by previous counsel who assisted Appellant

in filing two amended PCRA petitions, which were thoroughly reviewed and

discussed by the PCRA court in its October 2, 2015 opinion. Accordingly, we

conclude that the PCRA court did not abuse its discretion in denying

Appellant’s motion for a continuance.

      In his second issue, Appellant asserts that the PCRA court improperly

failed to rule on Appellant’s response/objection to the notice of intent to

dismiss.     Initially, we note that besides this one-sentence allegation,

Appellant does not explain why he believes the PCRA court failed to make a

ruling. This issue is waived by Appellant’s lack of development of the claim.

Commonwealth v. Woodard, 129 A.3d 480, 509 (Pa. 2015) (holding that

“[w]here an appellate brief fails to ... develop an issue in any other

meaningful fashion capable of review, that claim is waived. It is not the

obligation of an appellate court to formulate appellant's arguments for him”).

      Moreover, the trial court did rule on Appellant’s request for additional

time in its October 21, 2015 order which also denied Appellant’s petition with

all his amendments. As Atty. Kroboth had alternatively asked to withdraw if

his requested extension was not granted, the PCRA court resolved this

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request by granting Atty. Kroboth’s motion to withdraw in the October 21,

2015 order. As such, this claim is meritless.

      For the foregoing reasons, we find the PCRA court did not err in

denying Appellant his requested relief.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2016




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