J-S40032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
             v.                            :
                                           :
LEONARD S. JACKSON,                        :
                                           :
                   Appellant               :           No. 1622 EDA 2015

                   Appeal from the PCRA Order May 15, 2015
             in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0608891-2004

BEFORE: BOWES, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 22, 2016

        Leonard S. Jackson (“Jackson”) appeals the Order dismissing his

Petition filed pursuant to the Post Conviction Relief Act.1 We affirm.

        The PCRA court set forth the relevant factual and procedural history in

its Opinion, which we adopt herein by reference. See PCRA Court Opinion,

12/9/15, at 1-2.

        On appeal, Jackson raises the following issue for our review:

“Whether trial counsel was ineffective for failing to [file a] Pa.R.Crim.P. 600

motion before the trial court[,] because [Jackson] was tried after 365 days

had expired[,] and his right to a speedy trial was violated[?]”          Brief for

Appellant at 3.

        Jackson contends that he was brought to trial 109 days after the

speedy trial limitation period of 365 days had expired, and that his trial



1
    See 42 Pa.C.S.A. §§ 9541-9546.
J-S40032-16


counsel was ineffective for failing to file a Pa.R.Crim.P. 600 motion on his

behalf.   Id. at 11.    Jackson asserts that, because his arrest warrant was

issued on April 7, 2004, his trial should have commenced by April 7, 2005.

Id. Jackson claims that, because his trial did not commence until July 25,

2005, his right to a trial within 365 days was violated. Id. at 11-12 (citing

Pa.R.Crim.P. 600(A)(2)). Jackson argues that he did not take any action to

delay the commencement of his trial, and that he is a victim of judicial

delay.    Brief for Appellant at 16-17.   Jackson contends that there is no

evidence that the delay was beyond the Commonwealth’s control. Id. at 17.

According to Jackson, there was no reasonable basis for trial counsel’s

inaction, and as a result of counsel’s inaction, he has been prejudiced. Id.

at 20.2

      In its Opinion, the PCRA court set forth the relevant law, addressed

Jackson’s issue, and determined that it lacks merit.        See PCRA Court

Opinion, 12/9/15, at 2-4. We agree with the reasoning of the PCRA court

and affirm the dismissal of Jackson’s Petition on this basis. See id.

      Order affirmed.

2
 In his brief, Jackson also contends that the PCRA court erred by denying his
request for an evidentiary hearing. Brief for Appellant at 17, 20. However,
this issue was not identified in Jackson’s Statement of the Questions
Presented, nor did Jackson include a separate argument in his brief
regarding this issue. See Pa.R.A.P. 2116 (providing that “[n]o question will
be considered unless it is stated in the statement of questions involved or is
fairly suggested thereby.”); see also Pa.R.A.P. 2119(a) (providing that
“[t]he argument shall be divided into as many parts as there are questions
to be argued; and shall have at the head of each part … the particular point
to be treated therein.”). Therefore, we decline to consider this issue.


                                  -2-
J-S40032-16


     Judge Mundy joins the memorandum.

     Judge Bowes files a concurring memorandum in which Judge Mundy

and Judge Musmanno join.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/22/2016




                             -3-
                                                                                                       Circulated 05/13/2016 04:21 PM




      IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
          FIRST JUDICIAL DISTRICT'l)F PENNSYLVANIA
                  CRIMINAL TRIAL DIVISION
                                                                                                                FILED
Commonwealth of Pennsylvania
                                                                                                                  DEC O 9 2015
                                                                                                            Criminal Appeals Unit
v.                                                                         CP-51-CR-0608891-2004          FirstJudicia\ Districtof PA

LeonardJackson                    CP-51-CR-0608891-2004          Comm.
                                                                Opinion
                                                                          v. Jackson,   Leonard   S.




                                        llll 111111111111111111111
                                                           7380039641
Robinson, J.
                                               -,....~'.


                                                      OPINIOtf''-


                         FACTUAL AND PROCEDURAL HISTORY

        Appellant Leonard Jackson was found guilty by a jury on July 28, 2005 of aggravated

assault and discharge of a firearm into an occupied S!!ucture. On September 23, 2005 this Court

sentenced Jackson to a mandatory minimum sentence of five to ten years imprisonment for

aggravated assault. Jackson was also sentenced to a concurrent term of one to seven years

 imprisonment for VUF A.

        Jackson, who was at that time represented by-Douglas Earl, Esq., filed a direct appeal;

 that appeal was dismissed by the Pennsylvania Superior Court on September 25, 2006 for failure

 to file a docketing statement.

        Jackson filed a first PCRA Petition following this, and his direct appellate rights were

 restored by agreement of the Commonwealth. The sole issue raised by Jackson on direct appeal




                                                                    1
                                                       '5.~.-
was that the evidence was insufficient to support his convictions.        The Pennsylvania Superior

Court affirmed Jackson's judgment of sen\ence on August 3, 2007 .
                                                        ..• ~·"(-1:"i-·




       Jackson then filed a second PCRA petition requesting that he be permitted to file a

Petition for Allowance of Appeal with the Pennsylvania Supreme Court. The Commonwealth

once again agreed and on October 28, 2009 the Pennsylvania Supreme Court denied Jackson's

Petition for Allowance of Appeal.


        Jackson filed the instant PCRA Petition on September 16, 2010, claiming ineffective

assistance of counsel. Appointed counsel, Elayne Bryn, Esq., filed an Amended Petition raising

the sole claim that trial counsel was ineffective for failing to litigate a Rule 600(g) motion

immediately prior to trial.


        On March 31, 2015, the Commonwealth filed a Motion to Dismiss. This Court dismissed

Jackson's PCRA Petition as meritless and this appeal followed.




                                            DISCUSSION

        Jackson's sole claim in his PCRA Petition is that his trial attorney was ineffective for

 failing to litigate a speedy trial motion pursuant to Pa.R.Crim.P. 600(g). To successfully claim

 trial counsel ineffectiveness, a petitioner must demoiistr;te that the issue, argument, or tactic that

 trial counsel failed to assert or use was of arguable merit and that counsel had no reasonable

 strategic basis for failing to raise that issue. Commonwealth v. Pursell, 495 A.2d 183 (1985).

 Additionally, a petitioner must show that but for the error or omission, there is a reasonable

 probability the outcome of the proceeding~~would havebeen different. Commonwealth v. May,

 898 A.2d 559 (2006).

                                                    2
       Beyond that test, however, courts recognize that claims of ineffectiveness should not be

considered in a vacuum, Commonwealth Vi Ray, 751 A.2d 233 (Pa.Super. 2000) and therefore a
                                                        -::•

petitioner must make some sort of offer of proof, presenting facts upon which a PCRA court

could conclude that trial counselwas ineffective. Commonwealth v. Pettus, 424 A.2d 1332

(1981).

          Here, Jackson asserts, without any supporting-evidence or analysis, that trial counsel

would have prevailed on a Rule 600(g) motion because he was brought to trial more than 365

days after his arrest. For the purposes of this Opinion, this Court assumes Jackson is correct that

April 7, 2004 is the correct date from which to calculate the mechanical run date, resulting in a

mechanical run date of April 7, 2005. Pa.R.Crim.P. 600(a)(3).


          Beyond that, however, Jackson ignores the fact that courts must also calculate

"excludable time", which is attributable to the defense, and "excusable time", which represents

periods of delay not attributable to the Commonwealth. Pa.R.Crim.P. 600(c), Commonwealth v.

Ramos, 936 A.2d 1097 (Pa. Super. 2007).

          The Commonwealth identifies several periods of time that it argues should be considered

either excludable or excusable. Jackson himself, through counsel in his Amended PCRA

Petition, characterizes the months leading up to trial as a period of court delay, not

 Commonwealth delay:

          On February 2, 2005, the court listed the case for trial on April 4, 2005. On April 4, 2005
          the court relisted the case for trial on June 30, 2005. On June 30, 2005, the case was
          relisted for trial on July 25, 2005.

                                                          . .... ,-:,>-~~-
          Amended PCRA Petition at paragraph 11. Jackson's characterization of the period

 between April 4, 2005 and July 25, 2005 as one of court continuances, rather than

                                                    3
Commonwealth-requested          continuances, is confirmed by the record and establishes that no delay

                                                                             1.
after April 4, 2005 was attributable to the Commonwealth                          Judicial delay or court congestion

can support the extension of the Rule 600(g) mechanical run date because it is excusable delay.

Commonwealth v. Spence, 627 A.2d 1077 (Pa. Supe~:).996).

        The record clearly reflects that the Commonwealth was prepared to bring Jackson to trial

on April 4, 2005. Because that dates falls before even the mechanical run date in this case,

Jackson's trial counsel would not have prevailed had he litigated a speedy trial motion2. For that

reason, Jackson has failed to meet his burden under the''PCRA and his Petition was properly

dismissed.

                                                 CONCLUSION

         For the foregoing reasons, this Court respectfully requests that the dismissal of Jackson's

PCRA Petition be affirmed.




                                                                                                    BY THE COURT:
                                                                   ·le'-'·




                                                                                  ~1<l~
                                                                                                       ROBINSON, J.




 I
   If Jackson has some information, other than what is reflected on the Court's docket, about the reasons for any
 delay after April 4, 2005, he has failed to present that information to this Court.
 2
   This Court notes that the Commonwealth also identifies several other periods of time that could be considered
 either excludable or excusable time. This Court finds it unnecessary to discuss each of those periods of time
 because even assuming they are all not excludable or excusable, Jackson has still failed to meet his burden under the
 PCRA.                                             .

                                                           4
