J-S14045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA


                        v.

    JESSE WADE

                             Appellant                No. 638 EDA 2017


                  Appeal from the PCRA Order January 19, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1206791-2001


BEFORE: OTT, J., MCLAUGHLIN, J., and RANSOM, J.*

MEMORANDUM BY RANSOM, J.:                             FILED APRIL 27, 2018

       Appellant, Jesse Wade, appeals from the order entered January 19,

2017, denying his petition for collateral relief filed under the Post Conviction

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

       On February 24, 2004, Appellant pleaded guilty to one count each of

third degree murder, robbery, criminal conspiracy, and possessing an

instrument of crime.1 On the day Appellant was to be sentenced, he filed a

pre-sentence motion to withdraw his plea, asserting his innocence. However,

following a colloquy on the record, the court denied the motion and proceeded

to sentencing. On March 17, 2004, Appellant was sentenced to twenty to forty

years of incarceration for murder, a consecutive five to twenty years of

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118 Pa.C.S. §§ 2502(c), 3701(a)(1)(i), 903, and 907, respectively.
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*    Retired Senior Judge assigned to the Superior Court.
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incarceration for robbery, and concurrent terms of five to twenty years for

conspiracy and two and one-half to five years of incarceration for PIC. This

amounted to an aggregate sentence of twenty-five to sixty years of

incarceration.

      Appellant timely appealed his judgment of sentence, but his appeal was

dismissed due to his failure to file an appellate brief. Following the successful

litigation of a PCRA petition, Appellant’s direct appeal rights were reinstated

nunc pro tunc. On appeal, this Court found that the lower court had denied

Appellant’s motion prior to receiving evidence as to whether withdrawal of the

plea would prejudice the prosecution, and it made no findings in this regard.

See Commonwealth v. Wade, 970 A.2d 484, *6-7 (Pa. Super. 2009)

(unpublished memorandum).        Thus, the matter was remanded for further

proceedings. Id.

      The trial court conducted an evidentiary hearing in March 2010 and

determined the Commonwealth had not been substantially prejudiced by

Appellant’s request to withdraw his plea. See Commonwealth v. Wade, 31

A.3d 749, *6-7 (Pa. Super. 2011) (unpublished memorandum). Accordingly,

the trial court vacated Appellant’s judgment of sentence and granted him a

new trial. The Commonwealth appealed, and a panel of this Court found the

trial court had erred in not finding prejudice, and ordered, on remand, for the

trial court to reinstate Appellant’s guilty plea and his judgment of sentence.

Id. at *15.




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       Appellant’s petition for allocatur was denied. See Commonwealth v.

Wade, 34 A.3d 830 (Pa. 2011) (unpublished memorandum).           The United

States Supreme Court denied certiorari. See Wade v. Pennsylvania, 132

S. Ct. 2113 (2012).2

       Appellant pro se timely filed a PCRA petition on September 21, 2012,

and an amended petition on January 11, 2013, raising claims of prosecutorial

misconduct due to withholding evidence, ineffective assistance of counsel for

failing to obtain x-rays taken of Appellant’s body, judicial impropriety,

improper warrantless arrest, and violations of due process during his

sentencing. Counsel was appointed to represent him. While still represented

by counsel, Appellant purported to file a second amended petition; however,

this petition was a legal nullity. See Commonwealth v. Ali, 10 A.3d 282,

293 (Pa. 2010) (noting that a pro se filing by a represented defendant

constitutes “legal nullity”). In December 2016, PCRA counsel filed a letter

pursuant to Turner/Finley3 and an accompanying motion to withdraw.

       On January 19, 2017, the PCRA court sent Appellant notice pursuant to

Pa.R.Crim.P. 907 that his petition would be dismissed without a hearing.
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2 Appellant’s judgment of sentence thus became final on April 30, 2012, when
the United States Supreme Court denied Appellant’s writ of certiorari. Wade,
132 S. Ct. 2113; see also 42 Pa.C.S. § 9545(b)(3) (noting that a judgment
of sentence becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United states).

3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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Before the court granted counsel’s motion and dismissed the petition,

Appellant pro se filed a notice of appeal.4 On February 28, 2017, the PCRA

court issued two orders, 1) directing Appellant’s compliance with Pa.R.A.P.

1925(b), and 2) formally dismissing Appellant’s PCRA petition and granting

counsel’s petition to withdraw.

       The court’s Pa.R.A.P. 1925(b) order provided that Appellant must file of

record in the lower court and serve on the PCRA court his concise statement

within twenty-one days of the date of the order, or by March 21, 2017. See

Order, 2/28/17, at 1. The order also advised Appellant that any issues not

contained within the concise statement would be deemed to have been

waived, and that while the court would extend the filing period for good cause

shown, Appellant must request an extension in writing prior to the expiration

of the filing period or demonstrate extraordinary circumstances to justify nunc

pro tunc relief.

       Appellant did not file his statement by March 21, 2017, nor did he

request an extension in writing. The PCRA court issued its opinion on May 1,

2017, finding Appellant had waived all of his issues for purposes of appeal.5

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4 Pa.R.A.P. 905(a)(5) provides that when a notice of appeal is filed after the
announcement of a determination, but before the entry of an appealable
order, we treat the notice as filed after such entry and on the day thereof.
See also Commonwealth v. Cooper, 27 A.3d 994, 1007-08 (Pa. 2011).

5 The PCRA court notes that its opinion was issued after the expiration of its
sixty-day deadline to transmit the record. See PCRA Court Opinion (PCO),
5/1/17, at 2-3 (citing Pa.R.A.P. 1931(a)).

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On June 19, 2017, Appellant filed a “concise statement of matters complained

of on appeal nunc pro tunc,” claiming that he had submitted his concise

statement on March 15, 2017, by placing it in the mailbox at SCI-Graterford.

He also provided a cash slip showing that he had sent mail to the court on

March 15, 2017.        While it does not appear that the court received this

statement, as it does not appear on the docket and was not served on the

judge, nevertheless, we will address Appellant’s appeal on the merits.6

       Appellant raises two issues for our review:

       1. Did the trial court err by dismissing the PCRA petition without
       conducting an evidentiary hearing given that the claim that the
       guilty plea was unknowing was meritorious?

       2. Does the trial court’s dismissal of the PCRA petition without an
       evidentiary hearing constitute a due process violation?

See Appellant’s Brief at 7.7

       We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

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6 See, e.g., Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super.
2006) (noting that pursuant to the prisoner mailbox rule, a document is
deemed filed when placed in the hands of prison authorities for mailing). To
prove an appeal timely filed, an appellant may include a “cash slip” indicating
that the Department of Corrections charged the prison bank account for
postage. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).

7Appellant also raises the claim that the PCRA court erred by submitting a
waiver opinion. See Appellant’s Brief at 7. However, as we address his claims
on the merits, this issue is resolved.

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support for them in the certified record. Commonwealth v. Brown, 48 A.3d

1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995

A.2d 1184, 1189 (Pa. Super. 2010)).

        First, Appellant claims that the court erred by dismissing his petition

without an evidentiary hearing, because his claim that his guilty plea was

unknowing was meritorious. See Appellant’s Brief at 14. Appellant admits

that although counsel’s actions may have been reasonable at the time of the

plea,    counsel   should   have   conducted   further   investigation   following

Appellant’s motion seeking to withdraw his plea. Id. at 14-17. Essentially,

Appellant argues that 1) counsel should have investigated the individual who

drove Appellant to the hospital, because this person could substantiate the

fact that he was an innocent bystander, and 2) counsel should have obtained

the projectile taken from Appellant, which “would have demonstrated that

Appellant had been shot by . . . one of the robbers.” Id. at 17.

        However, issues that are not raised in the lower court are waived and

cannot be raised for the first time on appeal. See Pa.R.A.P. 302; see also 42

Pa.C.S. § 9543(a)(3) (“To be eligible for relief under th[e PCRA], the petitioner

must plead and prove by a preponderance of the evidence . . . [t]hat the

allegation of error has not been . . . waived.”); see also Commonwealth v.

Spotz, 18 A.3d 244, 275 n.17 (concluding that the appellant’s claim was

waived for failure to have presented it to the PCRA court).

        In Appellant’s first petition, Appellant’s sole argument concerning his

plea was checking a box that stated his guilty plea was unlawfully induced.

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See PCRA Petition, 9/21/12, at 2. He offered no other facts, evidence, or

argument.       In Appellant’s amended petition, Appellant contends that the

government had withheld favorable evidence, namely, hospital x-rays of his

bullet wound, and that counsel was ineffective for failure to obtain those x-

rays.    See Amended Petition, 1/11/13, at 3-4.         Additionally, Appellant

contended that the trial court had violated the code of judicial conduct, and

that his warrantless arrest was a due process violation. Id. at 5-9. Nowhere

in the petition did he claim that his guilty plea was involuntarily entered.

Finally, in his second amended petition, Appellant asserted that he was serving

an illegal, mandatory minimum sentence pursuant to Alleyne v. United

States, 133 S. Ct. 2151 (2013).8 Nowhere in the petition did he claim that
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8 Appellant has abandoned this claim on appeal, but we may address it sua
sponte. Commonwealth v. Batts, 163 A.3d 410, 434 (Pa. 2017) (observing
that a challenge to the legality of a sentence may be raised by an appellate
court sua sponte); Commonwealth v. Barnes, 151 A.3d 121, 122 (Pa. 2016)
(holding that an Alleyne challenge implicates the legality of sentence and is,
therefore, not waivable). Upon review, we conclude that Appellant is not
serving an illegal sentence. Despite his contention that he received a five-
year, mandatory sentence pursuant to 42 Pa.C.S. § 9712, the official record
belies that claim. There is no mention of section 9712 during the guilty plea
colloquy nor during the sentencing hearing. The official docket makes no
mention of section 9712, and PCRA counsel stated in his Turner/Finley no-
merit letter that section 9712 had not been applied to Appellant. Accordingly,
his claim is without merit. Moreover, even if Appellant had been sentenced
pursuant to section 9712, he would be entitled to no relief. Appellant’s
sentence was made final in 2012, when the United States Supreme Court
denied his petition for certiorari. Alleyne was not decided until June 17, 2013.
Subsequently, it has been determined that the Alleyne decision is not entitled
to retroactive application. See Commonwealth v. Washington, 142 A.3d
810 (Pa. 2016) (concluding that Alleyne applies only to cases pending on
direct appeal as of June 17, 2013); Commonwealth v. DiMatteo, 177 A.3d



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his guilty plea was involuntarily entered. Accordingly, Appellant has waived

his claim that his plea was involuntary. Spotz, 18 A.3d at 275 n.17.

       Second, Appellant claims that the trial court’s dismissal of his PCRA

petition without a hearing was a due process violation. See Appellant’s Brief

at 18.   Appellant contends that he has a liberty interest in a full and fair

proceeding, and that he alleged copious facts challenging trial counsel’s

effectiveness such that a hearing was warranted. Id. at 19. These facts were,

presumably, those discussed in his previous issue. Id. However, he does not

repeat those facts nor elaborate on how those facts impacted a due process

claim. Id.

       In this case, the PCRA court dismissed Appellant’s petition without a

hearing. See PCRA Court Order, 1/19/17 (citing in support Pa.R.Crim.P. 907).

There is no absolute right to an evidentiary hearing. See Commonwealth

v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). Accordingly, the trial

court’s dismissal of a petition without a hearing is not automatically a due

process violation. See Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa.

2009) (finding no due process violation in denying petitioner an evidentiary

hearing where the proffered facts do not entitle him to relief). On appeal, we

examine the issues raised in light of the record “to determine whether the

PCRA court erred in concluding that there were no genuine issues of material

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182, 192 (Pa. 2018) (limiting collateral relief based upon Alleyne to timely
petitions where the petitioner’s judgment of sentence was not final before
Alleyne issued).

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fact and denying relief without an evidentiary hearing.” Springer, 961 A.2d

at 1264.

      We have already found Appellant’s claim regarding the voluntariness of

his plea waived. Further, even if not waived, the facts as alleged in Appellant’s

brief were speculative at best, and did not establish an issue of material fact

that would require a hearing. See, e.g., Commonwealth v. Durst, 559 A.2d

504, 505 (Pa. 1989) (noting that an offer of proof must be made alleging

sufficient facts upon which a reviewing court can conclude that counsel was

ineffective); see also Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa.

2014) (noting that if the petitioner’s offer of proof is insufficient to establish a

prima facie case, an evidentiary hearing is unwarranted).             Accordingly,

Appellant’s claim lacks arguable merit, and no relief is due. See Springer,

961 A.2d at 1267; see also Eichinger, 108 A.3d at 849.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/18




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