J-S88040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
         Appellee                           :
                                            :
          v.                                :
                                            :
CARLOS QUILES,                              :
                                            :
         Appellant                          :    No. 3347 EDA 2015

                Appeal from the PCRA Order October 5, 2015
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0003534-2009

BEFORE: OLSON, RANSOM, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED FEBRUARY 07, 2017

     Carlos Quiles (Appellant) appeals from the order entered on October 5,

2015, which denied his petition filed pursuant to the Post Conviction Relief

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

     As this Court explained, previously,

     The facts giving rise to the charges herein involved Appellant
     and numerous other individuals who, from June 2004 through
     May 2008, engaged in the fraudulent transfer of real property.
     Participants in the criminal enterprise forged documents that
     purported to allow the holders of those documents to enter
     vacant houses. The documents could cost the holders anywhere
     from $100 to $1,000. The individuals then could select and
     “purchase” a home at various amounts and would be issued a
     notarized transfer deed, which could be recorded. Unfortunately
     for the victims, the deeds were fake and the properties’ lawful
     owners did not authorize any of the sales. [Appellant was tried
     with two other co-defendants. One co-defendant, Richard Smith,
     was tried in absentia after he absconded. Twelve other
     coconspirators pled guilty.]




*Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Quiles, 48 A.3d 468 (Pa. Super. 2012) (unpublished

memorandum at 1-2) (footnote omitted).

     The PCRA court summarized the relevant background underlying this

matter as follows.

           On February 12, 2010, Appellant was found guilty after a
     jury trial, presided over by Honorable Rose Marie DeFino-
     Nastasi, of corrupt organizations, 18 Pa.C.S. § 911, [graded] as
     a felony of the first degree; twenty-six (26) counts of theft by
     deception, 18 Pa.C.S. § 3922, each [graded] as a felony of the
     third degree; criminal conspiracy, 18 Pa.C.S. § 903, [graded] as
     a felony of the third degree; fourteen (14) counts of forgery, 18
     Pa.C.S. § 4101, each [graded] as a felony of the third degree;
     and thirteen (13) counts of tampering with public records, 18
     Pa.C.S. § 4911, each [graded] as a felony of the third degree.

           On April 30, 2010, Appellant was sentenced to eight (8) to
     twenty (20) years [of incarceration] for the corrupt organizations
     conviction; ten (10) years [of] probation on the conspiracy
     conviction, to run consecutively; and three (3) years [of]
     probation on each of the theft by deception convictions, to run
     concurrently to each other and to the probation sentence on the
     conspiracy conviction.

          On April 4, 2012, the Superior Court affirmed the
     judgment of sentence.

           On May 16, 2012, Appellant filed a [PCRA] petition.

           On March 27, 2014, J. Matthew Wolfe, Esq. filed an
     amended PCRA petition, claiming that trial counsel was
     ineffective for failing to file a post sentence motion.

           On June 23, 2015, the Commonwealth filed a motion to
     dismiss.

           On August 26, 2015, the [PCRA c]ourt issued a 907 notice.

           On October 5, 2015, the PCRA court formally dismissed
     Appellant’s petition.



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            On November 3, 2015, Appellant filed the instant appeal to
      the Superior Court.

PCRA Court Opinion, 1/29/2016, at 1-2 (unnecessary capitalization and

citations omitted).

      In his brief to this Court, Appellant asks us to consider whether the

PCRA court erred in “failing to grant PCRA relief where trial counsel failed to

file post[-]sentence motions to preserve the issue of the sentence being

excessive?” Appellant’s Brief at 8.

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s rulings are supported by the evidence of

record and free of legal error.       Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010).           “It is well-established that counsel is

presumed effective, and the defendant bears the burden of proving

ineffectiveness.” Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

To overcome this presumption, Appellant must show each of the following:

“(1) the underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel’s deficient performance.”      Id.   Appellant’s claim will be

denied if he fails to meet any one of these three prongs. Id.

      Here, Appellant argues that trial counsel failed to provide effective

assistance of counsel because he did not preserve Appellant’s challenge to

the discretionary aspects of his sentence, a claim that this Court found


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waived on direct appeal. Quiles, 48 A.3d 468 (unpublished memorandum at

3-4) (“As Appellant failed to submit a timely post-sentence motion and did

not preserve [his challenge to the discretionary aspects of his sentence]

during his sentencing, his claim is waived.”).

      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to determine: (1) whether the
         appeal is timely; (2) whether Appellant preserved his
         issue; (3) whether Appellant’s brief includes a concise
         statement of the reasons relied upon for allowance of
         appeal with respect to the discretionary aspects of
         sentence; and (4) whether the concise statement raises a
         substantial question that the sentence is appropriate under
         the sentencing code.... [I]f the appeal satisfies each of
         these four requirements, we will then proceed to decide
         the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

      Appellant argues that his claim raises a substantial question and

contends that, but for trial counsel’s failure to preserve the issue in a timely

post-sentence motion, this Court could have addressed the merits of his

discretionary aspects challenge on direct appeal and there is a reasonable

probability he would receive a lesser sentence.1 Appellant’s Brief at 11-15.


1
  The record reflects that Appellant’s direct appeal was timely-filed, that
Appellant’s counsel included his discretionary aspects claim in his
supplemental concise statement, the trial court addressed the claim in its
1925(a) opinion, and that Appellant’s brief to this Court contained a concise
statement pursuant to Pa.R.A.P. 2119(f).


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Thus, Appellant argues that his underlying issue has arguable merit, there

was no reasonable basis for counsel’s omission, and he was prejudiced by

counsel’s inaction. Id.

      Appellant does not assert that he asked trial counsel to file a post-

sentence motion on his behalf. However, at sentencing Appellant was made

aware of his appellate rights, particularly his right to file post-sentence

motions. N.T., 4/30/2010, at 108-109. Moreover, the record reflects that

Appellant’s direct appeal was timely-filed, that Appellant’s counsel included

his discretionary aspects claim in his supplemental concise statement and

the trial court addressed that claim in its 1925(a) opinion, and that

Appellant’s brief to this Court contained a concise statement pursuant to

Pa.R.A.P. 2119(f).

      Appellant alleges that his underlying discretionary aspect claim, that

his statutory maximum sentence for the charge of corrupt organizations is

manifestly excessive and the court abused its discretion by failing to place

on the record its reason for exceeding the applicable guidelines, raises a

substantial question. Appellant’s Brief at 14-15. We agree and conclude that

Appellant’s claim has arguable merit. See Commonwealth v. Coulverson,

34 A.3d 135, 143 (Pa. Super. 2011) (holding that a claim that the

sentencing court imposed statutory maximum sentences in excess of the

applicable guidelines without offering specific reasons for the sentence,

which “comport with the considerations required in section 9721(b)[,]”



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raises a substantial question); see also Commonwealth v. Sheller, 961

A.2d 187, 190 (Pa. Super. 2008) (stating that an “[a]ppellant’s contention

that the sentencing court exceeded the recommended range in the

sentencing guidelines without an adequate basis raises a substantial

question for this Court to review.”).

      In this case, the sentencing court offered the following explanation for

Appellant’s sentence.2

            The [c]ourt has read all of the victim impact letters. The
      [c]ourt has reviewed the pre-sentence [investigations], and the
      memorandum from the Commonwealth on sentencing, and there
      are a number of issues there.

                                         ***

            [Appellant], you posed like you were a lawyer, a notary --
      you were a businessman in the community. [Co-defendant Troy
      Baylor] could say that he was a community leader. You are the
      businessman in the community. So, what the people in the
      community see is that you work in a law office; you have legal
      documentation, paperwork that you take care of. You help
      people with the problems in the community. You have this office
      set up so that you are visible as a businessman in the
      community, who could be trusted. Once again, an imposter.

             You really took the trust out of people. They believed that
      you were in a position of trust, and that you would help them,
      and that’s why they came to you, and you took advantage of
      that, the two of you, and [co-defendant Richard] Smith.

            … Mr. Smith was a little bit more of a strong arm. [Co-
      defendant Baylor is] the sweet talker, the fast talker, like [he]
      did just now, when [he] got up, that message [he was] trying to
      give, that I didn’t even understand, and [Appellant] is the quiet

2
  Appellant was sentenced on April 30, 2010, along with two of his co-
defendants. The following are those parts of the notes of testimony directed
toward Appellant.


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     businessman, the quiet businessman. It is a con.       The whole
     thing is a con, and it is an organized con.

           [Appellant], you never paid taxes. I re-read your pre-
     sentence report.      All these jobs you have done in the
     community; how dare you. You stole money from all of these
     people. You lived the good life. You raised your children and
     paid child support, but you never paid taxes. That is absolutely
     amazing.

           You were a drug dealer, with three convictions for drugs.
     You received [three] years. You received a Federal drug
     sentence of [three] years after a State sentence of [three] years.
     So, you were a fairly big time drug dealer, and you moved up.

           First, you destroyed the neighborhood with drugs. That is
     a blight on the neighborhood. Then, once you got out, you
     figured that it would be more profitable if you presented yourself
     as a businessman. Then you could steal all the money from the
     community that you had already put drugs into, over the years.
     Then you could steal all of the money from the people in the
     community, because when the houses are vacant or run down,
     or families are having problems, you swoop in for the kill and
     take their houses.

           Your behavior, the two of you, and if Mr. Smith was here,
     is beyond greed. It is more sinister. It is really more sinister
     than greed, because this isn’t just about money. This is so much
     worse, the fraud you perpetrated on all of these individuals.

                                      ***

           As far as the sentencing in this case, the [c]ourt has
     thought long and hard about this sentencing. The behavior of
     these [d]efendants was outrageous, and these [d]efendants will
     do jail time. However, as far as the statement by the District
     Attorney that if they don’t get 50 years or 60 years [of
     incarceration], then that would not be doing justice to the
     victims in this case -- that is an inaccurate statement.

           The [j]udge really does have to balance. They need to
     serve time. They need to understand the destruction that they
     caused. They need to be incapacitated because you two are
     dangerous out on the street, financially, emotionally, physically,


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       to the other people, because you make them sick, because you
       make them so upset, but also, the [c]ourt takes into
       consideration that if the [c]ourt [was] to sentence on each count
       separately, the amount of time would be really too much,
       compared to the crimes that we have before us, and the [c]ourt
       needs to balance that.

                                         ***

             [Appellant], although you have been called the
       mastermind of the organization, I believe you were probably the
       businessman-looking one, the businessman, and perhaps the
       mastermind.     The only difference [between you and co-
       defendant Baylor] is that you weren’t involved in as many
       properties as Mr. Baylor. That is about the only difference that I
       see.

            As a result, my sentence is as follows: On the charge of
       Corrupt Organizations, 8 to 20 years of incarceration. …

N.T., 4/30/2010, at 86, 89-93, 104.

       Based on the forgoing, the sentencing court considered appropriate

factors in fashioning Appellant’s sentence. Further, “[w]here the sentencing

court had the benefit of a presentence investigation report ..., we can

assume the sentencing court was aware of relevant information regarding

the defendant’s character and weighed those considerations along with

mitigating statutory factors.” Commonwealth v. Griffin, 65 A.3d 932, 937

(Pa.   Super.   2013)   (internal   quotation   marks   and   citation   omitted).

Accordingly, this Court agrees with the PCRA court’s assessment that the

sentence imposed was not manifestly excessive under the circumstances of

this case and no abuse of discretion attended its imposition. PCRA Court

Opinion, 1/29/2016, at 2-3.



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     Thus, Appellant is unable to prove that he suffered prejudice and

counsel cannot be deemed ineffective for failing to file a post-sentence

motion. See Commonwealth v. Watson, 835 A.2d 786, 799 (Pa. Super.

2003) (concluding an appellant’s ineffectiveness claim failed where the

underlying discretionary aspects of sentencing claim lacked merit).

     Order affirmed.

     Judge Ransom joins.

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/7/2017




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