J-S58015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY M. WINKELMAN,

                            Appellant                No. 2158 MDA 2014


            Appeal from the Judgment of Sentence October 7, 2013
               in the Court of Common Pleas of Clinton County
              Criminal Division at No.: CP-18-CR-0000051-2013

BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:FILED NOVEMBER 12, 2015

        Appellant, Anthony M. Winkelman, appeals, nunc pro tunc, from the

judgment of sentence of October 7, 2013. On appeal, Appellant claims he

received ineffective assistance of plea counsel and should be granted a new

trial. For the reasons discussed below, we affirm the judgment of sentence.

        We take the underlying facts and procedural history in this matter

from the PCRA court’s November 19, 2014 opinion and our independent

review of the certified record.

        On October 31, 2011, in case number 302-2011 CR, Appellant pleaded

guilty to a single count of simple assault.       (See PCRA Court Opinion,

11/19/14, at 1). On February 13, 2012, the trial court sentenced him to a
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S58015-15


term of incarceration of not less than twenty days nor more than twenty-

three months.    (See id.).   Appellant’s maximum sentence date in this

matter was January 13, 2014. (See id.).

      On September 5, 2013, in case number 51-2013 CR, Appellant entered

a negotiated guilty plea to one count each of robbery, aggravated assault,

and theft by unlawful taking. (See N.T. Guilty Plea Hearing, 9/05/13, at 2-

3).   The charges arose from a November 12, 2012 incident, wherein

Appellant and a juvenile accomplice assaulted the victim and stole her purse.

(See id. at 3-6). In return for the plea, the Commonwealth agreed to the

following:    (1) to run the standard range sentences for robbery and

aggravated assault concurrently; (2) a sentence of five years of probation

for theft to run consecutively to the robbery and aggravated assault

sentences; and (3) to drop the remaining charges of receiving stolen

property, simple assault, disorderly conduct, possession of a controlled

substance, and harassment. (See id. at 2-3).

      On October 7, 2013, the trial court sentenced Appellant to an

aggregate term of incarceration of not less than fifty-four months nor more

than two hundred and forty months for robbery and aggravated assault, and

a consecutive term of three years’ probation for theft.           (See N.T.

Sentencing, 10/07/13, at 11). At that same hearing, the trial court revoked

Appellant’s probation on case number 302-2011 CR. (See id. at 10). The

trial court then immediately reparoled Appellant. (See id.). On October 15,


                                    -2-
J-S58015-15


2013, Appellant filed a motion to modify and reduce sentence.          In the

motion, Appellant argued that the trial court erred in not crediting him for

time served.   (See Motion to Modify and Reduce Sentence, 10/15/13, at

unnumbered page 2). Following a hearing, on October 21, 2013, the trial

court denied the motion. (See Order, 10/22/13, at 1). Appellant did not file

a direct appeal and did not seek to withdraw his guilty plea.

      On April 28, 2014, Appellant, acting pro se, filed a “Motion to Request

that the Court of Common Pleas, Commonwealth of Pennsylvania, Reopen

the Time for Appeal in Case No. 302-11 CR & Case No. 51-13 CR.” (Motion,

4/28/14, at 1).    On April 30, 2014, the court issued an order deeming

Appellant’s motion to be a PCRA petition and appointing counsel for him.

(See Order, 4/30/14, at 1).

      On August 1, 2014, Appellant filed an amended PCRA petition. In the

amended petition, Appellant claimed that he received ineffective assistance

of counsel because, in part, counsel failed to file a direct appeal, did not

properly investigate his physical and mental health problems, and did not file

any post-plea motions.        (See Amended PCRA Petition, 8/01/14, at

unnumbered page 2).

      A PCRA hearing took place on September 19, 2014, at which both

Appellant and Attorney Strouse testified. At the hearing, the Commonwealth

argued that the PCRA petition as to case number 302-2011 should be

dismissed as untimely. (See N.T. PCRA Hearing, 9/19/14, at 3). Further,


                                     -3-
J-S58015-15


Appellant acknowledged that he had erred in claiming that plea counsel did

not file any post-sentence motions. (See id.).

      Appellant testified that, after his sentencing on case number 51-2013

CR, he asked Attorney Strouse to file a direct appeal. (See id. at 6-7). On

cross-examination, Appellant acknowledged that, at the time he requested

that counsel file a direct appeal, he did not have any particular issue that he

wanted counsel to appeal. (See id. at 13-15). Attorney Strouse testified

that Appellant never asked him to file a direct appeal. (See id. at 22).

      At the end of the hearing, the PCRA court, sua sponte, raised the issue

of whether the aggravated assault and robbery charges merged for purposes

of sentencing and whether the theft merged with the robbery charge. (See

id. at 36).   When asked, Attorney Strouse was unable to recall if, at the

time, he believed the sentences merged, but stated if he had believed it he

would have made that argument to the trial court. (See id. at 36-37). He

testified that he did not believe the charges merged. (See id.). The PCRA

court ordered the parties to brief the merger issues.       (See id. at 38).

Appellant filed his brief on October 23, 2014, and the Commonwealth replied

on November 13, 2014.

      On November 19, 2014, the PCRA court issued an opinion and order.

The court dismissed the PCRA petition in case number 302-2011 as

untimely. (See PCRA Ct. Op. at 3). The court reinstated Appellant’s direct

appeal rights. (See Order, 11/19/14, at 6). Lastly, the PCRA court found


                                     -4-
J-S58015-15


that the charges of theft and robbery merged for purposes of sentencing and

vacated the sentence of probation for theft.1 (See id.).

        On December 17, 2014, Appellant filed an appeal from the “sentencing

order entered in this matter on October 7, 2013[.]”              (Notice of Appeal,

12/17/14, at 1). On December 18, 2014, the PCRA court ordered Appellant

to file a concise statement of errors complained of on appeal. See Pa.R.A.P.

1925(b).     On January 6, 2015, Appellant filed his timely Rule 1925(b)

statement. In February 19, 2015, the PCRA court issued an opinion. See

Pa.R.A.P. 1925(a).

        On appeal, Appellant raises the following questions for our review:

        1. Did [Appellant’s] trial counsel provide ineffective assistance to
           [him] by allowing [Appellant] to plea (sic) to two crimes,
           robbery and theft by unlawful taking, that should have
           merged?

        2. Did [Appellant’s] trial counsel provide ineffective assistance to
           [him] by failing to notify [Appellant] of his appeal rights of
           the sentence?

(Appellant’s Brief, at 3) (some capitalization omitted).2    3



        Both of Appellant’s issues on appeal involve claims that he received

ineffective assistance of plea counsel.        (See Appellant’s Brief, at 3).   With
____________________________________________


1
    The PCRA court did not hold a resentencing hearing.
2
  Appellant does not challenge the PCRA court’s holding that the PCRA
petition regarding case number 302-2011 CR was untimely.
3
  We note that these claims are different from the ineffective assistance of
counsel claims raised in the amended PCRA petition.



                                           -5-
J-S58015-15


two limited exceptions, ineffective assistance of counsel claims are deferred

for review pursuant to the PCRA. See Commonwealth v. Holmes, 79 A.3d

562, 563 (Pa. 2013). Ineffective assistance of counsel claims are allowed on

direct appeal only where there are: (1) “extraordinary circumstances” such

that “a discrete claim (or claims) of trial counsel’s ineffectiveness is apparent

from the record and meritorious to the extent that immediate consideration

best serves the interests of justice,” or (2) good cause and “the unitary

review . . . is preceded by the defendant’s knowing and express waiver of his

entitlement to seek PCRA review from his conviction and sentence, including

an express recognition that the waiver subjects further collateral review to

the time and serial petition restrictions of the PCRA.” Id. at 563-64.

       Here, Appellant raises his ineffective assistance of counsel claims on

direct appeal. Because Appellant’s ineffective assistance claims do not fall

into either exception discussed above, we dismiss his claims without

prejudice    to   raising   them     in   a    timely   filed   PCRA   petition. 4   See

Commonwealth v. Stollar, 84 A.3d 635, 652 (A.2d 2014), cert. denied,

134 S.Ct. 1798 (2014) (dismissing, pursuant to Holmes, appellant’s
____________________________________________


4
  We note that Appellant did not raise these claims below and did not raise
them in his Rule 1925(b) statement, thus even if the claims were properly
raised on direct appeal, he waived them.              See Pa.R.A.P. 302(a);
Commonwealth v. Truong, 36 A.3d 592, 598 (Pa. Super. 2012) (en banc),
appeal denied, 57 A.3d 70 (Pa. 2012) (new legal theories cannot be raised
for first time on appeal); Commonwealth v. Coleman, 19 A.3d 1111, 1118
(Pa. Super. 2011) (issues raised for first time in Rule 1925(b) Statement are
waived).



                                              -6-
J-S58015-15


ineffective assistance of counsel claims raised on direct appeal without

prejudice to pursue them on collateral review).

     Judgment of sentence affirmed.

     President Judge Gantman joins the Memorandum.

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2015




                                    -7-
