J. A20015/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
CLAUDIO FERRER JR.,                       :         No. 1561 MDA 2018
                                          :
                          Appellant       :


          Appeal from the Judgment of Sentence Entered May 4, 2017,
                  in the Court of Common Pleas of York County
               Criminal Division at No. CP-67-CR-0007348-2015


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED NOVEMBER 18, 2019

        Claudio Ferrer, Jr., appeals from the May 4, 2017 aggregate judgment

of sentence of 15 to 30 months’ imprisonment imposed after a jury found him

guilty of possession with intent to deliver marijuana (“PWID”), possession of

a controlled substance (cocaine), and possession of drug paraphernalia.1 After

careful review, we affirm.

        The trial court summarized the relevant facts and procedural history of

this case as follows:

              On August 28, 2015, Officer Timothy Clymer of the
              York County Police Department initiated a traffic stop
              of [appellant’s] vehicle for a suspended registration
              plate.    Officer Clymer and his partner, Officer
              Daniel Kling, detected the unmistakable aroma of
              fresh marijuana emanating from the vehicle. A lawful
              warrantless search of the vehicle yielded two (2) tied
              and knotted clear plastic baggies containing

1   35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively.
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          crack-cocaine, twenty-two (22) smaller zipped
          baggies containing marijuana, packaging materials,
          and a digital scale. Officer Clymer placed [appellant]
          under arrest after a field test of the substances
          returned positive results.

          George Marros, Esquire [(hereinafter, “trial counsel”)]
          represented [appellant] during trial proceedings. In
          advance of trial, the Commonwealth calculated
          [appellant’s] prior record score as “3” and
          subsequently communicated this calculation to [trial]
          counsel. A jury trial was held on November 16, 2016,
          through November 17, 2016. During trial, the
          Commonwealth withdrew [the PWID cocaine charge.]
          At the conclusion of the trial, a jury unanimously
          convicted [appellant] of possession of drug
          paraphernalia, [PWID] marijuana, and possession of
          cocaine. [The trial court] ordered a pre-sentence
          investigation report[,] which ultimately reflected
          [appellant’s] prior record score as “5.” [Appellant]
          was sentenced on May 4, 2017 [to an aggregate term
          of 15 to 30 months’ imprisonment, consecutive to a
          federal sentence he was serving.]

          [Appellant] declined to file a post-sentence motion or
          take direct appeal. On August 10, 2017, [appellant]
          filed a timely pro se petition pursuant to the Post[
          ]Conviction Relief Act [(“PCRA”), 42 Pa.C.S.A.
          §§ 9541-9546,] claiming that trial counsel was
          ineffective for advising him incorrectly about the
          sentence he faced should he proceed to trial. On
          August 25, 2017, [the trial court] granted
          [appellant’s] petition to proceed in forma pauperis
          and appointed John Hamme, Esquire to amend
          [appellant’s] petition. Attorney Hamme filed an
          amended petition on October 11, 2017.              On
          December 4, 2017, Attorney Hamme filed a petition
          to withdraw as counsel due to his employment
          separation from York County’s conflict counsel panel
          and the Honorable Michael E. Bortner appointed
          Christopher D. Moore, Esquire the same day to
          represent [appellant].

          ....


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            The PCRA hearing convened on April 3, 2018.
            Justin Talarowski,        Esquire     represented       the
            Commonwealth.            [Appellant], represented by
            Attorney     Moore,      attended     the    hearing    via
            teleconference.       [Trial counsel] and [appellant]
            testified for the defense and Jared Mellot, Esquire
            testified on behalf of the Commonwealth. During the
            hearing,     Attorney      Moore     further    developed
            [appellant’s] argument to claim that trial counsel’s
            ineffectiveness was borne out of the trial prosecutor’s
            indication, prior to trial, that [appellant’s] prior record
            score was “3” and that had trial counsel properly
            articulated to [appellant] that his prior record score
            was actually “5”[, appellant] would have accepted the
            Commonwealth’s offer to circumvent serving a
            lengthier sentence of imprisonment. The point of
            contention, however, is whether an offer was actually
            extended to [appellant] and if so, the nature of such
            offer and whether [appellant] detrimentally relied on
            any misinformation relative to the offer.

            After taking the matter under advisement, in the
            interest of justice, [the trial court] issued an Order on
            April 19, 2018, granting PCRA relief insofar as
            sua sponte reinstating [appellant’s] post-sentence
            and direct appeal rights nunc pro tunc and
            permitting [appellant] the opportunity to file a
            post-sentence motion pursuant to Pa.R.Crim.P.
            720(B)(1)(a).     [Appellant] filed a “Post Sentence
            Motion/Motion for Resentencing” on April 24, 2018,
            essentially redirecting [the trial court] back to
            [appellant]’s PCRA claim. The Commonwealth filed an
            immediate response on April 27, 2018, moving [the
            trial court] to reconsider its order entered April 19,
            2018. [The trial court] denied the Commonwealth’s
            motion on May 17, 2018.

Trial court opinion, 8/30/18 at 2-6 (extraneous capitalization and footnote

omitted).




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      Thereafter, on August 22, 2018, the trial court entered an order denying

appellant’s post-sentence motion. The trial court filed an opinion in support

of this order on August 30, 2018, concluding that the claim appellant alleged

in his post-sentence motion was premised on the ineffectiveness of his trial

counsel and was “better suited for review by the PCRA court.” (Id. at 6.) This

timely appeal followed.2

      Although appellant has failed to include a statement of questions

involved in his brief, in direct violation of Pennsylvania Rules of Appellate

Procedure 2111(a)(4) and 2116(a), we are able to discern the issue appellant

wishes this court to review from the “Argument” section of his brief. The crux

of appellant’s claim is that the trial court abused its discretion in denying his

post-sentence motion for resentencing because trial counsel was ineffective

for incorrectly advising him of his prior record score under the sentencing

guidelines. (Appellant’s brief at 10-17.) Appellant contends that had trial

counsel given him accurate information on his potential sentence, he would

have forgone trial and accepted the plea offer allegedly offered by the

Commonwealth. (Id. at 14-15.) Appellant avers that because “the record

indicates [he] relied on incorrect advice of [trial] counsel and was prejudiced

[he] should be granted a resentencing hearing for the judge to fashion as an

equitable remedy.” (Id. at 10.)




2 The record reflects that appellant and the trial court have complied with
Pa.R.A.P. 1925.


                                      -4-
J. A20015/19

      Upon    review,   we   agree    with    the   trial   court   that   appellant’s

ineffectiveness claim is premature.        Instantly, the PCRA court sua sponte

granted appellant PCRA relief by reinstating his direct appeal rights nunc pro

tunc after concluding that he was not properly advised of these rights at

sentencing, in an attempt “to afford [him] the opportunity to address

potentially waivable issues before the trial court first within the

parameters of a Post-Sentence Motion.” (PCRA court order, 4/19/18 at ¶ 1;

see also trial court opinion, 8/30/18 at 5 n.1 (emphasis added).) The claim

appellant raised in his post-sentence motion, however, is premised solely on

trial counsel’s alleged ineffectiveness.

      In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our supreme

court reaffirmed the general rule first set forth in Commonwealth v. Grant,

813 A.2d 726 (Pa. 2002), that “claims of ineffective assistance of counsel are

to be deferred to PCRA review; trial courts should not entertain claims of

ineffectiveness upon post-verdict motions; and such claims should not be

reviewed upon direct appeal.” Holmes, 79 A.3d at 576 (footnote omitted).

Our supreme court has recognized that a defendant may only raise

ineffectiveness claims in post-sentence motions and on direct appeal in very

limited circumstances, none of which apply here.3


3 In Commonwealth v. Delgros, 183 A.3d 352 (Pa. 2018), the court
summarized the following exceptions to the general deferral rule:

             The first exception . . . affords trial courts discretion
             to entertain ineffectiveness claims in extraordinary


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      Accordingly, we agree with the trial court that appellant’s ineffectiveness

claim should be raised on collateral review pursuant to the PCRA.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2019




            circumstances where a discrete claim of trial counsel
            ineffectiveness is apparent from the record and
            meritorious    to   the    extent     that   immediate
            consideration best serves the interests of justice. The
            second exception . . . gives trial courts discretion to
            address ineffectiveness claims on post-sentence
            motions and direct appeal if there is good cause shown
            and the defendant knowingly and expressly waives his
            entitlement to seek subsequent PCRA review of his
            conviction and sentence.

Id. at 360, citing Holmes, 79 A.3d at 563-564. The third exception requires
“trial courts to address claims challenging trial counsel’s performance where
the defendant is statutorily precluded from obtaining subsequent PCRA
review.” Delgros, 183 A.3d at 361.

       Here, appellant did not knowingly or expressly waive his entitlement to
seek subsequent PCRA review of his conviction, and at present, the record is
unclear as to the extent of the plea offer the Commonwealth allegedly made
to him; whether said plea offer was more favorable than the sentence actually
imposed; and whether appellant relied on trial counsel’s misinformation
relative to this offer, to his detriment. Additionally, appellant is not statutorily
precluded from obtaining subsequent review under the PCRA.


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