J-S31032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
                 v.                       :
                                          :
                                          :
 GLENN WILLIAM MUMAU                      :
                                          :
                      Appellant           :   No. 1622 WDA 2018

         Appeal from the PCRA Order Entered September 18, 2018
   In the Court of Common Pleas of Jefferson County Criminal Division at
                     No(s): CP-33-CR-0000014-2016


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                  FILED SEPTEMBER 13, 2019

      Glenn William Mumau appeals from the order denying as meritless his

petition filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

We affirm.

      In August 2016, Mumau entered a nolo contendere plea to one count

each of corrupt organizations, 18 Pa.C.S.A. § 911(b)(4), and operating a

methamphetamine laboratory, 35 P.S. § 780-113.4(a)(1), and four counts of

possession with intent to deliver a controlled substance (“PWID”), 35 P.S. §

780-113(a)(30). In September 2016, the trial court sentenced Mumau to

seven years and two months to 30 years in prison. Mumau filed a motion for

reconsideration of sentence, which the trial court denied. He did not file a

direct appeal.

      In September 2017, Mumau filed a motion to reconsider sentence nunc

pro tunc. The court initially did not treat this motion as a PCRA petition and
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denied it. Mumau appealed and we remanded with instructions that the court

treat it as a first PCRA petition.

       On     remand,    the   PCRA     court    appointed   counsel,   who   filed   a

Turner/Finley1 no merit letter and a petition to withdraw as counsel. The

trial court issued Pa.R.Crim.P. 907 notice of intent to dismiss the petition

without a hearing and granted counsel’s petition to withdraw. Mumau filed a

pro se response. In October 2018, the PCRA court dismissed the petition as

meritless, and Mumau filed this timely appeal.

       Mumau raises the following issues:

            1) Was [Mumau] not charged within a timely manner under
            Policy, Practices and Procedure as required by law, after the
            first alleged buy/sale on 10-27-2014, with Angie Salsgiver
            pursuant to Pa. R. Crim. P. 519-A and Pa. R. Crim. P. 587-
            A, therefore, denying [Mumau] due process rights under the
            14th Amendment?

            2) Was court appointed counsel and court appointed
            appellant [sic] counsel ineffective for failing to act in
            [Mumau’s] best interest, was ineffective for failing to file
            pre-trial motions, post-trial motions, appeals or proper brief
            (abandonment) and for failing to request concurrent
            sentences pursuant to the Pennsylvania Merge Rules?

            3) Was [Mumau] prejudiced because [Mumau’s] co-
            defendant Angie Salsgiver received no prison time and
            [Mumau] received (7) years (2) months to (30) years, and
            more time than any other member of this investigation, for
            (11) sales of meth of (4) grams or less over a period of more
            than a year before arrest (18 Pa. C.S. 313), this practice
            was illegal under the Unified Judicial Sentencing Code
            created by the legislature?

____________________________________________


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

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         4) Did the Jefferson County Courts abuse discretion and
         create a deliberate indifference, by acknowledging
         [Mumau’s] prior military service, that [Mumau] has
         numerous health related issues after service in the military,
         that [Mumau] has no prior criminal record and alleged risk
         of [Mumau’s] possible drug addiction to prescription
         medication (which no record of said addiction or addictive
         behavior exists), however, still sentenced [Mumau] to the
         top of the standard range?

Mumau’s Br. at 3-4 (some capitalization, emphasis, and citations omitted).

      “Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA court’s

decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4

(Pa.Super. 2014).

      To establish a counsel ineffectiveness claim, a petitioner must plead and

prove that: “(1) the underlying legal claim has arguable merit; (2) counsel

had no reasonable basis for his or her action or inaction; and (3) the petitioner

suffered prejudice because of counsel’s ineffectiveness.” Commonwealth v.

Paddy, 15 A.3d 431, 442 (Pa. 2011).

      A. Failure to File Pre-Trial Motions

      Mumau first claims that he was not charged in a timely manner, in

violation of the Due Process Clause of the Fourteenth Amendment. He argues

that although the Office of the Attorney General of Pennsylvania (“OAG”)

began investigating this matter in January 2013, the OAG made no arrests

and filed no criminal complaints until 2015, allegedly “in direct violation of the

policy, practices and procedures” of the Pennsylvania Rules of Criminal

Procedure. Mumau’s Br. at 5. He asserts that he was not part of the


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organization at issue from 2013 through 2015, and claims his trial counsel

was ineffective for failing to file pre-trial motions, including a motion to

suppress evidence, and that there was no evidence that would establish he

was a member of the corrupt organization.

      Mumau did not raise a claim of counsel ineffectiveness based on a failure

to file a motion due to a prolonged investigation in his pro se petition, but did

claim in response to the court’s Rule 907 notice that his PCRA counsel was

ineffective in regard to Mumau’s claim regarding a prolonged investigation.

We will therefore address whether Mumau’s trial counsel was ineffective

regarding a failure to file a motion to dismiss based on an untimely filing of

the criminal complaint, and whether PCRA counsel was ineffective for failing

to raise such a claim.

      Pennsylvania Rule of Criminal Procedure 587 provides, in relevant part:

         (A) Untimely Filing of Information

         (1) Upon motion and a showing that an information has not
         been filed within a reasonable time, the court may order
         dismissal of the prosecution, or in lieu thereof, make such
         other order as shall be appropriate in the interests of justice.

Pa.R.Crim.P. 587(A). The trial court has discretion when addressing a motion

to dismiss based on an untimely filing. Commonwealth v. Totaro, 106 A.3d

120, 123 (Pa.Super. 2014). Further, a defendant may succeed on a Due

Process claim based on an improper delay in arrest only where the delay

causes the defendant prejudice and the delay “was the product of intentional,

bad faith, or reckless conduct by the prosecution.” Commonwealth v. Jette,



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818 A.2d 533, 536 (Pa.Super. 2003) (quoting Commonwealth v. Scher, 803

A.2d 1204, 1221 (Pa. 2002)).

      Here, the Office of the Attorney General filed a criminal complaint in

December 2015 following a grand jury investigation against Mumau alleging

Mumau engaged in criminal conduct from January 2013 through November

2015. The dates included in the complaint as the dates of the sales of narcotics

range from October 2014 through April 2015. Criminal Complaint, filed Dec.

4, 2015.

      Mumau has failed to establish that there is anything about this timeline

that is prejudicial to him, such that he would not be able to properly prepare

a defense or that any delay was in bad faith. He therefore failed to establish

that any motion to dismiss on this basis would have merit. See Jette, 818

A.2d at 536; Totaro, 106 A.3d at 127 (affirming trial court order dismissing

PWID charge under Rule 587 where trial court found the Commonwealth

unreasonably    delayed    charging   PWID     and   the   court   “identified   and

substantiated resultant prejudice” to defendant). Because the underlying

claim is meritless, any ineffective assistance of counsel claim for failing to file

the motion to dismiss is meritless and any PCRA counsel ineffectiveness claim

for failure to raise trial counsel ineffectiveness is meritless.

      Mumau did not claim before the PCRA court that his counsel was

ineffective for failing to file a motion to suppress or for failing to challenge the

sufficiency of the evidence and he therefore waived the claims. Further,

Mumau pled nolo contendere and makes no contention that his plea was

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unknowing or involuntary because           of any failure      to   file a motion.

Commonwealth v. Pier, 182 A.3d 476, 478 (Pa.Super. 2018) (providing that

ineffective assistance in relation to a guilty plea “will serve as a basis for relief

only if the ineffectiveness caused the defendant to enter an involuntary or

unknowing plea” (Commonwealth v. Moser, 921 A.2d 526, 531 (Pa.Super.

2007)).

      B. Sentencing Claims

      Mumau next raises trial court error and ineffective assistance of counsel

claims relating to sentencing. He argues the convictions should have merged

for sentencing purposes. He also alleges the court abused its discretion

because his co-defendants received more lenient sentences, the court

sentenced him to the top of the standard range even though he had no prior

criminal record and had medical problems, and the court imposed consecutive

sentences.

      A claim that a trial court failed to merge convictions for sentencing

purposes challenges the legality of the sentence and is cognizable under the

PCRA. See Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009)

(citation omitted); 42 Pa.C.S.A. § 9543 (2)(vii).

      The trial court did not err in not merging Mumau’s convictions. The

Sentencing Code governs merger for sentencing purposes and provides:

          No crime shall merge for sentencing purposes unless the
          crimes arise from a single criminal act and all of the
          statutory elements of one offense are included in the
          statutory elements of the other offense. Where crimes


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         merge for sentencing purposes, the court may sentence the
         defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765. Therefore, a court cannot merge crimes for sentencing

purposes unless: “1) the crimes arise from a single criminal act; and 2) all of

the statutory elements of one of the offenses are included in the statutory

elements of the other.” Baldwin, 985 A.2d at 833.

      Mumau     pled   guilty     to   corrupt   organizations,   operating    a

methamphetamine laboratory, and four counts of PWID. The three crimes at

issue—corrupt organizations, operating a methamphetamine laboratory, and

PWID—are not crimes in which all statutory elements of an offense are

included in the statute elements of another offense. See 18 Pa.C.S.A. § 911

(corrupt organizations); 35 P.S. § 780-113(30) (PWID); 35 P.S. § 780-113.4

(operating a methamphetamine laboratory). The only convictions that have

the same elements were his convictions for the four counts of PWID. Those

convictions, however, were based on different criminal acts, that is, they were

based on the sale of controlled substances on separate dates. See

Commonwealth v. Williams, 958 A.2d 522, 527-28 (Pa.Super. 2008)

(finding two counts of PWID did not merge because “facts underlying each

crime are totally separate and constitute two different criminal acts”). Merger

was therefore not proper and Mumau is not entitled to relief on this claim.

      Mumau’s    remaining      sentencing   claims   are   challenges   to   the

discretionary aspects of his sentence. Such claims are not cognizable on PCRA.

Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa.Super. 2007).



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       Mumau’s claim that counsel was ineffective for failing to challenge on

appeal the discretionary aspects of sentence lacks merit.2

       Mumau’s counsel filed a motion to reconsider sentence, which the trial

court denied. Further, Mumau makes no claim that he requested that counsel

file an appeal, but that counsel failed to do so and therefore makes no claim

that he is entitled to restatement of his appellate rights nunc pro tunc.

Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa.Super. 2011)

(petitioner entitled to reinstatement of direct appeal rights where claim is

raised in timely PCRA petition and where petitioner provides he asked counsel

to file a notice of appeal and counsel failed to do so).

       The Sentencing Code provides that “the sentence imposed should call

for confinement that is consistent with the protection of the public, the gravity

of the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. §

9721(b). The trial court has discretion within legal limits when sentencing a

defendant, and absent an abuse of that discretion, we will not disturb its

sentence. Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011). An abuse

of discretion occurs where “the record discloses that the judgment exercised

was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-

will.” Id. (quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)).
____________________________________________


2Mumau’s claim that the trial court sentenced him to an excessive sentence
due to the court’s imposition of consecutive sentences and failure to consider
mitigating factors raises a substantial question. Commonwealth v.
Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015) (en banc).

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The sentencing judge does not have to give a “lengthy discourse” explaining

its reasons for imposing a sentence. Commonwealth v. Crump, 995 A.2d

1280, 1283 (Pa.Super. 2010). However, “the record as a whole must reflect

the sentencing court’s consideration of the facts of the crime and character of

the offender.” Id.

      In sentencing Mumau, the trial court considered the pre-sentence

investigation report, counsel’s argument, and Mumau’s statements to the

court. It considered that Mumau was a veteran and that he had no prior record

score. N.T., 9/7/16, at 14. It also heard from a police officer about the dangers

to the community from the operation of methamphetamine labs. Id. at 4-6.

The court considered all of the mitigating factors and imposed consecutive

sentences for an aggregate sentence of 86 months’ to 30 years’ imprisonment.

It reasoned, in part, that:

         [J]ust looking at the amount of methamphetamine, the
         separate deals, the fact that you were involved in the RICO
         case, I don’t think it should be aggravating, but it could be
         aggravating. There’s many thing I could point out, like the
         officer just pointed out about clean ups and all the other
         things, that could send it in the aggravated range. But I
         think when considering everything at each count, you
         should be given a consecutive sentence at the top of the
         standard rage with parole that is sufficient to manage you.

Id. at 14. This was not an abuse of discretion. Therefore any appeal of the

discretionary aspects of sentence would have been meritless.

      Further, the sentences imposed for the crimes committed by Mumau’s

co-defendants does not alter this conclusion, particularly as we do not know



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anything regarding the crimes the co-defendants were convicted of, or what

each defendant’s mitigating and aggravating circumstances may have been.

      Because the underlying discretionary aspects of sentencing claims lack

merit, Mumau’s counsel ineffectiveness claim fails.

      C. Challenge to Guilty Plea

      To the extent Mumau argues his guilty plea was unknowing and

involuntary because his counsel told him that the sentences would be

concurrent, see Mumau’s Br. at 10, the claim lacks merit.

      An allegation that counsel provided ineffective assistance in relation to

a guilty plea “will serve as a basis for relief only if the ineffectiveness caused

the defendant to enter an involuntary or unknowing plea.” Pier, 182 A.3d at

478 (quoting Moser, 921 A.2d at 531). Whether counsel was ineffective turns

on “whether counsel's advice was within the range of competence demanded

of attorneys in criminal cases.” Id. at 479 (quoting Moser, 921 A.2d at 531).

Further, “to establish prejudice, the defendant must show that there is a

reasonable probability that, but for counsel's errors, he would not have

pleaded guilty and would have insisted on going to trial.” Id. (quoting

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013)).

      A defendant is bound by the statements he or she made under oath

during a plea colloquy. Commonwealth v. Muhammad, 794 A.2d 378, 384

(Pa.Super. 2002). Thus, where a defendant's claim that a guilty plea was

unknowing or involuntary is belied by the record, the claim must fail. Id.




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     At the guilty plea hearing, the following exchange in which the court

explains that Mumau could be sentenced to consecutive, maximum sentences

occurred:

        THE COURT: Do you understand that since this plea is for
        an open plea, you could be sentenced to each case number
        to it’s maximum, one consecutive to the other; do you
        understand that?

        THE DEFENDANT: Yes.

        THE COURT: Which would be, if they were all running
        absolutely consecutive, 70 years and $450,000; do you
        understand that?

        THE DEFENDANT: Yes, I do, Your Honor.

N.T., 8/31/16, at 5. Mumau is bound to the statements made under oath at

the guilty plea hearing, and any claim that he pled guilty because counsel

informed him he would receive concurrent sentences, and he did not know the

sentences could be consecutive, lacks merit.

     Order affirmed.

Judge Stabile joins the memorandum.

Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/13/2019


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