J.   S33042/19

NON-PRECEDENTIAL DECISION                        - SEE SUPERIOR COURT I.O.P.        65.37
COMMONWEALTH OF PENNSYLVANIA                         :    IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                           v.

HENRY L. WILLIAMS,                                             No. 1945 MDA 2018

                                Appellant


              Appeal from the PCRA Order Entered October 25, 2018,
                in the Court of Common Pleas of Lancaster County
                 Criminal Division at No. CP-36-CR-0001747-2010


BEFORE:      LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                            FILED AUGUST 12, 2019

         Henry   L.   Williams appeals from the October 25, 2018 order denying in

part, and dismissing in part, his petition filed pursuant to the Post Conviction

Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546.                  After careful review, we

affirm.

         The relevant facts and extensive procedural history of this case were set

forth by the PCRA court            in its   October 25, 2018 opinion and need not be

reiterated here.          (See PCRA court opinion, 10/25/18 at 2-3.)            In sum, on

April 19, 2011,       a   jury found appellant guilty of corrupt organizations, criminal
conspiracy, criminal use of            a    communication facility, and four counts of

possession with intent to deliver           a   controlled substance.' On August 4, 2011,


'    18 Pa.C.S.A. §§      911(b)(3)-(4), 903, 7512(a), and 35      P.S. §   780-113(a)(30),
respectively.
J.   S33042/19

the trial court sentenced appellant to an aggregate term of 11 to 22 years'

imprisonment, which included several mandatory minimum sentences based

on the weight of drugs involved.        On May 8, 2013, this court affirmed

appellant's judgment of sentence, and our supreme court denied appellant's

petition for allowance of appeal on November 19, 2013. See Commonwealth

v.   Williams,   81 A.3d 993 (Pa.Super. 2013) (unpublished memorandum),

appeal denied, 80 A.3d 777      (Pa. 2013).

       While appellant's direct appeal was pending, the Supreme Court of the

United States decided     Alleyne v. United States, 570    U.S. 99 (2013), on

June 17, 2013.2 Thereafter, on December 4, 2014, appellant filed      a   timely

pro se   PCRA    petition. Counsel was appointed and filed an amended petition

on appellant's behalf on August 14, 2015. In light of Alleyne and its progeny,

the PCRA court granted appellant's PCRA petition, vacated his August 4, 2011

judgment of sentence, and ordered that appellant be resentenced.             On



2 In Alleyne, the Supreme Court held, "[a]ny fact that, by law, increases the
penalty for a crime is an 'element' that must be submitted to the jury and
found beyond a reasonable doubt." Alleyne, 570 U.S. at 102. In applying
Alleyne, this court has held that, generally, Pennsylvania's mandatory
minimum sentencing statutes are unconstitutional because the mandatory
sentencing statutes "permit[] the trial court, as opposed to the jury, to
increase a defendant's minimum sentence based upon a preponderance of the
evidence" standard.     Commonwealth v. Newman, 99 A.3d 86, 98
(Pa.Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015). The
Newman court further held that if a defendant's case was pending on direct
appeal when Alleyne was decided, that defendant was entitled to retroactive
application of Alleyne. Id. at 90. Thereafter, in Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015), our supreme court reiterated that
Pennsylvania's drug trafficking mandatory minimum sentences were
unconstitutional under Alleyne. Id. at 262.

                                      _2
J.   S33042/19

October 16, 2015, appellant was resentenced to an aggregate term of 11 to

22 years' imprisonment.      On October 26, 2015, appellant filed a         timely

post -sentence motion challenging the discretionary aspects of his sentence,

which was denied on October 28, 2015. On November 23, 2016,            a   panel of

this court affirmed appellant's judgment of sentence, and appellant did not

seek allowance of appeal with our supreme court. See Commonwealth v.

Williams,   151 A.3d 621 (Pa.Super. 2016).

       Appellant filed the instant pro se PCRA petition on September 5, 2017,

and counsel was appointed to represent him.          Counsel's appointment was

rescinded, and Lea T. Bickerton,        Esq.    ("PCRA counsel"),    entered    her

appearance on behalf of appellant.     PCRA counsel filed an amended       petition

on appellant's behalf on April 30, 2018.       On June 15, 2018, the PCRA court

provided appellant with notice of its intention to dismiss his petition without   a


hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant filed     a   response to the

PCRA    court's Rule 907 notice on July 16, 2018. Thereafter, on October 25,

2018, the PCRA court issued     a   comprehensive opinion and order denying

appellant's PCRA petition, in part, and dismissing the petition, in part,

concluding the petition was timely filed with respect to the resentencing

issues. This timely appeal followed on November 26, 2018.3



3 The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b).                 On
December 3, 2018, the PCRA court filed a one -page Rule 1925(a) opinion
indicating that it was relying on the reasoning set forth in its October 25, 2018
opinion.

                                      -3
J.   S33042/19

        Appellant raises the following issues for our review:

              1.        Did   the PCRA [c]ourt err by denying
                        [appellant's] claims regarding   ineffective
                        assistance of resentencing and 2016 appeal
                        counsel[4] without a hearing?

              2.        Did the PCRA court err by dismissing the rest of
                        [appellant's] claims as untimely filed?

Appellant's brief at 7.

        Proper appellate review of     a PCRA   court's dismissal of   a PCRA        petition

is   limited to the examination of "whether the PCRA court's determination is

supported by the record and free of legal error." Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). "The PCRA court's

findings will not be disturbed unless there     is no    support for the findings in the

certified record." Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). "This Court grants great deference to the findings of the

PCRA    court, and we will not disturb those findings merely because the record

could support      a   contrary holding." Commonwealth v. Hickman, 799 A.2d

136, 140 (Pa.Super. 2002) (citation omitted). Additionally,           "[i]t   is   within the

PCRA    court's discretion to decline to hold   a   hearing if the petitioner's claim is

patently frivolous and has no support either        in   the record or other evidence."

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (citations
omitted).


4 Appellant was represented during his 2015 resentencing and subsequent
appeal by Joseph J. Kenneff, Esq. (hereinafter, "Attorney Kenneff" or
"resentencing counsel").

                                          -4
J.   S33042/19

       "The timeliness of       a   PCRA    petition   is   a   jurisdictional requisite."

Commonwealth v. Ba!lance, 203 A.3d 1027, 1031 (Pa.Super. 2019)
(citation omitted). "Pennsylvania law makes clear no court has jurisdiction to

hear an untimely PCRA petition."      Id.    All PCRA petitions, including second and

subsequent petitions, must be filed within one year of when                 a   defendant's

judgment of sentence becomes final. See 42 Pa.C.S.A.                 §   9545(b)(1). "[A]

judgment becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review." 42 Pa.C.S.A.     §   9545(b)(3).

       An otherwise untimely -filed PCRA petition will be excused if a petitioner

satisfies one of the following three statutory exceptions to the PCRA time -bar

enumerated in Section 9545(b)(1):

             (i)     the failure to raise the claim previously was the
                     result of interference by government officials
                     with the presentation of the claim in violation of
                     the Constitution or laws of this Commonwealth
                     or the Constitution or laws of the United States;

             (ii)    the facts upon which the claim is predicated
                     were unknown to the petitioner and could not
                     have been ascertained by the exercise of due
                     diligence; or

             (iii)   the right asserted is a constitutional right that
                     was recognized by the Supreme Court of the
                     United States or the Supreme Court of
                     Pennsylvania after the time period provided in
                     this section and has been held by that court to
                     apply retroactively.



                                            -5
J.   S33042/19

42 Pa.C.S.A.     §   9545(b)(1).

        In the instant matter, appellant contends in his amended PCRA petition

that an evidentiary hearing             is   warranted because:     (1) trial counsel was

ineffective for "failing to challenge the use of testimony alone to establish the

existence of controlled substances";                 (2) trial counsel was ineffective for

"failing to challenge the improper and otherwise incorrect sentencing

guidelines information"; (3) "First Direct Appeal counsel" and "Second Direct

Appeal counsel" were ineffective for "failing to challenge the sufficiency and

weight of the evidence"; (4) "First Direct Appeal counsel" was ineffective for

"failing to raise these first four issues in the first PCRA"; (5) resentencing

counsel, Attorney Kenneff, was ineffective for "failing to properly advocate at

the [re]sentencing hearing"; (6) prior counsel, including Attorney Kenneff,

were ineffective for failing to object to the imposition of the $25,000.00 fine;

and     (7)   prior counsel        were      ineffective for "failing   to    challenge the

constitutionality of the driver['s] license suspensions[.]"                  (Amended PCRA

Petition, 4/30/18 at     1111   1-7.)

        Following our careful review of the record, including the briefs of the

parties, the applicable law, and the well -reasoned opinion of the Honorable

David    L.   Ashworth, we discern no error on the part of the PCRA court in

denying in part, and dismissing in part, appellant's PCRA petition without an

evidentiary hearing. The PCRA court opinion comprehensively addresses and

disposes of appellant's claims. Accordingly, we adopt this opinion as our own



                                                -6
J.   S33042/19

and affirm the PCRA court's October 25, 2018 order on the basis of the reasons

stated therein. (See PCRA court opinion, 10/25/18 at 10-13 (concluding that

appellant's October 16, 2015 resentencing did not change the date his

judgment of sentence became final); id. at 14-15 (concluding that any issues

raised with respect to his trial, first sentencing, and first direct appeal were

untimely raised and the court had no jurisdiction to review them, but that

appellant's allegations of ineffective assistance of resentencing counsel,

Attorney Kenneff, were timely raised and cognizable); and id. at 16-20

(concluding that appellant failed to establish by     a   preponderance of the

evidence that Attorney Kenneff failed to properly advocate on his behalf at the

resentencing hearing or that he suffered prejudice because of any alleged

inaction of counsel).)5

        Order affirmed.




5 We note that Attorney Kenneff had no reasonable basis to object to the
imposition of a $25,000 fine, as the record clearly established that the
resentencing court had the benefit of a pre -sentence investigation report and
heard testimony that appellant will be trained and employed as an
HVAC technician upon his release. (See notes of testimony, 10/16/15 at
6-10.) See Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super.
2014) (stating that, to prevail on an ineffectiveness claim, a petitioner must
establish, inter alia, that "the underlying claim has arguable merit[.]"
(citation omitted)), appeal denied, 104 A.3d 523 (Pa. 2014). Additionally,
to the extent appellant argues in his brief that the PCRA court erred in
dismissing his petition because "[t]he first PCRA court didn't comply with
Pa.R.Crim.P. 905 and did not provide notice of the alleged defects in the
pro se petition" (see appellant's brief at 23-29), we find this claim waived.
See Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (stating,
"a claim not raised in a PCRA petition cannot be raised for the first time on
appeal.").

                                     -7
J.   S33042/19




Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 08/12/2019




                     _8
                                                        f 1!!0 4il 'it201Y 11 !:1ti QU Pld Supenor ColXI M tddl,e fJ1&1r1tt
                                                                                                               1945 MDA 2016

     IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                              CRIMINAL


COMMONWEALTH OF PENNSYLVANIA

                     v.                                       No. 1747-2010                     .,.
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                                          OPINION
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                                                                                                            "'           'J>

BY:      ASHWORTH, J., OCTOBER 25, 2018


         Before tho Court is Henry L. Williams' counseled petition filed pursuant lo the

Post Conviction Collateral Relief Act (PCRA). 42 Pa. C.SA. §§ 9541-9546. For the

reasons set forth below, this petition will be denie<I in part and dismissed in part. wiU1out

a hearing.'


I.       Background


         The criminal charges filed against Williams and his seven co-defendants In this

consolidated case - David Huggins. Jr .• Justin E. Wiley, Leroy K. Warrick. David L.

Lambert, Amin L. Owens, Salim D. Brokenborough, and Felicia Cooper - were

inst4uted by the filing of criminal complaints based on Presentment No. 19, whtell was

returned by the Twenty,Ninth Statewide Investigating Grand Jury. By Order dated

October 8, 2009, tho Honorable Barry Feudalo, Acting Supervising Judge of tho



       'Under Rule 907 or the Pennsylvania Rules ol Criminal P1ocedu1e. a PCRA coutt may
dispose or post conviction cotlaterat relier petitions .nthou1 a hearing If It Is sarisfied after
reviewing the material, ,ubmrtted that no genuine Ii-Sues of matenal fact i)Ct$1 and that the
petitioner Is not entitled to post conviction relief. Pa. R.Crfrn.P. 907.
Twenty-Ninth Statewide Investigating Grand Jury, accepted the Grand Jury's

Presentment and directed that venue for prosecution of the defendants' crimes be held

in Lancaster County, Pennsylvania.

       The Grand Jury provided the following summary of the investigation that resulted

in the filing of the criminal charges against these co-conspirators:

          During the summer of 2008, members of the Pennsylvania Office
      of Attorney General Bureau of Narcotics Investigation and Drug Control
      (BNIDC), Region II, Philadelphia Office, investigated the distribution of
      marijuana and cocaine in and around Philadelphia, Montgomery,
      Delaware and Lancaster counties in Pennsylvania. The investigation
      began with controlled purchases of marijuana from an individual supplied
      by David Lambert.
          As the investigation developed, the agents concentrated on the
      controlled substance trafficking of David Lambert, a.k.a Lamont Brooks,
      a.k.a D-Rock. The evidence developed to show that Lambert had an
      organization that mainly dealt with trafficking cocaine and marijuana to
      customers in several counties from Philadelphia to Lancaster.
          In November of 2008, this Grand Jury began to hear testimony from
      BNIDC about this illegal drug trafficking organization. Agents William
      Ralston and David Carolina, along with two lay witnesses involved in the
      organization's business testified about the operations of the illegal drug
      distribution of David Lambert.
          In September 2008, pursuant to the applications made by Thomas
      W. Corbett, Jr., Attorney General for the Commonwealth of Pennsylvania,
      the Superior Court of Pennsylvania issued orders authorizing the inter-
      ception of wire and electronic communications on two telephones used
      by David Lambert to conduct this illegal business. Non-consensual
      interceptions began on September 11, 2008.
          Based upon interceptions and surveillance of David Lambert. agents
      corroborated that Lambert was selling marijuana and cocaine that he
      received from various sources. Some of the identified sources of cocaine
      were Henry Williams, David Huggins, Amin Owens, and Salim
      Brokenborough. Broken.borough also supplied marijuana to Lambert.
      Justin Wiley, a resident of Lancaster, PA, worked with Lambert in obtain-
      ing and distributing cocaine throughout the region. Felicia Cooper and
      Leroy Warrick were employed by Lambert to assist him in carrying out
      his drug business. The investigation showed that, from September
      through October 2008, these individuals enabled Lambert to supply
      various other individuals with quantities of cocaine ranging from multi-
      ounce to multi-grams and pound quantities of marijuana.

                                             2
          Evidence from the non-consensual interceptions and the accompany-
       ing surveillance provided probable cause for BNIDC agents to execute
       multiple search warrants in Lancaster and Philadelphia counties.

Presentment No. 19 at 1-2.

       As a result of this Grand Jury Presentment, criminal complaints were filed

against all of the co-defendants on October 22, 2009. The charges common to all

defendants include corrupt organizations, criminal conspiracy, criminal use of

communication facility, and violations of the Controlled Substance, Drug, Device and

Cosmetic Act.2 Co-defendant Lambert was additionally charged with person not to

possess or sell firearms.3 Pursuant to Pa. R.Crim.P. 582, the criminal cases were

consolidated for trial.

       The case proceeded to a jury trial on April 4, 2011, against six of the original

eight co-conspirators. Justin Wiley entered a guilty plea just prior to trial. Felicia

Cooper, who negotiated a guilty plea conditioned on her cooperation as a witness for

the Commonwealth, testified at trial against her co-conspirators. In addition to her

testimony, the Commonwealth presented evidence from a search of Wiley's house.

The search, conducted pursuant to a search warrant, turned up crack and powder

cocaine, cash, ammunition, and drug-distribution paraphernalia. The Commonwealth

also introduced recordings of drug-related conversations from lawful wiretaps on two

cell phones belonging to David Lambert. Some of the conversations included Lambert




       218 Pa. C.S.A. § 911(b)(3)(4), 18 Pa. C.S.A. § 903, 18 Pa. C.S.A. § 7512(a), and 35
P.S. § 780-113(a)(30), respectively.

       3
           18 Pa. C.S.A. § 6105(a).

                                              3
talking with Williams. Other members of the conspiracy were caught on tape discussing

narcotics transactions involving Williams.

       On April 19, 2011, a verdict was entered against Williams and his co-defendants.

Williams was found guilty of corrupt organizations, criminal conspiracy, four counts of

delivery or possession with intent to deliver a controlled substance, and criminal use of

communication facility. On August 4, 2011, Williams received an aggregate sentence

of 11 to 22 years incarceration,4 which included several mandatory minimum sentences

based on the weight of drugs involved.5

       A timely notice of appeal to the Superior Court of Pennsylvania was filed on

August 9, 2011. In that appeal, Williams raised just one issue: whether the Court erred

by allowing F.B.I. Special Agent David Carolina to give opinion testimony beyond the

scope of his asserted expertise. 0 n May 8, 2013, a th ree-j udg e pane I of the Su pe rio r

Court affirmed the judgment of sentence in an unpublished memorandum opinion.6

See Commonwealth v. Williams, 1399 MDA 2011, 81 A.3d 993 (Pa. Super. 2013)



       4Williams was sentenced as follows: Count 1, corrupt organizations, 2 to 4 years'
incarceration; Count 2, conspiracy, 5 to 10 years' incarceration; Count 3. PWID, 4 to 8 years'
incarceration; Count 4, PWID, 5 to 10 years' incarceration; Count 5, PWID. 5 to 10 years'
incarceration; Count 6, PWID, 5 to 10 years' incarceration: and Count 7, criminal use of
communication facility, 1 to 2 years' incarceration. Counts 2, 5 and 7 were made consecutive to
one another, resulting in an aggregate sentence of 11 to 22 years' incarceration.

       5The Commonwealth had filed a notice of mandatory sentencing, pursuant to 18 Pa.
C.S.A. § 7508(b) and 18 Pa. C.S.A. § 6317(b), on May 20, 2010

       6
          The Court affirmed based on the published decision in the companion case of
Commonwealth v. Huggins, 68 A.3d 962 (Pa. Super. 2013), which held that: (1) as a matter
of first impression, the rules of evidence do not preclude a single witness from offering opinions
in his capacity as both a lay and expert witness on matters that may embrace ultimate issues to
be decided by the fact-finder; and (2) allowing a drug enforcement agent to testify as both an
expert and a layperson was not improper.

                                                4
(Table). Williams filed an application requesting reconsideration or re-argument en

bane, which was denied on July 11, 2013. Williams' petition for allowance of appeal

was denied by the Supreme Court of Pennsylvania on November 19, 2013. See

Commonwealth v. Williams, 622 Pa. 760, BO A.3d 777 (Pa. 2013) (Table).

       On December 4, 2014,7 Williams filed a timely prose petition for post conviction

collateral relief. In his filing, Williams claimed his attorney was ineffective for failing to

challenge the sufficiency of the evidence to support his convictions for conspiracy and

criminal use of a communication facility. See 2014 PCRA Memorandum of Law at 6-

15. Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal Procedure, counsel

was appointed on December 10, 2014, to represent Williams on his collateral claims

and was granted leave to file an amended petition, if appropriate, by February 13, 2015.

       While Williams' direct appeal had been pending, the United States Supreme

Court announced its decision in Alleyne v. United States, 570 U.S. 99 (2013), which

held "that any fact that increases the mandatory minimum is an 'element' that must be

submitted to the jury'' and found beyond a reasonable doubt. Id. at 102, 116. The

Pennsylvania Superior Court in Commonwealth v. Watley, 81 A.3d 108, 117 (Pa.

Super. 2013), subsequently ruled that the Alleyne decision rendered those

Pennsylvania mandatory minimum sentencing statutes that did not pertain to prior

convictions unconstitutional insofar as they permitted a judge to automatically increase



       7Williams' pleading was mailed on December 4, 2014, and docketed in the Clerk of
Courts on December 5, 2014. The petition was deemed filed on December 4, 2014, pursuant to
the "prisoner mailbox rule." See Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super.
2011) ("Under the prisoner mailbox rule, we deem a prose document filed on the date it is
placed in the hands of prison authorities for mailing.").

                                               5
a defendant's sentence on a preponderance of the evidence standard. In

Commonwealth v. Newman, 99 A.3d 86, 101-02 (Pa. Super. 2014) (en bane), the

Superior Court held that the unconstitutional provisions of the mandatory minimum

sentencing statutes were not severable and that the statutes were therefore

unconstitutional as a whole. Additionally, the Superior Court found that Alleyne applies

retroactively to cases pending on direct appeal. Id. at 90.

       Upon request by Williams, proceedings in this case were stayed pending a

decision by the Supreme Court of Pennsylvania in Commonwealth v. Hopkins, 632

Pa. 36, 117 A. 3d 24 7 (2015), as to whether the unconstitutional provisions of the

mandatory minimum sentencing statutes were severable. On June 15, 2015, the

Supreme Court reaffirmed the Superior Court's severability analysis, rendering

Pennsylvania's drug trafficking mandatory minimum sentences unconstitutional. Id. at

61, 117 A.3d at 262.

       Following the Pennsylvania Supreme Court's decision on June 15, 2015, an

amended petition was filed by PCRA counsel on August 14, 2015. In his amended

petition, Williams raised only one claim: whether the sentence imposed upon him was

illegal in light of Alleyne. Given that (1) Williams was sentenced to drug trafficking

mandatory minimum sentences, (2) such sentences had been held unconstitutional in

light of Alleyne, (3) Williams' direct appeal was still pending at the time the decision in

Alleyne was announced on June 17, 2013, and (4) Alleyne applies retroactively to

Williams, the Commonwealth conceded that re-sentencing was appropriate in this case.

See Commonwealth's Response to Amended Motion for PCRA Relief at 2.



                                             6
       Accordingly, on September 16, 2015, an Order was entered granting Williams'

amended PCRA petition and vacating his judgment of sentence of August 4, 2011. A

re-sentencing hearing was scheduled for October 16, 2015. At that time, Williams was

sentenced as follows: Count 1, corrupt organizations, 2 to 4 years' incarceration; Count

2, conspiracy, 5 to 10 years' incarceration; Count 3, PWID, 4 to 8 years' incarceration;

Count 4, PWI D, 2. 75 to 5. 5 years' incarceration; Count 5, PWI D, 5 to 10 years'

incarceration; Count 6, PWID, 2.75 to 5.5 years' incarceration; and Count 7, criminal

use of communication facility, 1 to 2 years' incarceration. As in 2011, Counts 2, 5 and 7

were made consecutive to one another, resulting in an aggregate sentence of 11 to 22

years' incarceration.8

       Williams filed a counseled post-sentence motion on October 26, 2015,9 solely

challenging the consecutive nature of his sentence. By Order dated October 28, 2015,

I denied the motion. A timely notice of appeal to the Superior Court of Pennsylvania

was filed from that decision." See 2078 MDA 2015. In that appeal, Williams



       8Williams  was ineligible for a Recidivism Risk Reduction Incentive (RRRI) sentence due
to a prior robbery conviction.
       9
         Williams filed a prose "Motion for Post-Sentence Relief' on October 21, 2015. This
pleading was not accepted by the Court as Williams was represented by counsel, and a
criminal defendant has no constitutional right to hybrid representation on appeal. Such hybrid
representation has been expressly precluded by our Supreme Court. See Commonwealth v.
Jette, 611 Pa. 166, 23A.3d 1032, 1038-40 (2011); Commonwealth v. Pursell, 555 Pa. 233,
724 A.2d 293, 302 (1999); Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1139 (1993)
See also Pa.R.Crim.P. 576(A)(4).

       10
          Although represented by counsel, Williams filed a prose notice of appeal on
November 19, 2015. Based upon Superior Court Internal Operating Procedure 65.24 which
addresses hybrid representation in the context of a notice of appeal, the Court accepted the pro
se filing and found the appeal to be timely. Commonwealth v. Williams, 151 A.3d 621, 623-24
(Pa. Super. 2016).

                                               7
challenged the sufficiency of the evidence as to the criminal conspiracy and possession

with intent to deliver counts, and he challenged the discretionary aspects of his

sentence.

       On November 23, 2016, the Superior Court affirmed the judgment of sentence.

Specifically, as to the first appellate issue, the Court held that Williams waived his

challenge to the sufficiency of the evidence underlying his 2011 convictions because he

had already litigated a direct appeal challenging his convictions and judgment of

sentence.

       In that appeal, [Williams] raised one issue challenging the trial
       court's ruling that allowed an FBI agent to testify in his capacity as
       both an expert and a lay witness. Pa. R.A.P. 1925(b) Statement,
       8/24/11. This Court affirmed [Williams'] judgment of sentence in
       a Judgment Order filed on May 8, 2013. Because [Williams] had
       the benefit of a direct appeal, he is barred from raising any issues
       other than a challenge to the sentence imposed on remand.
       [Commonwealth v.] Anderson, 801 A.2d 1264,] 1266 [(Pa. Super.
       2002)]. Accordingly, [Williams'] first issue wherein he challenges
       the sufficiency of the evidence is waived for [Williams'] failure to
       raise it in his first direct appeal.

Williams, 151 A.3d at 625.

       Similarly, the appellate court held that Williams had waived his challenge to the

discretionary aspects of his sentence.

      In his second issue, [Williams] alleges that the trial court abused its
      discretion in applying an elevated offense gravity score ('OGS') that
      was based on the weight of the controlled substances. A claim that
      the sentencing court used an incorrect OGS is a challenge to the
      discretionary aspects of one's sentence ....
      [W]e are constrained to agree with the positions taken by both the
      trial court and the Commonwealth that [Williams] failed to preserve
      this challenge to the OGS at the time of sentencing or in a post-
      sentence motion. A review of the record reveals that while [Williams]
      did file a timely post-sentence motion, he never mentioned the OGS.
      [Williams] only argued that his aggregate sentence was excessive

                                             8
       due to the individual sentences being ordered to run consecutively
       as opposed to concurrently. Because the OGS was not raised in
       any manner, we conclude [Williams] has waived this challenge to
       the discretionary aspects of his sentence.

Williams, 151 A.3d at 625-26 (citations omitted). Williams did not seek allowance of

appeal to the Supreme Court of Pennsylvania.

       On September 5, 2017, Williams filed a pro se petition for post conviction

collateral relief. In his filing, Williams claimed: (1) his trial attorney was ineffective for

failing to challenge the sufficiency of the evidence to support his conviction for criminal

use of a communication facility; and (2) his appellate counsel was ineffective for failing

to raise the trial court error "in failing to re-sentence [Williams] without imposing the

mandatory minimum jail sentence and failing to find§ 7508 unconstitutional in its

entirety." See 2018 PCRA Memorandum of Law at 1-2. Pursuant to Pa. R.Crim P.

904(A), Dennis C. Dougherty, Esquire, was appointed on September 14, 2017, to

represent Williams on his collateral claims and was granted leave to file an amended

petition, if appropriate, by November 17, 2017. Attorney Dougherty asked for an

additional 60 days to complete his review of the case and was given until January 17.

2018, to file an amended petition.

       Thereafter, private counsel Lea Terlonge Bickerton, Esquire, entered her

appeara nee on behalf of Williams, 11 and Attorney Dougherty's appointment was

rescinded. Attorney Bickerton was granted leave until April 30, 2018, to file an

amended petition. The amended petition presently before the Court was filed on April



       "Attorney Bickerton represented Williams for some part of his 2016 appeal to the
Superior Court. See Williams, 151 A.3d at 622.

                                                9
30, 2018, and raises the following issues: (1) whether trial counsel was ineffective for

failing to challenge the use of testimony alone to establish the existence of controlled

substances; (2) whether trial counsel was ineffective for failing to challenge the

improper and otherwise "incorrect sentencing guidelines information"; (3) whether "First

Direct Appeal counsel" and "Second Direct Appeal counsel" were ineffective for failing

to challenge the sufficiency and weight of the evidence; (4) whether "First Direct Appeal

counsel" was ineffective for failing to raise these first four issues in the first PCRA; (5)

whether "Second Direct Appeal counsel" was ineffective for "failing to properly advocate

at the [second] sentencing hearing"; (6) whether "prior counsel" were ineffective for

failing to challenge the fine as excessive; and (7) whether "prior counsel" were

ineffective for failing to challenge the constitutionality of the driver license suspensions

Williams will face. See 2018 Amended PCRA Petition at        ffll 1-7.
       On May 29, 2018, the Commonwealth filed a timely response to the amended

PCRA petition raising a lack of jurisdiction due to the untimeliness of Williams' serial

petition and refuting the merits of Williams' ineffective assistance of counsel claims.

By Order dated June 15, 2018, Williams was given Notice pursuant to Pa. RCrim.P.

907 of this Court's intention to dismiss his serial PCRA petition without a hearing.

Williams filed an answer to the notice of dismissal on July 16, 2018.


II.    Discussion


       Before I may address the merits of Williams' argument, I must first consider the

timeliness of Williams' serial PCRA petition because it implicates the jurisdiction of this



                                              10
Court. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014). Williams'

petition is governed by section 9545(b)(1) of the PCRA, which provides that all

petitions, including a second or subsequent petition, normally must be filed within one

year from the date the petitioner's judgment of sentence became final. 42 Pa. C.S.A. §

9545(b)(1).12 This time restriction is "jurisdictional in nature." Commonwealth v.

Albrecht, 606 Pa. 64, 67, 994 A.2d 1091, 1093 (2010) (citation omitted). Pennsylvania

law makes clear that when "a PCRA petition is untimely, neither [the Superior] Court nor

the trial court has jurisdiction over the petition." Commonwealth v. Seskey, 86 A.3d

237, 241 (Pa. Super. 2014) (citation omitted). "[Jurisdictional time] limitations are

mandatory and interpreted literally; thus, a court has no authority to extend filing periods

except as the statute permits." Commonwealth v. Jae kson, 30 A 3d 51 6, 519 (Pa.

Super. 2011) (quoting Commonwealth v. Fahy, 558 Pa. Super. 313, 329, 737 A.2d

214, 222 (1999)). "Without jurisdiction, [the courts] simply do not have the legal

authority to address the substantive claims." Seskey, supra at 241.

       For purposes of the PCRA, a judgment of sentence becomes final at the

conclusion of direct review, including discretionary review in the Supreme Court of

Pennsylvania and the Supreme Court of the United States, or at the expiration of the

time for seeking such review. 42 Pa. C.S.A. § 9545(b)(3). See also Commonwealth v.

Jones, 54 A.3d 14, 17 (Pa. Super. 2012). A petitioner who seeks review in the U.S.



       12Section   9545(b)(1) provides, in pertinent part:
       (b) Time for filing petition.-
       ( 1) Any petition under this subchapter, including a second or subsequent petition,
       shall be filed within one year of the date the judgment becomes final. ...
42 Pa. C.S.A. § 9545(b)(1) (emphasis added}.

                                                  11
Supreme Court has 90 days to do so after the Pennsylvania Supreme Court enters an

order denying relief. Commonwealth v. Monaco, 996 A.2d 1076, 1081 n.2 (Pa. Super.

2010); U.S. Sup.Ct.R. 13.

       As discussed above, the Supreme Court of Pennsylvania denied Williams'

petition for allowance of appeal on November 19, 2013. See Williams, 622 Pa. 760,

80 A.3d 777. Pursuant to section 9545(b)(3) of the PCRA, Williams' judgment of

sentence became final for PCRA purposes 90 days later- on or about February 16,

2014 -when the time expired for Williams to file a petition for certiorari with the

Supreme Court of the United States. See 42 Pa. C.S.A § 9545(b)(3); U.S. Sup.Ct.R.

13. Accordingly, Williams had one year from February 16, 2014, in which to file a timely

PCRA petition.

       Williams' prose petition was filed on September 5, 2017, over three and one-half

years after his judgment of sentence became final. Thus, this petition is facially

untimely unless Williams pleads and proves the applicability of one of the three
                                              13
statutory exceptions to section 9545(b )( 1 ). Commonwealth v. Lawson, 90 A 3d 1 , 5

(Pa. Super. 2014).

       Section 9545(b )( 1) perm its consideration of the merits of a facially untimely

PCRA petition where:

       (l) the failure to raise the claim previously was the result of interference
       by government officials with the presentation of the claim in violation of
       the Constitution or laws of this Commonwealth or the Constitution or
       laws of the United States;



       13
         As our Supreme Court has repeatedly stated, the petitioner maintains the burden of
pleading and proving that one of the exceptions to the time requirement applies.
Commonwealth v. Abu-Jamal, 596 Pa. 219, 227, 941 A.2d 1263, 1268 (2008).

                                              12
       (ii) the facts upon which the claim is predicated were unknown to the
       petitioner and could not have been ascertained by the exercise of due
       diligence; or
       (iii) the right asserted is a constitutional right that was recognized by
       the Supreme Court of the U n ited States or the Supreme Court of
       Pennsylvania after the time period provided in this section and has
       been held by that court to apply retroactively.

42 Pa. C.S.A. § 9545(b)(1)(i-iii). Williams, however, has failed to plead and prove any

exception to the one-year PCRA time bar.

       Although Williams was resentenced on October 16, 2015, because he was

serving an illegal sentence for which this Court granted PCRA relief, this does not

change the date when the judgment of sentence became final. The relief granted on

Williams' initial PCRA petition, which was limited to resentencing, did not "reset the

clock" for purposes of calculating the date Williams' judgment of sentence became final

with respect to claims unrelated to the resentencing. Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008). See a/so Commonwealth v. Dehart, 730 A.2d

991, 993 n.2 (Pa.Super. 1999), appeal denied, 560 Pa. 719, 745 A.2d 1218 (1999)

(stating successful PCRA petition does not affect calculation of finality of judgment of

sentence where relief granted neither restored petitioner's direct appeal rights nunc pro

tune nor disturbed conviction, but affected petitioner's sentence only). As to six of the

seven claims raised by Williams, this is a serial petition whose timeliness must be

measured against the date Williams' original judgment of sentence became final -

February 16, 2014.

       Williams argues, however, that in the first PCRA proceeding he was granted

relief on the Alleyne claim only while "the claims involving the trial, first sentencing, and



                                             13
first direct appeal ... were never ruled upon." See Answer to Notice of Dismissal at ,i

1.1. In Williams' 2014 prose PCRA petition he claimed his trial attorney was ineffective

for failing to challenge the sufficiency of the evidence to support his convictions for

conspiracy and criminal use of a communication facility. See 2014 PCRA

Memorandum of Law at 6-15. In his amended counseled petition, Williams raised a

different claim: whether the sentence imposed upon him was illegal in light of Alleyne.

Williams' decision to not incorporate his initial prose petition into his counseled petition

operated as an abandonment of the ineffective assistance of counsel claim. Clearly, as

was his obligation, PCRA counsel examined the merits of Williams' prose claim and

determined the issue was not worth pursuing in the amended petition. See

Commonwealth v. Johnson, 179 A.3d 1153, 1157 (Pa. Super. 2018). Thus, the pro

se claim was not incorporated, and, in turn, was waived and not ruled upon by this

Court. Indeed, to have considered and disposed of it during the PCRA process would

have been trial court error. See Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1,

10 n.4 (2008) ("[A] criminal defendant currently represented by counsel is not entitled to

'hybrid representation' - i.e., he cannot litigate certain issues prose while counsel

forwards other claims."); Commonwealth v. Markowitz, 32 A.3d 706, 713 n.5 (Pa.

Super. 2011) ("[T]he PCRA court is only permitted to address issues raised in a

counseled petition."). Accordingly, the sole claim addressed by this Court was the one

contained in the counseled PCRA petition - the Alleyne sentencing issue. Any other

claims involving the trial, first sentencing, and first direct appeal were waived by

Williams in his first PCRA proceeding, and are now untimely.



                                             14
       There are, however, two claims raised by Williams which relate to the ineffective

assistance of resentencing counsel. In order to prevail on a claim of ineffective

assistance of counsel made in the post conviction context, a defendant must overcome

the presumption that counsel is effective by establishing by a preponderance of the

evidence that: the underlying claim has arguable merit; trial counsel had no reasonable

basis for proceeding as he did; and the defendant suffered prejudice. See 42

Pa.C.S.A. § 9543(a)(2)(ii): Commonwealth v. Spotz, 616 Pa. 164, 187, 47 A.3d 63, 76

(2012) (citing Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975-76

(1987)). The client has the burden of establishing counsel's ineffectiveness because

counsel is presumptively effective. Id.

      To establish the prejudice prong, the defendant must show that there is a

reasonable probability that the outcome of the proceedings would have been different

but for counsel's ineffectiveness. Commonwealth     v. Chmiel, 612 Pa. 333, 362-63, 30
A.3d 1111, 1127-28 (2011 ). "We stress that boilerplate allegations and bald assertions

of no reasonable basis and/or ensuing prejudice cannot satisfy a defendant's burden to

prove that counsel was ineffective." Id. (quoting Commonwealth     v. Paddy, 609 Pa.
272, 292, 15 A.3d 431, 443 (2011 )). Where a petitioner has not met the prejudice

prong of the ineffectiveness standard, the claim may be dismissed on that basis alone

without a determination of whether the arguable merit and client's interest prongs have

been met. Commonwealth       v. Wright, 599 Pa. 270, 320-21, 961 A.2d 119, 148-49

(2008); Commonwealth v. Zook, 585 Pa. 11, 26, 887 A.2d 1218, 1227 (2005).




                                           15
        In his 2018 Amended PCRA Petition, Williams claims his "Second Direct Appeal

counsel" was ineffective for ( 1) failing to challenge the weight of the trial evidence, and

(2) "fa i Ii ng to properly ad vacate at the [second] se nten ci ng hearing." See 2 O 1 8

Amended PCRA Petition at fflJ 3.3, 5. The first claim of ineffectiveness, although

related to resentencing counsel, is unrelated to the actual resentencing. As noted

above, Williams properly exercised his direct appellate rights following his jury trial and

sentencing. His first PCRA petition was unquestionably a PCRA petition and the relief

granted was post-conviction relief. Moreover, the relief granted in the first PCRA action

did not affect the adjudication of guilt, but merely the sentence imposed. Accordingly,

because Williams' claim of ineffectiveness against "Second Direct Appeal counsel" for

failing to challenge the weight of the trial evidence relates to the underlying 2011 trial,

which is a claim unrelated to his 2015 resentencing, his claim is untimely, and this Court

lacks jurisdiction to address it." See McKeever, 947 A.2d at 785; Dehart. 730 A.2d at

993 n.2.




       14Williams   had the constitutional right to appeal his judgment of sentence entered after
this Court granted him PCRA relief based upon Alleyne. However, in that direct appeal,
Williams "was permitted to raise issues pertaining only to the re-sentencing procedure itself; his
underlying claims of trial error regarding his non-vacated convictions could not be addressed on
direct appeal from re-sentencing." McKeever, 947 A.2d at 786 (citing Commonwealth v.
Gaito, 277 Pa. Super. 404, 419 A.2d 1208, 1211 n. 4 (1980)).
         In Williams' second direct appeal following the resentencing, counsel did challenge the
sufficiency of the evidence underlying Williams' 2011 convictions in this matter. Relying on
Anderson, 801 A.2d at 1266, the Superior Court held that because Williams had already
litigated a direct appeal challenging his convictions he was barred from raising any issues other
than a challenge to the sentence imposed after this Court granted Williams' first PCRA petition
and vacated his judgment of sentence of August 4, 2011. See Wi I Iiams, 151 A. 3d at 625. Th is
ruling would have been the same had counsel challenged the weight of the evidence, as
Williams now claims he should have done.

                                                16
        In contrast, Williams' second claim of error with respect to his resentencing is

timely. On October 16, 2015, Williams was resentenced following this Court's grant of

PCRA relief because Williams was serving an illegal sentence which included

mandatory minimum sentences ruled unconstitutional in Alleyne. Williams' new

sentence became final 30 days after the Superior Court affirmed the judgment on direct

appeal on November 23, 2016. Williams filed his prose petition on September 5, 2017,

which was within one year of the date his new judgment of sentence became final.

Thus, this Court has jurisdiction to address Williams' collateral challenge related to his

2015 resentencing proceeding. See Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d

345 (2011).

       Williams claims his ''Second Direct Appeal counsel" was ineffective for "failing to

properly advocate at the [second] sentencing hearing." See 2018 Amended PCRA

Petition at ,r 5. Williams specifically objects to counsel's statement at the resentencing

hearing that "there's no real legal argument to change the sentence at this point." N.T.,

Video Resentencing Hearing at 10. Williams claims this is a misstatement of the law,

and counsel was obligated to present, and the court was required to consider, Williams'

"instructional record and adjustment at resentencinq.?" 2018 Amended PCRA Petition

at,r5.1.2.

       In fact, there was substantial evidence presented at the resentencing regarding

Williams' institutional record. Via video conferencing, Williams informed the Court of


       15This Court is not familiar with the term "instructional record" as it relates to sentencing;
nor could any appellate court cases be found addressing this term. There is substantial case
law, however, regarding the consideration of "institutional records" when sentencing and/or
resentencing a criminal defendant.

                                                 17
his employment with the Department of Corrections (DOC), and his successful

completion of all mandatory programming. N.T., Video Resentencing Hearing at 6.

Additionally, Williams sent a letter to the Court dated October 13, 2015, in anticipation

of his resentencing in which he detailed his low custody level status, his DOC transfer

due to good behavior, his employment in the Restricted Housing Unit where he assists

with "the feeding, cleaning, and counseling of problematic inmates while they serve

sanctions for administrative and disciplinary reasons," and his work with family

members "on the outside who are starting a program for at-risk youth." In his letter and

during the resentencing hearing, Williams further accepted full responsibility for his

actions. Id.

        Defense counsel also provided four letters of support for Williams, some of

which outlined the steps Williams was taking to change his life and to improve his

situation in prison. N.T., Video Resentencing Hearing at 7-8. Moreover, counsel

introduced the testimony of Williams' sister who discussed Williams' future plans for

education in a trade and employment in a family business upon his release from prison.

Id. at 9.

        Finally, defense counsel addressed the Court and argued Williams was a

changed man from the original sentencing in 2011. His rehabilitation stemmed from his

completion of the mandatory programming, his employment in "one of the worst jobs in

the prison," and his acceptance of responsibility for his criminal actions. N.T., Video

Resentencing Hearing at 9-10. Thus, a review of the record refutes Williams' claim that

defense counsel failed to properly advocate for him at the resentencing hearing.



                                            18
       With respect to defense counsel's statement regarding "no real legal argument to

change the sentence," it is unclear as to precisely what counsel was referring. N.T.

Video Resentencing Hearing at 10. All parties agreed that the law required a new

sentence for those Counts where mandatory minimum sentences had previously been

imposed, i.e., Counts 2 through 6. The Court reviewed the changes in the Sentencing

Guidelines for Counts 2 (conspiracy), 3 (PWID) and 5 (PWID), and noted that "[i]f the

mandatory sentence had not been imposed, the guidelines would have been higher, but

it would be an illegal sentence for [the Court] to increase [Williams'] sentence on those

counts."16 N.T., Video Resentencing Hearing at 5. The Sentencing Guidelines for

Counts 1 (corrupt organizations) and 7 (criminal use of communication device) did not

change. Only Counts 4 (possession with intent to deliver 14 grams of cocaine) and 6

(possession with intent to deliver 14 grams of cocaine) saw the standard guidelines go

down from 60 months' incarceration to 27 to 33 months' incarceration.

       Accordingly, Williams' sentences on Counts 1, 2, 3, 5 and 7 did not change from

2011. The sentences on Counts 4 and 6 were reduced from 5 to 10 years'

incarceration to 2.75 to 5.5 years' incarceration. Recognizing that the Court had

previously made the sentences on Counts 2, 5 and 7 consecutive, defense counsel

asked the Court to consider a sentence where all counts were run concurrently, given



       "Count 2, conspiracy to possess with the intent to deliver 200 grams of cocaine, had a
mandatory minimum of 60 months. Williams' standard range is now 72 to 90 months. Count 3,
possession with intent to dellver 126 grams of cocaine, had a mandatory minimum of 48
months and standard range guidelines of 60 months' incarceration. Williams' standard range is
now 72 to 90 months' incarceration. Count 5, possession with intent to deliver 53 grams of
cocaine, had a mandatory minimum of 48 months and standard range guidelines of 60 months'
incarceration. Williams' standard range is now 60 to 72 months' incarceration. N.T., Video
Resentencing Hearing at 4.

                                             19
the rehabilitation that Williams had demonstrated. N.T., Video Resentencing Hearing at

10.

       However, as in 2011, Counts 1, 3, 4, 5 and 6 were made concurrent with one

another, and Counts 2, 5 and 7 were ordered consecutive, for an aggregate sentence

of 11 to 22 years' incarceration. Given the new Sentencing Guidelines, the Court noted

that the net aggregate sentence was actually a mitigated sentence and a lesser

sentence than could otherwise have been imposed at the time of the original sentence.

       Williams has failed to establish by a preponderance of the evidence that defense

counsel failed to properly advocate for him at the resentencing hearing or that he

suffered prejudice because of any alleged inaction of counsel. See 42 Pa.C.S.A. §

9543(a)(2)(ii); Spotz, 616 Pa. at 187, 47 A.3d at 76.


Ill.   Conclusion


       For the reasons set forth above, Williams' 2018 Amended PCRA Petition will be

denied in part and dismissed in part, without a hearing.

       Accordingly, I enter the following:




                                             20
