J-S16036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SEAN JOSE RAIN,

                            Appellant                No. 1236 WDA 2016


            Appeal from the Judgment of Sentence October 5, 2015
               in the Court of Common Pleas of Mercer County
              Criminal Division at No.: CP-43-CR-0001010-2014


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 02, 2017

        Appellant, Sean Jose Rain, appeals, nunc pro tunc, from the judgment

of sentence imposed on October 5, 2015, following his jury conviction of

person not to possess firearms.1 We affirm.

        We take the underlying facts and procedural history in this matter

from the trial court’s October 31, 2016 opinion and our independent review

of the certified record.

              On September 9, 2014, the Commonwealth filed [a]
        criminal information against [Appellant] in connection with a
        shooting that occurred on October 10, 2013. This information
        charged him with attempted first-degree murder,[a] conspiracy to
        commit first-degree murder,[b] conspiracy to commit aggravated
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 6105(a)(1).
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     assaults,[c] two counts of aggravated assault,[d] discharging a
     firearm into an occupied structures,[e] two counts of person not
     to possess a firearm,[f] two counts of carrying a firearm without
     a license,[g] and recklessly endangering another person.[h] On
     November 5, 2014, [Appellant] made an application to sever the
     two counts of person not to possess a firearm, which [the trial
     c]ourt granted two days later. [The trial c]ourt empaneled a
     jury for a trial on the murder, assault, discharging a firearm into
     an occupied structure, reckless endangerment, and carrying a
     firearm without a license [charges] which returned a not guilty
     verdict on all counts on February 20, 2015. At trial, there was
     no direct stipulation as to whether [Appellant] was licensed to
     carry a firearm, however, defense counsel did stipulate to Mercer
     County Sheriff and Pennsylvania State Police reports that
     indicated [Appellant] did not have a license to carry a firearm.
     Also at trial, defense witness Andre Hailstock testified that
     [Appellant] possessed a revolver on the 900 block of Fruit Ave.,
     Sharon, Pennsylvania the day before the shooting.
           [a]
              18 Pa.C.S.[A.] § 2502(a), 18 Pa.C.S.[A.] §
           901(a).
           [b]
                 18 Pa.C.S.[A.] § 2502(a), 18 Pa.C.S.[A.] § 903.
           [c]
              18 Pa.C.S.[A.] § 2702(a)(1), 18 Pa.C.S.[A.] §
           903.
           [d]
                 18 Pa.C.S.[A.] §§ 2702(a)(1),(4).
           [e]
                 18 Pa.C.S.[A.] § 2707.1(a).
           [f]
                 18 Pa.C.S.[A.] § 6105(a)(1).
           [g]
                 18 Pa.C.S.[A.] § 6106(a)(1).
           [h]
                 18 Pa.C.S.[A.] § 2705.

            On March 1[0], 2015, [Appellant] filed an application to
     quash the counts of person not to possess a firearm, on the
     grounds that the Commonwealth was collaterally estopped from
     bringing the gun charges due to the jury acquittal.          The
     Commonwealth filed a concurrent motion to amend the criminal
     information to add a new count of person not to possess. [The
     trial c]ourt in a June 4, 2015 order granted [Appellant’s] motion

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     to quash due to collateral estoppel but also granted the
     Commonwealth’s motion to amend the information and allowed
     the case to proceed.

            On July 15, 2015[,] a jury convicted [Appellant] of being a
     person not to possess a firearm . . . and [the trial c]ourt
     sentenced [Appellant] on October 5, 2015[,] to [not less than
     thirty nor more than sixty months of] incarceration in a state
     correctional facility. That same day, [Appellant’s] trial counsel
     orally moved to withdraw which [the trial c]ourt granted and
     subsequently appointed the Public Defender’s Office of Mercer
     County to represent [Appellant] on appeal.            Despite this
     appointment, the Public Defender’s Office had no contact with
     [Appellant], and it [did] not file an appeal or post sentence
     motions on [Appellant’s] behalf.       According to Pa.R.Crim.P.
     720(A)(3), [Appellant’s] deadline to file a notice of appeal to the
     Superior Court passed on November 4, 2015[,] without action,
     despite the fact that [Appellant] wrote to the Public Defender’s
     Office of Mercer County requesting an update on his appeal and
     an in-person meeting with his counsel. On February 5, 2016,
     the Public Defender’s Office of Mercer County made an oral
     motion to withdraw as counsel due to conflicts of interest, which
     this Court granted, and subsequently appointed the present
     counsel for [Appellant’s] representation.

            [Appellant], through his present counsel, filed his first
     PCRA[i] petition on July 15, 2016[,] and argued that his originally
     appointed appellate counsel was ineffective for failing to: file
     post-sentence motions, file a direct appeal, meet with
     [Appellant] to discuss his appellate rights, and call character
     witnesses at the time of trial. The PCRA petition also argued
     that [Appellant’s] sentence was outside of the guideline range
     and was unduly excessive.               [The trial c]ourt granted
     [Appellant’s] PCRA petition on July 25, 2016, on the grounds
     that [Appellant’s] initial appellate counsel was per se ineffective
     for failing to file a direct appeal after sentencing and restored his
     appellate rights nunc pro tunc. After a detailed consideration,
     [the trial c]ourt determined that it lacked the jurisdiction to
     entertain any of the issues raised in [Appellant’s] PCRA not
     related to the ineffective assistance of appellate counsel,
     because as soon as it restored appellate rights, [Appellant’s]
     sentence was no longer final.




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               [i]
                 [] Post Conviction Relief Act, 42 Pa.C.S.[A.] §§
               9541-9546[].

(Trial Court Opinion, 10/31/16, at 1-3).

         Appellant filed a timely notice of appeal on August 17, 2016.           On

August 22, 2016, the trial court ordered Appellant to file a concise statement

of errors complained of on appeal. See Pa.R.A.P. 1925(b). On September

2, 2016, Appellant filed a timely Rule 1925(b) statement.             See id.    On

October 31, 2016, the trial court issued an opinion. See Pa.R.A.P. 1925(a).

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

               1.    Did the [t]rial [c]ourt abuse its discretion in
         sentencing Appellant excessively outside the recommended
         guidelines and in failing to place sufficient weight on mitigating
         factors presented at the time of sentencing and for placing too
         much weight on Appellant’s criminal record, juvenile record, and
         the gravity of the current offense?

               2.     Can originally appointed [a]ppellate counsel, the
         Public Defender’s Office, be rendered ineffective for failing to file
         post[-]sentence motions, meet with Appellant, and failing to file
         a notice of appeal?

                3.   Did [t]rial [c]ounsel render ineffective assistance for
         failing to interview prospective character witnesses for
         Appellant’s trial?

                4.     Did [t]rial [c]ounsel render ineffective assistance for
         failing to call known, present, and available character witnesses
         at trial to the detriment of Appellant’s case?

(Appellant’s Brief, at 5-6).

         In his first claim, Appellant challenges the discretionary aspects of

sentence. (See Appellant’s Brief, at 22-33). However, Appellant waived this

issue.

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       It is settled that, “[i]ssues challenging the discretionary aspects of

sentence must be raised in a post-sentence motion or by presenting the

claim to the trial court during the sentencing proceedings.         Absent such

efforts, an objection to a discretionary aspect of a sentence is waived.”

Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004), appeal

denied, 860 A.2d 122 (Pa. 2004) (citations and quotation marks omitted).

Here, Appellant neither raised any objections to the sentence at sentencing

nor filed a post-sentence motion challenging the discretionary aspects of

sentence.     Thus, he waived any challenge to the discretionary aspects of

sentence.

       Appellant’s remaining three claims all argue ineffective assistance of

counsel. (See Appellant’s Brief, at 33-40). However, these claims are not

ripe   for   review.    Our   Supreme    Court   reaffirmed   the    holding   of

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), in Commonwealth v.

Holmes, 79 A.3d 562, (Pa. 2013).        In Holmes, our Supreme Court held

“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, supra at 576 (footnote omitted).      The Holmes Court

noted two narrow exceptions for “extraordinary circumstances” to the

broader rule, holding “where the trial court, in the exercise of its discretion,

determines that a claim (or claims) of ineffectiveness is both meritorious and


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apparent from the record so that immediate consideration and relief is

warranted,” and allowing review for “good cause,” such as the shortness of a

sentence, of “multiple, and indeed comprehensive, ineffectiveness claims” if

such review is accompanied by a knowing, voluntarily, and express waiver of

PCRA rights. Id. at 577–78. Instantly, neither of these exceptions applies.

Therefore, Appellant’s ineffective assistance of counsel issues are premature

and we decline to address the merits.         This is without prejudice to

Appellant’s right to present these ineffectiveness claims in a timely PCRA

petition.

      All of Appellant’s issues on appeal are either waived or premature.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2017




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