J-S48029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CEDRIC ANTONIO GLASS

                            Appellant                 No. 330 MDA 2014


                 Appeal from the PCRA Order January 15, 2014
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0001866-2011


BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                       FILED FEBRUARY 09, 2015

        Cedric Antonio Glass appeals from the order of the Lackawanna County

Court of Common Pleas dismissing his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541, et seq. We remand to

the PCRA court for an evidentiary hearing and the issuance of a

supplemental 1925(a) opinion.

        Glass was charged with six counts of possession of a controlled

substance with the intent to distribute (“PWID”),1 one count of criminal use

of a communication facility,2 one count of resisting arrest,3 one count of
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 Pa.C.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 7512(a).
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possession    of   a    controlled    substance,4   one   count   of   possession   of

marijuana,5 one count of possession of drug paraphernalia,6 and one count

of tampering with evidence.7           On January 27, 2012, Glass pled guilty to

criminal use of a communication facility, resisting arrest, and one PWID

count. N.T., 1/27/2012, at 3-4. The remaining counts were nolle prossed.

        Following the guilty plea hearing, Glass’s counsel requested immediate

sentencing. N.T., 1/27/2012, at 5. Counsel then stated:

           We’ve had an opportunity to review the case with
           probation and the District Attorney. It appears [Glass] has
           a prior record score of five.      We have reviewed the
           standard ranges. I’ve had a chance to review the standard
           range with [Glass] and he’s prepared to go forward with
           sentencing.

N.T., 1/27/2012, at 5.

        The trial court sentenced Glass to 27 to 54 months’ imprisonment and

2 years’ consecutive special probation for the PWID conviction; 12 to 24

months’ imprisonment for the criminal use of a communication facility

conviction to be served consecutive to the PWID sentence; and an additional

                       _______________________
(Footnote Continued)
3
    18 Pa.C.S. § 5104.
4
    35 Pa.C.S. § 780-113(a)(16).
5
    35 Pa.C.S. § 780-113(a)(31).
6
    35 Pa.C.S. § 780-113(a)(32).
7
    18 Pa.C.S. § 4910(1).




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consecutive sentence of 2 years’ special probation for the resisting arrest

conviction. The court, therefore, imposed an aggregate sentence of 39 to 78

months’ imprisonment followed by 4 years’ probation.             Id. at 6.   Trial

counsel did not request, and the trial court did not order, a pre-sentence

report.

       Glass did not file post-sentence motions or a direct appeal.           On

November 27, 2012, Glass filed a pro se PCRA petition alleging ineffective

assistance of counsel “for failure to inform [Glass] of the severity of [his]

guilty plea without having a pre-sentence investigation conducted first.”

Motion for Post Conviction Collateral Relief, at p. 7. On April 23, 2013, the

PCRA court appointed counsel.                  On July 9, 2013, counsel filed a

Turner/Finley8 letter and a petition to withdraw as counsel. Counsel stated

Glass’s claim was that “[trial] counsel was ineffective as he received an

illegal sentence.” Letter to Judge Michael J. Barrasse, dated July 3, 2013, at

p. 2 [hereinafter Turner/Finley Letter].9 The Turner/Finley letter did not

mention the pre-sentence report, or lack thereof. See id., at 1-4.




____________________________________________


8
 Commonwealth v. Turner, 544 A.2d 927 (Pa.1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super.1988).
9
  The Turner/Finley letter is not paginated. All page numbers have been
supplied by this Court.




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       On January 15, 2014, the PCRA court granted counsel’s petition to

withdraw and dismissed Glass’s PCRA petition.10          On February 10, 2014,

Glass filed a notice of appeal.          On February 25, 2014, the PCRA court

appointed new counsel and ordered counsel to file a concise statement of

errors complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b) within 21 days of the order. Counsel filed a motion for

extension of time to file the concise statement. On February 28, 2014, the

PCRA court granted the extension, requiring counsel to file the concise

statement on or before April 10, 2014. Counsel filed a concise statement on

April 2, 2014.

       The PCRA court did not file an opinion as required by Pennsylvania

Rule of Appellate Procedure 1925(a).           On August 27, 2014, we remanded



____________________________________________


10
    The PCRA court dismissed the petition without a hearing and without
issuing notice of its intent to dismiss the petition without a hearing.
However, where a Turner/Finley letter has been filed and served on the
defendant, and where the court waits twenty days following the service of
this letter, it can dismiss a PCRA petition without a hearing and without
notice of its intent to do so. Commonwealth v. Bond, 630 A.2d 1281
(Pa.Super.1993); cf. Commonwealth v. Hopfer, 965 A.2d 270, 271, 275
(Pa.Super.2009) (procedure outlined in Bond did not justify dismissal of
PCRA petition where the PCRA court granted request to withdraw and
dismissed petition less than 20 days after the petitioner received counsel’s
request to withdraw). Further, Glass did not object in his appellate brief to
the PCRA court’s failure to issue a notice of intent to dismiss the petition
and, therefore, waived the issue. Commonwealth v. Boyd, 923 A.2d 513,
514 n.1 (Pa.Super.2007) (noting appellant waived any complaint of the
court’s failure to issue notice of its intent to dismiss the petition).



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this case for the issuance of a 1925(a) opinion, and on September 23, 2014,

the trial court filed an opinion.

      Glass raises the following issues on appeal:

         A. Whether the trial court erred when the trial court
         dismissed [Glass’s] Petition under the [PCRA] when trial
         counsel failed to a file Petition for Reconsideration of
         Sentence.

         B. Whether the trial court erred when it dismissed
         [Glass’s] PCRA Petition when trial counsel failed to object
         to [Glass] being sentenced without a Pre-sentence
         Investigation.

         C. Whether the trial court abused its discretion in
         sentencing [Glass] without a Pre-sentence Investigation
         Report.

         D. Whether the trial court erred in not stating reasons for
         its sentence.

Appellant’s Brief at 5.

      As noted in this Court’s August 27, 2014 memorandum, Glass waived

his first, third, and fourth claims because he failed to raise them in his PCRA

petition. Commonwealth v. Glass, No. 330 MDA 2014, at *5 (Pa.Super.

filed Aug. 27, 2014); see, e.g., Commonwealth v. Albrecht, 720 A.2d

693, 701 (Pa.1998) (claim waived where not raised in PCRA petition). We

will address Glass’s second claim, which maintains trial counsel was

ineffective for failing to request a pre-sentence report.

      Our standard of review for the denial of post-conviction relief “is

limited to examining whether the court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.


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Ousley,      21   A.3d   1238   (Pa.Super.2011)   (citing   Commonwealth     v.

Morales, 549 Pa. 400, 701 A.2d 516, 520 (1997)).

       For ineffective assistance of counsel claims, the petitioner must

establish:    “(1) that the underlying claim has merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) but for

the errors or omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different.” Ousley, 21 A.3d at

1244    (quoting    Commonwealth        v.   Rivera,   10   A.3d   1276,   1279

(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove

any one of the three [ineffectiveness] prongs results in the failure of

petitioner's claim.” Id. (quoting Rivera, 10 A.3d at 1279).

       “The failure to request a pre-sentence report is not per se ineffective.”

Commonwealth v. Johnson, 517 A.2d 1311, 1317 (Pa.Super.1986) (citing

Commonwealth v. Broadwater, 479 A.2d 526 (1984)).               Counsel will be

found ineffective only “when the contents of the report would have caused

the sentencing judge to impose a lesser sentence.” Id. (citing Broadwater,

479 A.2d at 533).

       Without conducting a hearing, the PCRA court found counsel was not

ineffective for failing to request a pre-sentence report.      The PCRA court

found Glass failed to establish all three prongs of the ineffectiveness test.

Without a hearing, however, certain questions remain, including whether

counsel discussed the waiver of the pre-sentence report with counsel;

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whether any contents in the report could have swayed the court’s sentence,

i.e., whether “the contents of the report would have caused the sentencing

judge to impose a lesser sentence”; whether counsel’s decision to not

request a pre-sentence report was a reasonable strategy; and whether Glass

suffered prejudice as a result of the decision not to request a pre-sentence

report. Accordingly, we will remand this case with instructions for the trial

court to conduct an evidentiary hearing to determine whether Glass’s trial

counsel was ineffective for failing to request a pre-sentence report, and for

the issuance of a supplemental 1925(a) opinion following the hearing. See

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super.2007) (“It is

the responsibility of the reviewing court on appeal to examine each issue

raised in the PCRA petition in light of the record certified before it in order to

determine if the PCRA court erred in its determination that there were no

genuine issues of material fact in controversy and in denying relief without

conducting an evidentiary hearing.”) (quoting Commonwealth v. Khalifah,

852 A.2d 1238, 1239–40 (Pa.Super.2004))).

      The trial court shall conduct an evidentiary hearing within 45 days of

the date of this order and file a supplemental 1925(a) opinion within 30 days

of the evidentiary hearing.

      Case remanded to the PCRA court for an evidentiary hearing and the

issuance of a supplemental 1925(a) opinion as directed.               Jurisdiction

relinquished.




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     Judge Donohue joins this memorandum

     Judge Platt files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




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