J-S56005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 ANTHONY SUTTON                             :
                                            :
                     Appellant              :    No. 293 EDA 2019

          Appeal from the PCRA Order Entered December 19, 2018
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001025-2015


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, P.J.:                       FILED DECEMBER 31, 2019

      Anthony Sutton appeals from the December 19, 2018 order denying his

first petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. On appeal, Sutton asserts ineffective

assistance of both trial and direct appeal counsel. Specifically, Sutton contends

that trial and/or direct appeal counsel should have objected to the way the

trial court adjudicated his guilt. Moreover, Sutton claims trial and direct appeal

counsel should have preserved a challenge to the sufficiency of the evidence.

As we find neither of Sutton’s issues to be meritorious, we affirm.

       The factual background and procedural history of this case, as relevant,

are as follows. In 2014, Sutton fired several shots from a firearm, which hit a

nearby individual. At trial, the Commonwealth charged Sutton with twenty-

nine offenses, twenty-eight of which proceeded to a jury trial and one was

held for a bench trial.
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      The jury found Sutton guilty of carrying a firearm without a license, see

18 Pa.C.S.A. § 6106(a)(1), and carrying a firearm on the streets of

Philadelphia, see 18 Pa.C.S.A. § 6108, but found him not guilty as to all other

counts. The sole charged offense that did not go to a jury, possession of a

firearm by a prohibited person, see 18 Pa.C.S.A. § 6105(a)(1), was

adjudicated thereafter by the trial court. The trial court found Sutton guilty of

this crime.

      After his trials, the trial court sentenced Sutton to three consecutive

sentences, amounting to an aggregate term of eleven to twenty-two years of

imprisonment. Trial counsel filed a post-sentence motion, but concurrently

sought leave to withdraw as counsel. In disposing of these two matters, the

trial court granted trial counsel’s request to withdraw and denied Sutton’s

post-sentence motion.

      Appellate counsel was then appointed. Sutton filed a timely appeal to

this Court, and we granted appellate counsel’s motion to withdraw pursuant

to Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and its federal

predecessor, Anders v. California, 386 U.S. 738 (1967), and affirmed

Sutton’s judgment of sentence. See Commonwealth v. Sutton, 2017 WL

499410 (Pa. Super. 2017). Our Supreme Court denied Sutton’s pro se petition

for allowance of appeal, and several months later, the United States Supreme

Court denied Sutton’s petition for certiorari on January 22, 2018.

      On April 20, 2018, Sutton filed a timely PCRA petition, which was

dismissed after a full briefing and subsequent hearing. Sutton then filed a

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timely appeal to this Court.

      On appeal, Sutton presents two issues for our review:

      1) Did the PCRA court err in dismissing the PCRA claim that trial
         counsel was ineffective for failing to object to [Sutton] being
         convicted of possessing a firearm by a prohibited person (18
         Pa.C.S.[A.] § 6105) without a trial or pleas hearing, and was
         direct appeal counsel ineffective for failing to challenge the
         constitutionality of the procedure used to convict [Sutton]?

      2) Did the PCRA court err in dismissing the PCRA claim that direct
         appeal counsel was ineffective for failing to raise the claim that
         the evidence was insufficient to sustain the conviction for
         possessing a firearm by a prohibited person (18 Pa.C.S.[A.] §
         6105) because no evidence was presented that [Sutton] had
         the type of criminal record that brought him within the class of
         persons prohibited from possessing a firearm?

Appellant’s Brief, at 3.

      “On appeal from the denial of PCRA relief, our standard of review is

whether the findings of the PCRA court are supported by the record and free

of legal error.” Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007)

(citations omitted).

      Sutton contends that “there is no evidence that [he] knowingly,

intelligently[,] and voluntarily waived his right to a trial on the charge of

violating [18 Pa.C.S.A.] § 6105.” Appellant’s Brief, at 10. Sutton asserts that

“the trial court unilaterally pronounced [him] guilty without affording him a

trial or securing a plea of guilt.” Id. He argues that trial counsel was ineffective

for implicitly consenting to the trial court’s actions when the court adjudicated

Sutton’s guilt without any kind of trial or guilty plea. See id., at 11.

      He believes the trial court’s pronouncement of guilt was no more than a


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guess or an assumption as to what would have happened if he would have

been properly convicted and that he was prejudiced by counsel’s actions. See

id., at 16.

      In addition to the suggestion that Sutton was found guilty through a

flawed process, Sutton continues by stating that even if the trial court properly

found Sutton guilty, he believes that the evidence was insufficient to convict

him of the possession of a firearm by a prohibited person offense as “there

was no evidence to show when [Sutton] had been convicted of one of those

predicate offenses [set forth in 18 Pa.C.S.A. § 6105(b)] such that the

Commonwealth was unable to prove beyond a reasonable doubt that at the

time of his arrest … [Sutton] was no longer within the [offense’s] 60-day

[transfer] grace period.” Id., at 18 (emphasis in original).

      Under a typical claim alleging ineffective assistance of counsel, Sutton

would have to prove that: “(1) [his] underlying claim has arguable merit; (2)

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

petitioner suffered prejudice as a result of counsel’s action or inaction.”

Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013) (citations omitted).

Our prior decisions make clear that “[c]ounsel is presumed effective, and the

petitioner bears the burden of proving otherwise.” Id. (citation omitted).

Moreover, “[a] failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim.” Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.

2010) (citation omitted).

      We need not address all three prongs, as we conclude Sutton has not

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established the necessary prejudice to succeed. In situations such as this,

where Sutton

         seeks to collaterally attack his waiver of a jury trial, on grounds
         that it was caused by the ineffective assistance of his trial counsel,
         to prove prejudice, he must demonstrate a reasonable probability
         that but for counsel’s constitutionally deficient service, the
         outcome of the waiver proceeding would have been different, i.e.,
         that he would not have waived his right to a jury trial.

Commonwealth v. Mallory, 941 A.2d 686, 704 (Pa. 2008).

         We point out that other than generalized and largely irrelevant citations

to what would apparently constitute prejudice, see Appellant’s Brief, at 15

(discussing, for example, the prejudicial denial of the right to self

representation or to one’s right to select an attorney), Sutton does not cite to

any directly applicable authority. Further, Sutton concedes that trial counsel’s

“strategy in seeking severance pre-trial was unquestionably the right call[.]”

Id., at 14.

         While best practices would dictate that the trial court obtain a written

waiver to Sutton’s right to a jury trial in addition to a clear on-the-record

colloquy evincing the same, we see no basis to conclude that there is a

reasonable probability that Sutton would not have waived his right to a jury

trial:

         The [c]ourt: Sir, did you understand what she just explained to
         you in terms of that charge?

         [Sutton]: Yes, ma’am.




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      The [c]ourt: [The charges have] been bifurcated so that the jury
      does not hear that you had a prior conviction and the nature of
      that conviction. If the jury finds you guilty of possession of a
      firearm in the other sections, it’s been stated to this [c]ourt that
      –

      [Sutton’s trial counsel]: That I would simply concede the 6105.

      The [c]ourt: That that point would be conceded and this [c]ourt
      would formally find you guilty separately. Okay? Is that correct,
      sir?

      [Sutton]: Yes, ma’am.

      The [c]ourt: Okay. Do you have any difficulties about that? Do
      you understand that?

      [Sutton]: I understand.

N.T., 10/6/15, at 122-23. The following day, after the jury found Sutton guilty

of two other firearm-related offenses:

      [The Commonwealth]: … But we still have the matter of 6105,
      Your Honor.

      [Sutton’s trial counsel]: We bifurcated.

      The [c]ourt: Oh, right. And it’s been agreed that if [the jury]
      found [Sutton] guilty of the Violation of the Uniform Firearm’s Act,
      there’s no disagreement that this [c]ourt would find him guilty on
      the VUFA.

      [Sutton’s trial counsel]: Or that we would plead guilty. He’s
      already in custody.

      The [c]ourt: Whichever way you wish to do it. It was bifurcated.
      I can say what the verdict is if that’s easier for you.

      [Sutton’s trial counsel]: I mean, we’ll plead guilty, Your Honor.
      Whatever is fastest with less paperwork.

      The [c]ourt: Okay. Since it was agreed that it would be
      bifurcated and up to this [c]ourt to make that decision, I find you

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      guilty of Violation of the Uniform Firearm’s Act under Section
      6105.

N.T., 10/7/15, at 20-21.

      Although we note that these proceedings lacked the formality normally

associated with a defendant’s waiver of his right to a jury trial, the record

reflects the fact that: 1) Sutton was fully apprised of his rights by trial counsel;

2) Sutton understood the nature of what he was giving up by not seeking a

jury trial, he agreed to this disposition, and his comprehension and acceptance

of the conditional nature of the offense being adjudicated by a nonjury trial is

clear; and 3) the bifurcation of Sutton’s offenses, where the jury would not

hear about his prior criminal activity was reasonable under the circumstances,

see Appellant’s Brief, at 14. Additionally, while brief, Sutton received a

nonjury trial, which, in terms of evidence, was comprised of fact finding

performed by the jury empaneled to adjudicate his other charged offenses in

conjunction with Sutton’s own admissions.

      “Waivers [to fundamental rights] can occur by conduct or by

implication.” See Mallory, 941 A.2d at 697. We find that Sutton’s waiver of

to his right to a jury trial is more evident than one established through

implication. The Section 6105 charge was bifurcated and explicitly agreed to

by Sutton for a calculated purpose: so that the jury would not hear about his

prior conviction. Further, as noted, Sutton concedes that this strategy was

“unquestionably the right call.” Appellant’s Brief, at 14.




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      Sutton has failed to demonstrate that, absent counsel’s failure to object,

there is a reasonable probability he would not have waived his right to a jury

trial. See Mallory, 941 A.2d at 704. He has offered no rational basis for us to

conclude that he would have desired a jury trial if the question was again

raised. Moreover, there is no evidence that Sutton desired to alter the

trajectory of the conditional Section 6105 charge after the jury returned its

verdict.

      Sutton’s brief is replete with statements to the effect that he never

received a trial of any kind nor did he participate in a guilty plea. While the

trial court should have explicitly followed the Rules of Criminal Procedure, see

Pa.R.Crim.P. 620, we see no reason to conclude that Sutton was denied his

right to a trial. The record reflects that Sutton received both a jury and a

nonjury trial. Based on the combination of the jury’s findings as to his other

offenses and Sutton’s admission to the facts underpinning a Section 6105

charge, there was nothing more necessary for the court to find Sutton guilty

of that specific offense.

      Sutton next argues that there is insufficient evidence of record to sustain

his conviction under section 6105. He therefore contends trial and appellate

counsel were ineffective for not preserving this claim.

      Section 6105 identifies that a person convicted of an enumerated

offense “shall not possess, use, control, sell, transfer or manufacture or obtain

a license to possess, use, control, sell, transfer or manufacture a firearm in”


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Pennsylvania. 18 Pa.C.S.A. § 6105(a)(1). That statute does provide a limited

sixty-day exception by which individuals may sell or transfer their firearms to

another eligible person. See id., at § 6105(a)(2)(i).

      Both of the crimes the jury found Sutton guilty of required possession

of a firearm. See 18 Pa.C.S.A. §§ 6106, 6108. The Commonwealth submitted

evidence on Sutton’s firearm possession, see, e.g., N.T., 10/6/15, at 29, and

the jury found the Commonwealth’s evidence to be credible in its verdict, see

id., 10/7/15, at 17-18. Therefore, the jury’s finding established the requisite

possession of a firearm. In addition, Sutton conceded that he was a “prohibited

person” within the meaning of Section 6105 and did not, either at trial or now,

raise any exception to this designation. See N.T., 10/6/15, at 123.

      “Parties are free to bind themselves by stipulation on all matters not

affecting the jurisdiction and prerogatives of the court, and the court has the

power to enforce those stipulations.” Wayda v. Wayda, 576 A.2d 1060, 1067

(Pa. Super. 1990) (citations omitted). “A stipulation is a declaration that the

fact agreed upon is proven, and it must be enforced according to its terms.”

Commonwealth v. Belak, 825 A.2d 1252, 1256 n.10 (Pa. 2003) (citation

omitted). Sutton was free to stipulate that his prior conviction disqualified him

from possessing a firearm under Section 6105. See Commonwealth v.

Jemison, 98 A.3d 1254, 1261 (Pa. 2014).

      As the two constituent parts comprising the Section 6105 were met, by

way of unqualified stipulation to the predicate offense as well as a jury finding


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Sutton was in possession of a firearm, the evidence was sufficient for the trial

court to convict Sutton under this section. Accordingly, Sutton’s sufficiency of

the evidence claim lacks arguable merit, see Roney, 79 A.3d at 604, and

counsel were not ineffective for failing to preserve this claim for review on

direct appeal.

      In finding neither of Sutton’s claims to be meritorious, we conclude that

the PCRA court did not err in dismissing his petition.

      Order affirmed.

      Judge Nichols joins in the memorandum.

      Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/19




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