J-S30017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

BOBBY L. SHOWELL

                         Appellant                     No. 142 EDA 2014


              Appeal from the PCRA Order December 20, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0208111-2006


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

CONCURRING MEMORANDUM BY JENKINS, J.:               FILED OCTOBER 6, 2015

      I concur because, like the majority, I believe we should affirm the

order denying Appellant’s petition for relief.    I write separately because I

disagree with the trial court’s analysis of Appellant’s ineffective assistance of

counsel claim as it pertains to his counsel’s failure to file a motion for

reconsideration of sentence.

      Appellant argues his counsel was ineffective for failing to timely file a

motion for reconsideration of sentence after the Philadelphia County Court of

Common Pleas sentenced him to an aggregate term of thirty-one (31) to

sixty-two (62) years’ incarceration. He avers that counsel had no strategic

basis for filing the motion late, and that he suffered prejudice in that he

could not argue discretionary aspects of sentencing claims on appeal.
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       This Court follows the Pierce1 test adopted by our Supreme Court to

review claims of ineffective assistance of counsel:

          When a petitioner alleges trial counsel’s ineffectiveness in
          a PCRA petition, he must prove by a preponderance of the
          evidence that his conviction or sentence resulted from
          ineffective   assistance    of   counsel   which,     in   the
          circumstances of the particular case, so undermined the
          truth-determining process that no reliable adjudication of
          guilt or innocence could have taken place. We have
          interpreted this provision in the PCRA to mean that the
          petitioner must show: (1) that his claim of counsel’s
          ineffectiveness has merit; (2) that counsel had no
          reasonable strategic basis for his action or inaction; and
          (3) that the error of counsel prejudiced the petitioner-i.e.,
          that there is a reasonable probability that, but for the error
          of counsel, the outcome of the proceeding would have
          been different. We presume that counsel is effective, and
          it is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal

denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct.

2029, 164 L.Ed.2d 782 (2006) (internal citations and quotations omitted).

“If an appellant fails to prove by a preponderance of the evidence any of the

Pierce prongs, the Court need not address the remaining prongs of the

test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009),

appeal denied, 990 A.2d 727 (Pa.2010) (citation omitted).

       The trial court reasoned:

          In the case sub judice, Appellant was not entitled to a
          reconsideration of his sentence and a motion to obtain post
          sentence relief would not have been granted.[…] The
____________________________________________


1
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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         [c]ourt would not have granted a motion for
         reconsideration of sentence and trial counsel will not be
         deemed ineffective for failing to pursue a meritless motion.

Trial Court Opinion at 7-8.

      I agree with the trial court that it would not have granted Appellant’s

motion for reconsideration of sentence, however, the motion would have

properly preserved his sentencing issue in this Court.

      Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must comply with the following requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (1) whether appellant has filed a timely notice of
      appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
      properly preserved at sentencing or in a motion to reconsider
      and modify sentence, see Pa.R.Crim.P. [720]; (3) whether
      appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
      whether there is a substantial question that the sentence
      appealed from is not appropriate under the Sentencing Code.

Id.

      Here, the court sentenced Appellant on January 10, 2007. His counsel

filed a post sentence motion on January 24, 2007, which challenged the

discretionary aspects of his sentence. Counsel could not have had a strategic

reason for filing the motion late.

      On December 26, 2007, Appellant filed a PCRA petition requesting his

appeal rights be reinstated nunc pro tunc, however, he did not seek, and the



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trial court did not grant, reinstatement of the right to file post-sentence

motions nunc pro tunc.         After the trial court reinstated his appeal rights,

Appellant appealed to this Court and his failure to timely file a post-sentence

motion resulted in Appellant waiving his claim challenging the discretionary

aspects of his sentence on appeal. See Commonwealth v. Showell, 3437

EDA 2007, unpublished memorandum at 7-8 (Pa.Super., filed December 29,

2009) (“Appellant’s failure to file timely post-sentence motions waives any

complaint concerning sentence that does not involve the lawfulness of the

sentence itself.”).

       Counsel’s failure to timely file a post-sentence motion resulted in

Appellant waiving his discretionary aspects of sentencing claims on appeal in

this Court.2, 3 Although I disagree with the trial court’s ineffective assistance

of counsel analysis ending with its conclusion that it would not have granted

Appellant’s post-sentence motion, ultimately Appellant suffered no prejudice.

       In    analyzing   why     it   would    not   have   granted   a   motion   for

reconsideration of sentence, the court reasoned:

            The sentence imposed in the instant case does not violate
            any provision of the Sentencing Code and is within the
____________________________________________


2
  We note that Appellant did not claim appellate counsel was ineffective for
failing to request his right to file post-sentence motions nunc pro tunc.
3
  “[C]ounsel’s failure to file post-sentence motions does not fall within the
narrow ambit of ineffectiveness claims requiring no finding of prejudice.”
Commonwealth v. Fransen, 986 A.2d 154, 158 (Pa.Super.2009).




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          fundamental norms underlying the sentencing scheme.
          Before imposing sentence the [c]ourt considered the
          Sentencing     Guidelines,   Appellant’s  testimony,   the
          Presentence Mental Health Evaluation, and arguments of
          counsel. At no time did Appellant show remorse for his
          crimes, but rather, he steadfastly asserted his right as a
          parent to inflict such discipline and repeatedly attempted
          to justify his horrific crimes against this eight year old
          child. Under the circumstances presented by this case, the
          sentence of the [c]ourt is not excessive and is consistent
          with the Sentencing Guidelines.

Trial Court Opinion at 7 (citations to the record omitted).

      This Court would not have granted Appellant’s appeal if he had

properly preserved his sentencing issue because the trial court did not abuse

its discretion in sentencing him. Thus, he has suffered no prejudice.

      I agree with the analysis of the majority and the trial court on all other

issues.



      Gantman, P.J. joins this Concurring Memorandum.




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