J-S57013-18



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 WYNDEL DEVERO                             :
                                           :
                    Appellant              :   No. 3976 EDA 2017

              Appeal from the PCRA Order November 16, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0007044-2011


BEFORE:    PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PANELLA, J.                        FILED DECEMBER 20, 2018

      Wyndel Devero appeals, pro se, from the order entered in the

Philadelphia County Court of Common Pleas denying his first petition brought

pursuant to the Post Conviction Relief Act (“PCRA”), 18 Pa.C.S.A. §§ 9541-

9546, without a hearing. We affirm.

      Due to our disposition of this matter, a detailed recitation of the factual

and procedural history of this case is unnecessary. Briefly, in September 2012,

Appellant pled guilty to robbery, conspiracy to commit robbery, and

possessing an instrument of crime and was immediately sentenced to an

aggregate term of 8½ to 23 months imprisonment, followed by 17 years’

probation. Appellant was immediately paroled. Shortly thereafter, Appellant

was charged with aggravated assault.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S57013-18



       As a result of his new charge, a parole and probation violation hearing

was held pursuant to Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973).1

The court determined Appellant violated the terms of his probation and parole,

revoked his parole and ordered Appellant to serve the remainder of his back

time on his robbery conviction. The court also revoked Appellant’s

probationary sentences and resentenced him to an aggregate term of 10 to

20 years’ imprisonment, followed by 5 years’ probation.

       Appellant appealed. A panel of this Court affirmed Appellant’s judgment

of sentence and our Supreme Court denied allowance of appeal. See

Commonwealth v. Devero, No. 368 EDA 2014 (Pa. Super., filed Nov. 05,

2014) (unpublished memorandum).

       On February 1, 2016, Appellant filed a series of pro se PCRA petitions,

alleging his initial probationary sentence was illegal, he was illegally

resentenced in violation of Alleyne v. United States, 570 U.S. 99 (2013),

and that his resentencing violated the double jeopardy clause of the United

States and Pennsylvania Constitutions. The PCRA court appointed counsel who

later filed a Turner/Finley2 “no merit” letter and a motion to withdraw. Based

on counsel’s “no-merit” letter and its independent review of the record, the

____________________________________________


1 Kates permits parole and probation revocation hearings based on an alleged
“direct violation” of probation or parole in situations where the alleged
violation is premised upon conduct that is the subject of an open criminal case.
See 305 A.2d at 709.

2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

                                           -2-
J-S57013-18



PCRA court issued its notice of intent to summarily dismiss the petition.

Appellant did not respond to the PCRA court’s notice. The court later permitted

counsel to withdraw and dismissed Appellant’s petition. This timely appeal

follows.

         On appeal, Appellant raises the following issues:

   I.       Did the [t]rial [c]ourt err and abuse its discretion when it
            imposed a sentence of ten (10) to twenty (20) years
            imprisonment, plus five (5) years probation when it failed to
            properly wait until the final disposition of the new criminal
            charges…. Thus, in violation of the [p]robation and [p]arole
            [s]tatute.

   II.      Did the [t]rial [c]ourt err in denying Appellant’s [PCRA]
            [p]etition since trial counsel was constitutionally ineffective for
            failing to object to the [c]ourt’s assertion that [Appellant’s]
            acceptance of responsibility for an Aggravated Assault … was
            enough to revoke the [p]robation and [p]arole and resentence
            him to a term of imprisonment without following the statutory
            requirements pursuant to 61 Pa.C.S.A. § 6138. Thus, violating
            [Appellant’s] rights under both the Sixth and Fourteenth
            Amendments.

   III.     Did the [t]rial [c]ourt err in denying Appellant’s [PCRA]
            [p]etition since direct appeal counsel was constitutionally
            ineffective for failing to challenge the fact that the [t]rial [c]ourt
            erred and abused it’s [sic] discretion when it revoked
            [p]robation and [p]arole … and resentenced [Appellant] prior
            to the disposition of new criminal charges … where he was
            found to be [n]ot [g]uilty. Thus a violation of [Appellant’s] right
            to due process pursuant to the Fourteenth Amendment.

Appellant’s Brief, at 3, ¶¶ I-III.

         Prior to reaching the merits of any of Appellant’s claims, we must

determine whether he has properly preserved these claims for our review.

Appellant’s first issue raises claims of trial court error.


                                          -3-
J-S57013-18


     The PCRA, however, procedurally bars claims of trial court error,
     by requiring a petitioner to show the allegation of error is not
     previously litigated or waived. 42 Pa.C.S.A. §§ 9543(a)(3), 9544.
     At the PCRA stage, claims of trial court error are either previously
     litigated (if raised on direct appeal) or waived (if not).
     Commonwealth v. Spotz, 18 A.3d 244, 260-61 (Pa. 2011)
     (rejecting claims of trial court error as either previously litigated
     where raised on direct appeal or waived where not raised direct
     appeal).

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015)

(en banc).

     Appellant failed to raise this issue on direct appeal. So, we find that

issue waived.

     Appellant raises his remaining claims, of counsel’s ineffectiveness, for

the first time in his Rule 1925(b) statement. Because Appellant failed to

present either of these claims to the PCRA court, these claims have not been

properly preserved for our review. See Pa.R.A.P. 302(a); Commonwealth v.

Mason, 130 A.3d 601, 626 (Pa. 2015) (finding the failure to include issues in

PCRA petition constitutes waiver).

     Thus, we find Appellant has waived all of his issues on appeal.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/18



                                     -4-
