J-S64018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSE L. FIGUEROA-NAVAREZ                   :
                                               :
                       Appellant               :   No. 686 EDA 2018

                 Appeal from the PCRA Order January 17, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0003208-2015,
              CP-23-CR-0006348-2015, CP-23-CR-0006691-2015


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.:                            FILED DECEMBER 13, 2018

       Appellant, Jose L. Figueroa-Navarez, appeals pro se from the order

entered on January 17, 2018 in the Criminal Division of the Court of Common

Pleas of Delaware County that dismissed, without a hearing, his first petition

filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546.1 We affirm.

       The PCRA court aptly summarized the factual and procedural history of

this case as follows:

       The record in the instant case establishes that, on July 21, 2016,
       Appellant entered into an open guilty plea before the [trial court
____________________________________________


1We note that the PCRA court order dismissing Appellant’s PCRA petition listed
three trial court docket numbers. On February 8, 2018, Appellant filed three
pro se notices of appeal, each of which contained all three trial court docket
numbers. On May 4, 2018, this Court dismissed as duplicative the appeals at
docket numbers 692 EDA 2018 and 693 EDA 2018.
J-S64018-18


     at] three separate docket numbers. Regarding docket number
     6348-2015, Appellant pled to Count 2 [p]ossession with [i]ntent
     to [d]istribute [c]ontrolled [s]ubstance ([c]ocaine - more than 73
     grams). On docket number 3208-2015, Appellant pled to Count
     3 [p]ossession with [i]ntent to [d]eliver (heroin); Count 4
     [p]ossession with [i]ntent to [d]eliver (cocaine); Count 1
     [p]ossession of a [c]ontrolled [s]ubstance; Count 2 [p]ossession
     of a [c]ontrolled [s]ubstance; Count 5 [p]ossession of [d]rug
     [p]araphernalia; and, Count 11 [d]riving with a [s]uspended
     [l]icense. On docket number 6691-2015, Appellant pled guilty to
     Count 1 [f]leeing or [e]luding [p]olice [o]fficer; Count 4
     [r]ecklessly [e]ndangering [a]nother [p]erson; Count 9
     [p]ossession of a [c]ontrolled [s]ubstance; and Count 19 [f]ailure
     to [n]otify [l]aw [e]nforcement.

     Counsel moved for immediate sentenc[ing] and [the trial court
     imposed its sentence on the same day]. Prior to imposition of
     sentence, defense counsel addressed the [trial c]ourt and
     requested that the court take no position regarding Appellant’s
     RRRI eligibility and leave the decision of eligibility to the
     Department of Corrections. Notes of Testimony, 7/21/16, at 24-
     25. On docket number 6348-2015 Appellant was sentenced to
     sixty (60) to one hundred twenty (120) months[’] state
     incarceration, $120[.00] in costs, $176[.00] lab fee, forfeiture of
     $986[.00] and two cell phones, and credit for time served from
     [September 29, 2015 through July 21, 2016]. Additionally, it was
     noted that the [trial c]ourt recommended Appellant serve his time
     at SCI Chester, that he was not boot camp eligible, and that
     neither the [trial c]ourt nor the Commonwealth took a position on
     Appellant’s RRRI eligibility.      On docket number 3208-2015,
     Appellant [received] an aggregate term of twenty-four (24) to
     forty-eight (48) months[’] incarceration and three years of
     probation. [Appellant’s term of incarceration at docket number
     3208-2015 was to run consecutively to his sentence at docket
     number 6348-2015.] It was noted on [docket number 3208-2015
     ] as well that neither the [trial c]ourt nor the Commonwealth took
     a position on RRRI eligibility. Finally, on docket number 6691-
     2015, Appellant was sentenced to an aggregate term of twelve
     (12) to twenty-four (24) months[’] incarceration and one year
     probation, [concurrent to his other sentences.] The sentencing
     sheet for this docket number reflected once again that the [trial
     c]ourt did not take a position on RRRI eligibility.




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     Appellant was advised of his [p]ost-[s]entence [r]ights by
     counsel, initialed and signed three [p]ost-[s]entence [r]ights
     forms, and was [] again advised by the [trial c]ourt of his post-
     sentence [r]ights. Specifically, the [trial c]ourt explained that
     Appellant had ten days to file a [m]otion for [r]econsideration in
     writing and [30] days to appeal [his conviction or sentence].
     Appellant did not file a [m]otion for [r]econsideration or a [direct]
     appeal.

     On February 24, 2017, Appellant filed a pro se [PCRA p]etition
     alleging [that] counsel was ineffective in failing to request the
     [trial c]ourt to recommend RRRI eligibility. The [PCRA court]
     appointed [counsel] and entered an [o]rder requiring counsel to
     file an [a]mended PCRA petition or [n]o [m]erit letter pursuant to
     [Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and]
     Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998). On
     July 14, 2017, counsel submitted a [n]o [m]erit letter as well as
     an [a]pplication for [w]ithdrawal of [a]ppearance. Counsel’s [n]o
     [m]erit letter addressed two issues: 1) whether or not trial
     counsel was ineffective in failing to request that the [trial c]ourt
     recommend Appellant for RRRI eligibility and 2) whether or not
     trial counsel was ineffective in failing to file post-sentence
     motions. Th[e] second issue, although not included in Appellant’s
     pro se PCRA, was raised by counsel upon Appellant’s request. On
     August 18, 2017, the [PCRA c]ourt granted counsel’s application
     to withdraw and filed a [n]otice of [i]ntent to [d]ismiss the PCRA
     [p]etition without a [h]earing in [20 d]ays.

     On August 30, 2017, Appellant filed a pro se [r]esponse in
     [o]pposition to the [court’s] [n]otice of [i]ntent to [d]ismiss
     arguing that the [PCRA court’s notice] only addressed one of
     [Appellant’s] two PCRA issues[, i.e. the issue regarding RRRI
     eligibility]. Appellant requested additional time to amend his
     PCRA [petition] so that the [c]ourt [could] consider both issues.
     Out of an abundance of caution, th[e PCRA c]ourt entered an
     [o]rder on October 26, 2017 permitting [Appellant] to file an
     [a]mended PCRA [petition] within [21] days. The [PCRA c]ourt
     [undertook this course of action] even though it had reviewed
     both issues raised in the counseled “no merit” letter and took both
     issues into account when issuing its [n]otice of [i]ntent to
     [d]ismiss. On November 17, 2017, Appellant filed his [a]mended
     PCRA [petition] raising the issue of ineffective assistance of
     counsel for failure to file post-sentence motions.


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      The [PCRA c]ourt reviewed [Appellant’s a]mended PCRA [petition,
      counsel’s no merit l]etter, [Appellant’s] initial PCRA [petition], and
      the record as a whole and then filed its second [n]otice of [i]ntent
      to [d]ismiss on December 28, 2017. In January [2018,] the
      matter was administratively transferred to [a new trial judge]. On
      January 10, 2018, Appellant filed a pro se [o]bjection to the
      [December 28, 2017] [n]otice of [i]ntent to [d]ismiss raising the
      same issues as [the] [a]mended PCRA [petition]. On January 18,
      2018, th[e PCRA c]ourt issued an [o]rder denying Appellant’s
      [petition]. On February 8, 2018, Appellant filed a [n]otice of
      [a]ppeal [from the January 18, 2018 order.] On March 8, 2018,
      [the PCRA c]ourt issued an [o]rder requiring Appellant to file a
      [c]oncise [s]tatement of [errors] [c]omplained of on [a]ppeal
      pursuant to Pa.R.A.P. 1925[. Appellant complied on] March 19,
      2018[.]

PCRA Court Opinion, 4/4/18, at 1-4 (unpaginated).

      In his brief to this Court, Appellant raises the following question for our

review:

          Whether the [PCRA] court committed legal error in denying
          [A]ppellant[’]s petition for post-conviction collateral relief,
          without a hearing to properly fulfill [its] fact finding duty
          regarding [A]ppellant[’]s claim of ineffective assistance of
          counsel, for [A]ppellant[’]s defense counsel’s failure to file a
          timely requested post-sentence motion to modify sentence.

Appellant’s Brief at 4.

      We review an order denying collateral relief under the PCRA to

determine whether evidence of record supports the findings of the PCRA court

and whether its legal conclusions are free from error. Commonwealth v.

Mitchell, 105 A.3d 1257, 1265 (Pa. 2014).         “The PCRA court's credibility

determinations, when supported by the record, are binding on this Court;

however, we apply a de novo standard of review to the PCRA court's legal




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conclusions.” Id., quoting Commonwealth v. Roney, 79 A.3d 595, 603 (Pa.

2013).

      In this case, the PCRA court dismissed Appellant's petition without a

hearing. There is no absolute right to an evidentiary hearing. See

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On

appeal, we examine the issues raised in light of the record “to determine

whether the PCRA court erred in concluding that there were no genuine issues

of material fact and in denying relief without an evidentiary hearing.” Id.

      Appellant’s amended petition filed on November 17, 2017 requested

nunc pro tunc reinstatement of Appellant’s right to file post-sentence motions.

Specifically, the amended petition alleged that trial counsel was ineffective for

failing to file a requested post-sentence motion in a timely manner. Appellant

further alleged that trial counsel’s omission deprived Appellant of his right to

challenge certain discretionary aspects of his sentence on direct appeal.

Analogizing counsel’s failure to file a requested post-sentence motion to the

failure to file a requested direct appeal, Appellant claims that counsel’s

omission in this case qualifies as per se ineffectiveness. Accordingly, Appellant

maintains that he was entitled to an evidentiary hearing in order to prove that

he asked counsel to submit a post-sentence motion.          No relief is due on

Appellant’s claim as he has failed to demonstrate that his petition raised a

genuine issue of material fact that required an evidentiary hearing.

      Under Pennsylvania law, there are few instances where counsel’s acts

or omissions constitute per se ineffectiveness.      These include:    counsel’s

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failure to file a direct appeal when requested to do so by a client

(Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999)); counsel’s failure

to file a timely Rule 1925(b) statement when ordered to do so by a court

(Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005); Commonwealth v.

Brown, 145 A.3d 184, 186 (Pa. Super. 2016)); and, counsel’s failure to file a

petition seeking allowance of appeal with the Pennsylvania Supreme Court

when requested to do so by a client (Commonwealth v. Liebel, 825 A.2d

630 (Pa. 2003); Commonwealth v. Reeves, 923 A.2d 1119, 1129 (Pa.

2007)). Trial counsel’s failure to file a post-sentence motion, even if requested

to do so, is not per se ineffectiveness. See Reeves, 923 A.2d at 1129-1131

(post-conviction petitioner required to establish actual prejudice where

counsel’s alleged deficiency stemmed from failure to move for reconsideration

of sentence); Commonwealth v. Liston, 977 A.2d 1089, 1092 (Pa. 2009)

(clarifying that Supreme Court        held in Reaves that failure to         file

post-sentence motions “does not fall within the limited ambit of situations

where a defendant alleging ineffective assistance of counsel need not prove

prejudice to obtain relief”).

      Instead, a PCRA petitioner alleging trial counsel’s ineffectiveness for

failure to file a post-sentence motion must satisfy the three-pronged test for

ineffectiveness. Reeves, supra. Thus, a PCRA petitioner bears the burden

of pleading and proving that trial counsel’s failure to file a post-sentence

motion prejudiced him; namely, that had counsel filed the post-sentence

motions, the sentencing court would have granted them. See Liston, supra.

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J-S64018-18



Appellant did not meet that burden, nor did he raise a genuine issue on this

claim.

      Appellant’s submissions before the PCRA court do not address why the

trial court would have granted a motion to reconsider Appellant’s sentence.

Although Appellant expressed displeasure with the consecutive nature of his

sentences in his objections to the PCRA court’s Rule 907 notice, he offered no

reasons for why the trial court would have granted relief on this basis. The

consecutive nature of a sentencing scheme is rarely the basis for finding a

substantial question that the trial court acted outside sentencing norms or

contrary to the Sentencing Code, let alone abused its discretion in fixing a

particular punishment.     See Commonwealth v. Moury, 992 A.2d 162,

171-172 (Pa. Super. 2010) (sentencing court has discretion to impose

sentences consecutively or concurrently and challenges to this exercise of

discretion   do   not   raise   a   substantial   question   except   in   extreme

circumstances).    Appellant failed to explain how his consecutive sentences

supported reconsideration of his punishment.          In the absence of such a

showing, there was no basis on which to conclude that counsel’s conduct

caused any prejudice. Thus, the PCRA court correctly dismissed Appellant’s

petition without an evidentiary hearing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/18




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