Opinion
J-S15014-18 No. 1594 EDA 2017
06-26-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. KALVIN BISHOP Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered April 24, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0011808-2012 BEFORE: STABILE, DUBOW, JJ., and FORD ELLIOTT, P.J.E. MEMORANDUM BY STABILE, J.:
Appellant, Kalvin Bishop, appeals pro se from the April 24, 2017 order dismissing his petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On December 3, 2013, Appellant pled guilty to third-degree murder, aggravated assault, and possession of an instrument of crime. The trial court imposed the negotiated sentence of 22½ to 45 years of incarceration. Appellant did not file a direct appeal. On November 18, 2014, Appellant filed a timely pro se PCRA petition, his first. He filed an amended pro se petition on December 15, 2015. On December 6, 2016, appointed counsel filed a no merit letter and petition to withdraw pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc). On March 6, 2017, the PCRA court filed, pursuant to Pa.R.Crim.P. 907, its notice of intent to dismiss Appellant's petition without a hearing. On April 24, 2017, the PCRA court entered the order on appeal, in which it dismissed Appellant's petition and permitted appointed counsel to withdraw. Appellant filed this timely pro se appeal on April 30, 2017.
Appellant presents seven questions:
I. Was the Appellant deprived of his constitutionally protected right(s) to the effective assistance of counsel?
II. Was the Appellant's plea of guilt a knowingly, voluntarily, and intelligently made decision?
III. Was trial counsel ineffective for failing to object to the trial judge's unconstitutional participation and unfair pre-judged comments uttered during the Appellant's guilty plea proceedings which collective [sic] coerced an involuntary guilty plea?
IV. Was the Appellant deprived of his constitutionally protected right to Due Process and effective assistance of counsel due to counsel's failure to move to withdraw his plea and to file a direct appeal, despite Appellant's request to counsel to do so?
V. Whether Appellant was denied Due Process and effective assistance of counsel on his first PCRA petition, when PCRA counsel failed to properly investigate, develop, prepare, and file an amended PCRA petition to include questions I-IV cited above?
VI. Whether Appellant was denied Due Process and effective assistance of counsel on his first PCRA petition, when counsel failed to properly investigate, develop, and file an amended PCRA petition challenging Appellant's two mandatory sentences as being unconstitutional and void ab initio?
VII. Did the PCRA court deny the Appellant an adequate [Pa.R.Crim.P. 907] notice in violation Appellant's right to Due Process and equal protection of law, before granting counsel's no merit letter?Appellant's Brief at vi.
We review the PCRA court's order to determine whether the record supports its findings of fact and whether it committed an error of law. Commonwealth v. Reyes-Rodriguez , 111 A.3d 775, 779 (Pa. Super. 2015), appeal denied , 123 A.3d 331 (Pa. 2015). We conduct de novo review of the PCRA court's conclusions of law. Id.
Appellant's first four arguments challenges plea counsel's effectiveness. To prevail on this claim, a PCRA petitioner must plead and prove that (1) the underlying issue is of arguable merit; (2) counsel had no reasonable strategic basis for the action or inaction; and (3) counsel's mistake prejudiced the petitioner. Commonwealth v. Chmiel , 30 A.3d 1111, 1127 (Pa 2001). As to the second prong, we do not consider whether there were better strategic alternatives; rather, we consider whether counsel had any reasonable basis for the disputed action or inaction. Id. For the third prong, prejudice, we examine whether the outcome of the proceeding would have been different but for counsel's error. Id. We presume counsel's effectiveness, and the petitioner has the burden of proving otherwise. Commonwealth v. Brown , 767 A.2d 576, 581 (Pa. Super. 2001).
We have reviewed the PCRA court's opinion, the record, the parties' briefs, and the applicable law. We conclude the PCRA court's May 17, 2017 opinion accurately addresses Appellant's first four issues asserting plea counsel's ineffectiveness. We therefore adopt the PCRA court's opinion in support of our rejection of those arguments.
Appellant's fifth and sixth arguments challenge PCRA counsel's effectiveness. A PCRA petitioner must raise challenges to PCRA counsel's effectiveness prior to appeal. Commonwealth v. Ford , 44 A.3d 1190, 1197 (Pa. Super. 2012) (citing Commonwealth v Pitts , 981 A.2d 875 (Pa. 2009)). We observe that Appellant's pro se response to the PCRA court's Rule 907 notice unartfully addresses PCRA counsel's stewardship. Response to Rule 907 Notice, 3/16/17, at 4-5. In essence, Appellant argues that PCRA counsel was ineffective for filing a no-merit letter instead of developing issues I-IV above. Given our agreement with the PCRA court's analysis of those issues, we cannot conclude that PCRA counsel was ineffective for failing to develop them. Appellant's response to the Rule 907 notice does not address PCRA counsel's effectiveness for failing to challenge the mandatory minimum sentences Appellant received. Pursuant to Ford , therefore, that issue is waived. In any event, the record does not reflect that the trial court imposed a mandatory minimum sentence.
Appellant's final issue is that the PCRA court's Rule 907 notice was not sufficiently specific. Appellant has waived this issue, because he is raising it for the first time on appeal. Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Regardless, our review of the record reveals that the trial court attached counsel's no-merit letter to its Rule 907 notice and filed a detailed opinion documenting its own review of the record. This approach is sufficient pursuant to Commonwealth v. Rykard , 55 A.3d 1177, 1186 (Pa. Super. 2012). We therefore reject Appellant's final argument.
In summary, we have rejected Appellant's first four arguments based on the PCRA court's opinion. Appellant has failed to preserve his fifth and sixth issues. His seventh argument lacks merit. We therefore affirm the order dismissing his petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/26/18
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