Opinion
J-S52002-17 No. 1997 MDA 2016
08-30-2017
COMMONWEALTH OF PENNSYLVANIA v. RONDELLE CHRISTAIN MIDDLETON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 23, 2016 in the Court of Common Pleas of Dauphin County, Criminal Division, No(s): CP-22-CR-0000012-2014 BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Rondelle Christain Middleton ("Middleton") appeals from the Order denying his first Petition filed pursuant to the Post Conviction Relief Act. We affirm.
See Pa.C.S.A. §§ 9541-9546.
In its Opinion, the PCRA court set forth the relevant factual and procedural background, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 11/23/16, at 1-2 (unnumbered).
The PCRA court denied Middleton's Petition. Middleton thereafter filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
On appeal, Middleton raises the following issues for our review:
1. Did the trial court err in denying [Middleton's] PCRA [Petition] when:
Brief for Appellant at 4 (some capitalization omitted, issues renumbered, footnote added).a. Appellate counsel did not specifically challenge the Terry frisk in the court[-]ordered Pa.R.A.P. 1925(b) Concise Statement[,] and only raised a general challenge to the trial court's denial of his suppression Motion; and
b. Appellate counsel failed to raise [] Middleton's sentencing issues on appeal[?]
Terry v. Ohio , 88 S. Ct. 1868 (1968)
As noted by the PCRA court, Paul Muller, Esquire ("Attorney Muller"), of the Dauphin County Public Defender's Office, represented Middleton at the non-jury criminal trial, and filed a Pa.R.A.P. 1925(b) Concise Statement on his behalf. A different public defender was thereafter appointed to represent Middleton for the remainder of his direct appeal. However, based on our review, it appears that each of Middleton's ineffectiveness claims pertains to Attorney Muller only. --------
In reviewing the denial of a PCRA Petition, we examine whether the PCRA court's determination "is supported by the record and free of legal error." Commonwealth v. Rainey , 928 A.2d 215, 223 (Pa. 2007) (citations omitted).
In his first issue, Middleton contends that "trial and appellate counsel were ineffective in failing to present testimony to preserve the issue of challenging the Terry frisk on appeal." Brief for Appellant at 10. Middleton concedes that, although Attorney Muller raised the issue on direct appeal, the issue was deemed waived because he had failed to raise the issue before the trial court. Id. Middleton points out that the issue was further waived because Attorney Muller had failed to specifically raise the issue in Middleton's Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal. Id. at 11; see also id. (wherein Middleton explains that Attorney Muller merely raised a general challenge to the trial court's denial of his suppression Motion).
In its Opinion, the PCRA court addressed Middleton's first issue, set forth the relevant law, and determined that the issue lacks merit. See PCRA Court Opinion, 11/23/16, at 2-5 (unnumbered). We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Middleton's first issue. See id.
In his second issue, Middleton contends that Attorney Muller was further ineffective because he "failed to appeal the initial granting and the subsequent denial of [Middleton's] Motion to modify sentence." Brief for Appellant at 12. Middleton explains that the trial court initially granted his Motion, and permitted the sentences for counts one and two to run concurrently, but then reinstated the original sentence after the Commonwealth filed a Motion for reconsideration. Id. Middleton claims that, "[a]lthough the mandatory sentence was not imposed in this case, [Middleton] was sentenced above the standard range upon the Commonwealth's erroneous assertion that this was [Middleton's] fifth (5th) drug trafficking conviction." Id. Middleton maintains that he had only two prior drug trafficking convictions, and contends that Attorney Muller was ineffective for failing to preserve and raise this issue on appeal. Id.
In its Opinion, the PCRA court addressed Middleton's second issue, and determined that the issue lacks merit. See PCRA Court Opinion, 11/23/16, at 5-6 (unnumbered). We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Middleton's second issue. See id.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/30/2017
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