Opinion
J-S30003-16 No. 1007 EDA 2015
10-18-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. MIKOS MILLER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order March 31, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0002208-2005 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Mikos Miller, appeals from the order entered in the Northampton County Court of Common Pleas, which dismissed his first petition filed under the Post Conviction Relief Act ("PCRA"). We affirm and grant counsel's petition to withdraw.
This Court previously set forth the relevant facts and convoluted procedural history of this case as follows:
We recognize a number of procedural irregularities throughout the history of this case, none of which affects our current jurisdiction. Due to our disposition, we decline to address them.
At approximately 1:00 a.m. on June 6, 2005, Appellant, HyQawnn Wallace, Alex Kulp, and Terrill Gibbs invaded a residence located on 624 Elm Street, Bethlehem, that was
occupied by nine people. The four cohorts were each armed with a shotgun and also were in possession of one handgun. They bound their victims and terrorized them with the weapons, robbed eight people, placed a gun to the head of a thirteen-year-old boy who was mentally challenged, beat [one victim] with a weapon, ransacked the home, and stole numerous items. During the criminal episode, one of the occupants of the house escaped and contacted police, who arrived while the four perpetrators were still at the scene and in the process of placing [one of the victims] in the trunk of a car. Appellant admitted to police that he was caught red-handed and acknowledged that he would be doing prison time for his actions.
On February 9, 2006, a jury convicted Appellant of eight counts of robbery, nine counts of simple assault, and one count each of aggravated assault, burglary, conspiracy to commit robbery, conspiracy to commit burglary, and conspiracy to commit simple assault. The Commonwealth issued notice of intent to seek the mandatory minimum sentence applicable to the crimes due to the fact that they were committed while Appellant was in visible possession of a firearm. At the March 6, 2006 sentencing proceeding, the court had the benefit of a newly-compiled presentence report, to which Appellant had no corrections. Appellant had a criminal history and self-identified as a member of the Bloods gang.
After consideration of the presentence report, facts of the crime, arguments of counsel, Appellant's failure to display remorse, and all the factors outlined in the Sentencing Code, the court imposed its sentence. Appellant received concurrent sentences of five to ten years imprisonment as to each of the eight robbery convictions. That five-to-ten-year sentence was imposed consecutively to an identical term for burglary. For the aggravated assault [conviction], conspiracy to commit burglary, and conspiracy to commit robbery, Appellant also received five to ten year terms of incarceration, which were all consecutive to one another and the other two sentences already imposed. Finally, the court gave a consecutive sentence of six to twelve months imprisonment as to one count of simple assault. No penalty was imposed on the remaining [conspiracy to commit simple assault conviction. The other eight counts
of simple assault merged for purposes of sentencing.] The total term of incarceration amounted to twenty-five and one-half to fifty-one years.
Appellant's post-sentencing rights were explained, but he did not file a post-sentence motion. Instead, he proceeded to file a direct appeal and challenged the discretionary aspects of his sentence. He failed to comply with the dictates of Pa.R.A.P. 2119(f) by placing in his brief a separate statement of reasons relied upon for the appeal of the discretionary aspects of the sentence imposed. Since the Commonwealth objected to the lack of the statement, we were prohibited from addressing the sole contention raised in that appeal and affirmed. Commonwealth v. Miller , 915 A.2d 146 (Pa.Super. 2006) (unpublished memorandum).
Appellant immediately filed a PCRA petition and contended that counsel was ineffective for failing to properly present Appellant's allegation as to the soundness of his sentence. The PCRA court, after conducting a hearing, concluded that counsel was not ineffective because all sentencing challenges were meritless. That PCRA petition was denied by [order docketed on] June 28, 2007. Within one year of our decision in Appellant's direct appeal, Appellant filed a second PCRA petition seeking reinstatement of his appellate rights nunc pro tunc. The PCRA court granted him relief on October 5, 2007.
In the ensuing appeal nunc pro tunc, Appellant's allegations again pertained to the discretionary aspects of his sentence. We concluded that these averments were not preserved since Appellant did not file a post-sentence motion. Commonwealth v. Miller , 963 A.2d 569 (Pa.Super. 2008) (unpublished memorandum). The Supreme Court denied review on January 16, 2009. Commonwealth v. Miller , 964 A.2d 2 (Pa. 2009).
On April [1], 2010, Appellant filed a timely pro se PCRA petition from his nunc pro tunc direct appeal. ... Counsel was appointed and amended that petition by requesting the right to file a post-sentence motion nunc pro tunc. That relief was granted by the court, and the Commonwealth [did] not challenge that ruling. Appellant
filed his post-sentence motion [nunc pro tunc], which was dismissed by an order entered on March 4, 2011. Appellant filed [a nunc pro tunc] appeal to this Court on March 25, 2011 from dismissal of his post-sentence motion.Commonwealth v. Miller , No. 1889 EDA 2011, unpublished memorandum at 1-5 (Pa.Super. filed March 8, 2013) (internal footnote and some internal citations omitted). This Court affirmed Appellant's judgment of sentence on March 8, 2013, concluding Appellant's challenges to the discretionary aspects of his sentence merited no relief. See id. Appellant did not pursue further direct review.
On April 2, 2014, Appellant filed the current counseled PCRA petition, claiming trial counsel was ineffective for: (1) failing to conduct adequate pre-trial investigation to prepare for Appellant's defense; (2) failing to challenge fingerprint evidence presented at trial, or to conduct an independent analysis of the fingerprint evidence; (3) declining to file pre-trial suppression motions challenging the identification of Appellant and Appellant's arrest, or a motion to sever Appellant's case from his co-defendants; and (4) conceding Appellant's guilt during closing arguments. The court held a PCRA hearing on May 2, 2014. On June 17, 2014, the PCRA court denied relief.
In December 2014, Appellant wrote a letter to the Clerk of Courts claiming he had asked PCRA counsel to file an appeal from the denial of PCRA relief, but counsel failed to do so. The court appointed new counsel for Appellant on January 14, 2015. On March 23, 2015, counsel filed a motion to file a nunc pro tunc appeal. In the alternative, counsel asked the court to enter a new "final" order denying PCRA relief from which counsel could timely file an appeal. On March 31, 2015, the court granted Appellant's motion and entered a "final" order re-affirming its June 17, 2014 denial of PCRA relief. Appellant timely filed a notice of appeal on April 14, 2015.
The court did not order Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed a voluntary pro se Rule 1925(b) statement, but his filing constitutes a legal nullity because Appellant is still represented by counsel. See Pa.R.A.P. 3304 (stating where litigant is represented by attorney before court and litigant submits for filing petition, motion, brief or any other type of pleading in matter, it shall not be docketed but forwarded to counsel of record). See also Commonwealth v. Ellis , 534 Pa. 176, 626 A.2d 1137 (1993) (holding there is no constitutional right to hybrid representation at trial or on appeal; this Court will not review pro se documents filed by represented appellants); Commonwealth v. Nischan , 928 A.2d 349 (Pa.Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007) (explaining pro se filings submitted by counseled defendants are legal nullities). On August 3, 2015, Appellant filed a pro se motion seeking to amend his April 2, 2014 PCRA petition to add a challenge to the legality of his sentence under Alleyne v. United States , ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and its progeny. The court entered an order on January 22, 2016, stating it would not entertain the pro se filing because Appellant was represented by counsel and not entitled to hybrid representation, and an appeal was pending.
Preliminarily, appellate counsel has filed a Turner / Finley brief and motion to withdraw as counsel. Before counsel can be permitted to withdraw from representing a petitioner under the PCRA, Pennsylvania law requires counsel to file a "no-merit" brief or letter pursuant to Turner and Finley. Commonwealth v. Karanicolas , 836 A.2d 940 (Pa.Super. 2003).
Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) (en banc).
[C]ounsel must...submit a "no-merit" letter to the [PCRA] court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.Commonwealth v. Wrecks , 931 A.2d 717, 721 (Pa.Super. 2007). Counsel must also send to the petitioner a copy of the "no-merit" letter or brief and motion to withdraw and advise petitioner of his right to proceed pro se or with privately retained counsel. Id. "Substantial compliance with these requirements will satisfy the criteria." Karanicolas , supra at 947.
Instantly, appellate counsel filed a motion to withdraw as counsel and a Turner / Finley brief detailing the nature of counsel's review and explaining why Appellant's issues lack merit. Counsel's brief also demonstrates he reviewed the certified record and found no meritorious issues for appeal. Counsel notified Appellant of counsel's request to withdraw and advised Appellant regarding his rights. Thus, counsel substantially complied with the Turner / Finley requirements. See Wrecks , supra ; Karanicolas , supra.
Appellant raises the following issues in the brief filed on appeal:
Appellant filed a pro se response to counsel's Turner / Finley brief.
DID [THE] PCRA COURT ERR IN DISMISSING CLAIMS RAISED IN [APPELLANT'S] PCRA PETITION DATED APRIL 2, 2014?
IS [APPELLANT] ENTITLED TO A REMAND FOR SENTENCING BASED ON THE PENNSYLVANIA SUPREME
COURT'S DECISION IN COMMONWEALTH V. HOPKINS [, ___ Pa. ___, 117 A.3d 247 (2015)]?( Turner / Finley Brief at 5).
As a second prefatory matter, the timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Turner , 73 A.3d 1283 (Pa.Super. 2013), appeal denied, 625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S.A. § 9545(b)(3). Pennsylvania law makes clear that a PCRA petition brought after a nunc pro tunc direct appeal is considered a first PCRA petition, and the one-year time clock will not begin to run until the nunc pro tunc direct appeal renders the appellant's judgment of sentence final. Turner , supra at 1286; Commonwealth v. Fowler , 930 A.2d 586, 591 (Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008); Commonwealth v. O'Bidos , 849 A.2d 243, 252 n.3 (Pa.Super. 2004), appeal denied, 580 Pa. 696, 860 A.2d 123 (2004).
Instantly, the court reinstated Appellant's post-sentence motion rights nunc pro tunc on October 29, 2010, without objection from the Commonwealth. Appellant subsequently filed timely post-sentence motions nunc pro tunc, which the court denied by final order entered March 4, 2011. Appellant timely filed a direct appeal nunc pro tunc on March 25, 2011, and this Court affirmed the judgment of sentence on March 8, 2013. Appellant did not pursue further direct review. Thus, Appellant's judgment of sentence became final on April 7, 2013, upon expiration of time to file a petition for allowance of appeal with our Supreme Court. See Pa.R.A.P. 1113(a) (stating except as otherwise prescribed by this rule, petition for allowance of appeal with Pennsylvania Supreme Court shall be filed within 30 days after entry of order or judgment sought to be reviewed). Appellant filed the current PCRA petition on April 2, 2014, which is timely. See 42 Pa.C.S.A. § 9545(b)(1). This petition constitutes Appellant's "first" PCRA petition following the date Appellant's judgment of sentence became final. See Turner , supra ; Fowler , supra ; O'Bidos , supra.
Our standard of review of the denial of a PCRA petition is limited to examining whether the record evidence supports the court's determination and whether the court's decision is free of legal error. Commonwealth v. Ford , 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008). This Court grants great deference to findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction court's credibility determination, it is binding on the appellate court. Commonwealth v. Knighten , 742 A.2d 679, 682 (Pa.Super. 1999), appeal denied, 563 Pa. 659, 759 A.2d 383 (2000).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Stephen G. Baratta, we conclude Appellant's first issue merits no relief. The PCRA court opinion comprehensively discusses and properly disposes of that question. ( See PCRA Court Opinion, filed March 31, 2015, at 6-15) (finding: trial counsel testified at PCRA hearing that contesting Appellant's identification and participation was unwise, due to overwhelming evidence that Appellant was at scene of crimes; counsel testified he discussed trial strategy with Appellant to present defense as "drug deal gone bad," and Appellant agreed with this strategy; Appellant offered no alibi witnesses; court credited counsel's testimony; Appellant failed to show counsel lacked reasonable basis in pursuing chosen strategy, so this ineffectiveness claim fails; additionally, counsel testified trial strategy was consistent with co-defendant's strategy, so motion to sever was not necessary; counsel explained any pre-trial motions concerning identification would have been unsuccessful based on amount of evidence against Appellant and agreed-upon trial strategy; counsel's testimony was credible; Appellant cannot show prejudice to support ineffectiveness claims concerning counsel's failure to file pre-trial motions; Appellant also claims counsel failed to interview key Commonwealth witnesses and failed to test fingerprint evidence linking Appellant to crimes; counsel testified Appellant was involved in every step of decision-making process, and Appellant did not ask counsel to interview certain witnesses or to test fingerprint evidence independently because Appellant agreed to pursue "drug deal gone bad" trial strategy; Appellant did not indicate how interviews of Commonwealth's witnesses would have changed outcome of trial or produce any alibi witnesses for counsel to interview; counsel's decision not to test fingerprint evidence was reasonable trial strategy, which Appellant agreed to; this ineffectiveness claim fails). Therefore, we affirm Appellant's first issue on the basis of the PCRA court's opinion.
The PCRA court refers to the current April 2, 2014 petition as Appellant's third PCRA petition. We have already decided this petition constitutes Appellant's first PCRA petition for timeliness purposes, given the nunc pro tunc relief granted in this case.
In his second issue, Appellant argues the trial court imposed mandatory minimum sentences in this case pursuant to 42 Pa.C.S.A. § 9712 (stating any person who is convicted of crime of violence shall be sentenced to mandatory minimum five years' imprisonment if, during commission of offense, person visibly possessed firearm that placed victim in reasonable fear of death or serious bodily injury). Appellant claims the jury did not expressly find beyond a reasonable doubt that Appellant visibly possessed a firearm during commission of the crimes, so imposition of the mandatory minimum sentences violates Alleyne , supra (holding any fact increasing mandatory minimum sentence for crime is considered element of crime to be submitted to fact-finder and found beyond reasonable doubt). Appellant insists the mandatory minimum sentences imposed in his case are unconstitutional in light of Alleyne and its progeny. Appellant concludes he is serving an illegal sentence and entitled to resentencing without imposition of the mandatory minimum sentences. We disagree.
Although Appellant cites Hopkins , supra in his statement of questions presented, that case dealt with a mandatory minimum sentence under 18 Pa.C.S.A. § 6317 (imposing mandatory minimum sentence of two years' imprisonment if defendant committed drug delivery in school zone). Section 6317 is inapplicable in this case.
Preliminarily, we observe that Appellant raised his Alleyne challenge for the first time in his August 3, 2015 pro se motion to amend his PCRA petition. Appellant's pro se filing constitutes a legal nullity because he was represented by counsel when Appellant filed it. See Pa.R.A.P. 3304; Ellis , supra ; Nischan , supra. Additionally, Appellant's appeal from the denial of PCRA relief was already pending when he filed this motion. See Commonwealth v. Lark , 560 Pa. 487, 746 A.2d 585 (2000) (holding that when appellant's PCRA appeal is pending before court, subsequent PCRA petition cannot be filed until resolution of review of pending PCRA petition by highest state court in which review is sought, or upon expiration of time for seeking such review).
Recently in Commonwealth v. Washington , ___ Pa. ___, 142 A.3d 810 (2016), the Pennsylvania Supreme Court resolved the issue of whether a petitioner could raise an Alleyne challenge to the legality of his sentence involving a mandatory minimum sentence in a timely PCRA petition, where the petitioner's judgment of sentence became final prior to the Alleyne decision. The Washington Court stated:
[A] new rule of law does not automatically render final, pre-existing sentences illegal. A finding of illegality concerning such sentences may be premised on such a rule only to the degree that the new rule applies retrospectively. In other words, if the rule simply does not pertain to a particular conviction or sentence, it cannot operate to render that conviction or sentence illegal. ...Id. at ___, 142 A.3d at 814-15 (emphasis added). See also id. at ___, 142 A.3d at 815 (stating: "[I]f a new constitutional rule does not apply, it cannot render an otherwise final sentence illegal"). The Washington Court applied the retroactivity analysis delineated in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and determined the new constitutional rule announced in Alleyne is not a substantive or watershed procedural rule that would warrant retroactive application. Washington , supra at ___, 142 A.3d at 818-19. The Court held the defendant was not entitled to retroactive application of Alleyne because his judgment of sentence became final before Alleyne was decided. Id.
* * *
[N]ew constitutional procedural rules generally pertain to future cases and matters that are pending on direct review at the time of the rule's announcement.
Instantly, the court sentenced Appellant on March 6, 2006, imposing mandatory minimum sentences for some of Appellant's offenses, pursuant to Section 9712. Due to the grant of nunc pro tunc relief multiple times throughout the history of this case, Appellant's judgment of sentence became final on April 7, 2013. The United States Supreme Court decided Alleyne on June 17, 2013, more than two months after Appellant's judgment of sentence was already final. See Alleyne , supra. Consequently, Appellant is not entitled to relief under Alleyne at this juncture. See Washington , supra (holding Alleyne does not apply retroactively on collateral review to challenge to mandatory minimum sentence as "illegal"). Thus, Appellant's second issue merits no relief. Following our independent examination of the record, we conclude the appeal is frivolous and affirm; we grant counsel's petition to withdraw.
Our disposition addresses all issues presented in Appellant's pro se response to appellate counsel's Turner / Finley brief, so we need not further discuss any of those claims. To the extent Appellant complains PCRA counsel was ineffective for failing to preserve the Alleyne challenge in Appellant's April 2, 2014 PCRA petition, that claim is meritless in light of our disposition. Additionally, Appellant filed an application for appointment of new counsel for this appeal. We deny Appellant's request.
Order affirmed; counsel's petition to withdraw is granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/18/2016
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