Opinion
J-S65036-17 No. 3857 EDA 2016
12-12-2017
COMMONWEALTH OF PENNSYLVANIA v. MICHAEL DENNIS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 28, 2016 in the Court of Common Pleas of Montgomery County, Criminal Division, No(s): CP-46-CR-0004749-2011 BEFORE: OLSON, OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Michael Dennis ("Dennis") appeals from the Order denying his Petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
The PCRA court summarized the relevant history underlying the instant appeal as follows:
[O]n January 10, 2013, a jury convicted Dennis of six counts each of possession with intent to deliver and simple possession, four counts of criminal use of communications facility and one count each of corrupt organizations, dealing in proceeds of unlawful activities and criminal conspiracy. These convictions arose out of an investigation that spanned from April of 2011, through May of 2011, conducted by the Montgomery County Detective Bureau, along with the Tredyffrin Township Police Department. The investigation included a wiretap and video surveillance, and uncovered a large and sophisticated cocaine distribution ring. The drug ring was centrally operated out of A & L Head's Up Hair Studio at 932 Upper Gulph Road, Tredyffrin Township, Chester County,
Pennsylvania. Dennis was convicted for his major role in the drug distribution organization.PCRA Court Opinion, 2/17/17, at 1-2.
On April 1, 2013, Dennis was sentenced to an aggregate term of 21 to 42 years' imprisonment, which was based[,] in part, on a mandatory minimum sentencing scheme. On direct appeal, our Superior Court vacated the judgment of sentence and remanded for re-sentencing[,] because the mandatory minimum scheme had been held to be unconstitutional under Alleyne v. United States , 133 S.Ct. 2151 (U.S. 2013). In all other respects, the judgment of sentence was affirmed.
On November 20, 2014, [the trial court] resentenced Dennis to an aggregate term of 18 to 36 years' imprisonment. A post-sentence [M]otion was not filed. Dennis appealed to our Superior Court, appealing the discretionary aspects of his sentence. The Superior Court found this issue [to be] waived[,] because it was not preserved with a post-sentence motion. See [] Commonwealth v. Dennis , 3542 EDA 2014 p. 5 (May 6, 2016) (unpublished). ... No further review was sought.
See 35 P.S. § 780-113(a)(30), (16); 18 Pa.C.S.A. §§ 7512, 5111(a), 911, and 903(a). --------
The PCRA court appointed the Office of the Public Defender ("OPD") to represent Dennis. However, due to a conflict, the attorney from the OPD withdrew, and the PCRA court appointed Joseph Hylan, Esquire ("PCRA counsel"), to represent Dennis. PCRA counsel filed a Petition to withdraw from representation, pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc). The PCRA Court issued a Notice pursuant to Pa.R.Crim.P. 907 notifying Dennis of its intention to dismiss Dennis's PCRA Petition without a hearing. Dennis filed a pro se Response to the Notice, claiming that his sentencing counsel rendered ineffective assistance by not preserving a challenge to the discretionary aspects of sentencing for review during direct appeal. Dennis did not claim that his PCRA counsel rendered ineffective assistance.
On November 28, 2016, the PCRA court denied Dennis's PCRA Petition. Dennis, represented by private counsel, timely filed a Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Dennis presents the following claim for our review: "Did the PCRA court err by failing to review one of [Dennis's] stated claims and allowing counsel to withdraw after he had previously failed to address the claim in his Finley letter?" Brief for Appellant at 4.
Dennis claims that the PCRA court improperly permitted his PCRA counsel to withdraw, where the court and PCRA counsel had failed to address one of his claims. Id. at 6. Dennis asserts that his PCRA counsel failed to meet the standards required to withdraw from representation, and the PCRA court improperly failed to conduct its own independent review of the case. Id. at 8. Dennis directs our attention to an "affidavit" secured from his brother, a co-defendant, after trial. Id. According to Dennis, his brother acknowledged that Dennis had no knowledge of or involvement with the drugs found in the apartment next to the barbershop. Id. This claim was not addressed in PCRA counsel's Finley letter. Id. Dennis challenges the PCRA court's determination that the "affidavit" is not exculpatory, because "this is the kind of determination that should only be made after counsel's advocacy and after a more thorough, independent review before a petition is dismissed." Id.
Dennis further directs our attention to the evidence of record, which, he argues, is not overwhelming. Id. at 9. Specifically, Dennis states that only six of the 300 intercepted telephone calls involved him discussing "innocuous things" with his brother; he was only seen in or near the barbershop for a total of less than thirty minutes; and he was not seen making "verifiable" sales. Id. Under these circumstances, Dennis claims, the "affidavit" from his brother could have affected the verdict. Id.
"In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Montalvo , 114 A.3d 401, 409 (Pa. 2015) (citation and internal quotation marks omitted).
In its Opinion, the PCRA court addressed Dennis's claim and concluded that it lacks merit. See PCRA Court Opinion, 2/17/17, at 5-13. We agree with the sound reasoning of the PCRA court, as set forth in its Opinion, and affirm on this basis as to Dennis's claim. See id.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/12/2017
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