Opinion
J-S73006-18 No. 98 WDA 2018
03-25-2019
COMMONWEALTH OF PENNSYLVANIA Appellee v. WILLIAM HUGHES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 6, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009919-2012 BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, William Hughes, appeals from the new judgment of sentence entered in the Allegheny County Court of Common Pleas, following the partial grant of relief on Appellant's first and timely-filed petition under the Post-Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9542-9546. We affirm in part and dismiss in part.
In its September 20, 2017 memorandum order, the PCRA court set forth the relevant facts and procedural history of this case as follows:
Following a non-jury trial held on March 7, 2013, [Appellant] was convicted of three (3) counts of [a]ggravated [a]ssault, one (1) count of [c]riminal [c]onspiracy and one (1) count of [c]riminal [m]ischief. On July 16, 2013, [Appellant] was sentenced to an aggregate sentence of imprisonment of 7½-15 years, followed by a ten (10) year term of probation. [Appellant]'s judgment of sentence was affirmed by the Superior Court of Pennsylvania on September 24, 2015. ... A [p]etition for [a]llowance of [a]ppeal was filed on [Monday,] October 26, 2015. On March 8, 2016, the
Supreme Court of Pennsylvania denied the petition. It does not appear that [Appellant] sought a writ of certiorari with the United States Supreme Court. ...(PCRA Court Memorandum Order, filed September 20, 2017, at 1-3) (internal citations omitted).
On July 25, 2016, [Appellant] timely filed a pro se PCRA petition. On August 9, 2016, [counsel] was appointed to serve as PCRA [c]ounsel. PCRA [c]ounsel was directed to file an [a]mended [p]etition, if one was warranted, within 90 days of his appointment. PCRA [c]ounsel requested and received two (2) extensions of time to file an amended petition. On May 8, 2017, PCRA [c]ounsel timely filed an [a]mended PCRA [p]etition, raising two (2) claims. [Appellant], by way of PCRA [c]ounsel, asserted that [t]rial [counsel] provided ineffective assistance of counsel by: (i) failing to investigate and call character witnesses at trial and (ii) failing to inform [Appellant] of a plea offer and failing to fully advise [Appellant] of the advantages and disadvantages of that offer. ... On June 26, 2017, [Appellant] filed an [a]mendment to his PCRA petition challenging the legality of his sentence [and requesting vacation of the sentence] because [the sentencing court] did not make a RRRI eligibility determination at the time of sentencing.
On August 29, 2017, a PCRA [h]earing was held. At the outset of the hearing, [Appellant] withdrew his claim regarding trial counsel's purported failure to convey a plea offer to [Appellant]. ...
On September 20, 2017, the PCRA court granted in part and denied in part Appellant's PCRA petition. The PCRA court granted resentencing to determine RRRI eligibility but denied the remaining PCRA claims. The court resentenced Appellant on December 6, 2017, to an aggregate term of seven and one-half (7½) to fifteen (15) years' incarceration, plus ten (10) years' probation, and determined Appellant was not RRRI eligible. On December 14, 2017, Appellant filed a timely post-sentence motion, which the court denied on December 20, 2017. Appellant filed a timely notice of appeal on January 12, 2018. The court ordered Appellant on January 17, 2018, to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant complied.
Appellant raises two issues for our review:
DID TRIAL COUNSEL'S FAILURE TO INTERVIEW SEVERAL CHARACTER WITNESSES WHO WOULD HAVE TESTIFIED TO [APPELLANT]'S REPUTATION FOR TRUTHFULNESS AND FOR BEING NON-VIOLENT PREJUDICE [APPELLANT] WHERE TRIAL COUNSEL'S STRATEGY CONSISTED OF CALLING [APPELLANT] TO TESTIFY THAT HE WAS ACTING IN SELF-DEFENSE?(Appellant's Brief at 11).
DID THE [RESENTENCING] COURT ABUSE ITS DISCRETION WHEN RESENTENCING [APPELLANT] BY GIVING UNDUE WEIGHT TO THE SERIOUS NATURE OF THE OFFENSE ITSELF AND BY FAILING TO PROPERLY WEIGH EVIDENCE OF [APPELLANT]'S REHABILITATIVE PROGRESS AND EXEMPLARY RECORD AS AN INMATE?
To the extent the September 20, 2017 PCRA order denied Appellant's petition, it constituted a final order for purposes of appeal. See Commonwealth v. Gaines , 127 A.3d 15 (Pa.Super. 2015) (en banc) (holding PCRA court's order, which granted resentencing but denied all other claims for PCRA relief, was final appealable order; time to appeal denial of PCRA relief began to run on date of that order, not on date trial court resentenced defendant). Here, Appellant's January 12, 2018 notice of appeal is untimely as to the September 20, 2017 PCRA order denying his ineffective assistance of counsel claims. See Pa.R.A.P. 903(a) (stating general rule that appeal must be filed within thirty days). Accordingly, we dismiss Appellant's appeal regarding his challenge to the September 20, 2017 PCRA order and decline to address his first issue related to PCRA court error. See Commonwealth v. Trinidad , 96 A.3d 1031 (Pa.Super. 2014), appeal denied, 627 Pa. 758, 99 A.3d 925 (2014) (providing timeliness of appeal is jurisdictional question that this Court may raise sua sponte). See also Commonwealth v. Patterson , 940 A.2d 493 (Pa.Super. 2007), appeal denied, 599 Pa. 691, 960 A.2d 838 (2008) (stating absent extraordinary circumstances such as fraud or some breakdown in processes of court, this Court has no jurisdiction to entertain untimely appeal).
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing issue:
[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Mann , 820 A.2d 788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
Our standard of review concerning the discretionary aspects of sentencing is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.Commonwealth v. Hyland , 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005). Pursuant to Section 9721(b), "the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S.A. § 9721(b). The record as a whole must reflect the sentencing court's consideration of the facts of the case and the defendant's character. Commonwealth v. Crump , 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). "In particular, the court should refer to the defendant's prior criminal record, his age, personal characteristics and his potential for rehabilitation." Commonwealth v. Griffin , 804 A.2d 1, 10 (Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005).
After a thorough review of the record, the briefs of the parties, the applicable law and the well-reasoned opinion of the Honorable Beth A. Lazzara, we conclude Appellant's second issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed April 18, 2018, at 4-6) (finding: resentencing court did not rely solely on offense gravity score when resentencing Appellant; resentencing court considered pre-sentence investigation ("PSI") report and all relevant factors at resentencing; court specifically noted Appellant's progress while incarcerated and considered Appellant's rehabilitative needs). The record supports the trial court's decision. Accordingly, we affirm the judgment of sentence based on the trial court opinion; we dismiss the appeal with respect to the order denying PCRA relief.
Judgment of sentence affirmed; appeal dismissed in part.
President Judge Emeritus Bender joins this memorandum.
Judge Olson concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/25/2019
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