Opinion
J-S67027-17 No. 3300 EDA 2016
12-12-2017
COMMONWEALTH OF PENNSYLVANIA v. ANDRE JONES, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order September 28, 2016 in the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006645-2012 BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY MUSMANNO, J.:
Former Justice specially assigned to the Superior Court.
Andre Jones ("Jones") appeals, pro se, from the Order dismissing his first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In its Opinion, the PCRA court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 12/21/16, at 1-3.
In his brief, the entirety of which is only three pages, Jones identifies six arguments, see Brief for Appellant at 2-3 (unnumbered), all of which "appear to be based on the contention that he had negotiated a plea agreement with a sentence of 10 to 20 years in prison, which the Commonwealth then allegedly modified without his consent." PCRA Court Opinion, 12/21/16, at 4.
Jones did not include a separate statement of questions involved in his brief. See Pa.R.A.P. 2116(a) (providing that "[t]he statement of the questions involved must state concisely the issues to be resolved.... No question will be considered unless it is stated in the statement of questions involved."). Nevertheless, we will not find waiver on this basis.
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
We will consider Jones's first two claims together, as they are related. In his first claim, Jones argues that the Commonwealth committed prosecutorial misconduct by making "an offer it never intended to keep to get a guilty plea." Brief for Appellant at 2 (unnumbered). In his second claim, Jones argues that, due to the Commonwealth's error, his guilty plea was entered under false pretenses. Id.
Initially, we observe that Jones failed to provide an adequate discussion of his claims with citations to the record. See Pa.R.A.P. 2119(a) (requiring that each point in an argument contain "such discussion and citation of authorities as are deemed pertinent."); see also Commonwealth v. Johnson , 985 A.2d 915, 924 (Pa. 2009) (stating that "where an appellate brief fails to provide any discussion of a claim with citation to relevant authority[,] or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived."). Accordingly, Jones's first two claims are waived. Moreover, Jones's prosecutorial misconduct claim is not cognizable under the PCRA, and is also waived due to his failure to raise the issue before the trial court or on direct appeal. See 42 Pa.C.S.A. § 9543(a)(2) (setting forth the categories of errors for which the PCRA provides a remedy); id. 9544(b) (noting that an allegation raised in a PCRA petition is waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding."); see also Commonwealth v. Tedford , 960 A.2d 1, 28-29 (Pa. 2008) (stating that where "no objection was raised, there is no claim of 'prosecutorial misconduct' as such available.").
We will consider Jones's third, fourth, and fifth claims together. In these claims, Jones asserts that his plea counsel was ineffective for failing to withdraw Jones's guilty plea, where Jones did not agree with the Commonwealth's "modified offer." Brief for Appellant at 2-3 (unnumbered). Jones also claims that his counsel was ineffective for failing to object, during the sentencing hearing, to alleged facts and offenses to which he did not plead guilty. Id. at 3.
Jones again fails to provide an adequate discussion of his claims with citations to the record. See Pa.R.A.P. 2119(a); see also Johnson , supra.
In its Opinion, the PCRA court considered Jones's claims that plea counsel was ineffective for failing to withdraw his guilty plea, set forth the relevant law, and concluded that these claims lack merit. See PCRA Court Opinion, 12/21/16, at 4-8. We agree with the sound reasoning of the PCRA court, and affirm on this basis as to Jones's challenges to the effectiveness of his plea counsel. See id. Further, as the PCRA court noted in its Opinion, "[p]lea counsel did file a post-sentence [M]otion on [Jones's] behalf, raising a claim that the prosecutor had made reference during her sentencing argument to allegations that were not part of the facts admitted to during the guilty plea." Id. at 3 n.2. Accordingly, Jones is not entitled to relief on these claims.
In his sixth claim, Jones argues that the trial court erred by "not allowing [Jones] the chance to withdraw his plea when [the Commonwealth] admitted there was an error in offer, knowing what the original offer was." Brief for Appellant at 3 (unnumbered).
We additionally observe that Jones failed to develop his claim in a meaningful fashion. See Pa.R.A.P. 2119(a); see also Johnson , supra. --------
Jones failed to raise this claim in his Concise Statement, and therefore, it is waived. See Pa.R.A.P. 1925(b)(4)(vii) (stating that "[i]ssues not included in the Statement ... are waived."); see also Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (stating that "[a]ny issues not raised in a 1925(b) statement will be waived."). Moreover, we cannot conclude that the trial court erred by denying Jones the opportunity to withdraw his plea, where Jones did not file a motion to withdraw his plea, and we have determined that his plea counsel was not ineffective for failing to do so.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/12/2017
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