Com. v. Snow, E. (memorandum)

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J-S55039-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. EDWARD L. SNOW, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 570 WDA 2013 Appeal from the PCRA Order Entered February 28, 2013, In the Court of Common Pleas of Mercer County, Criminal Division, at No. CP-43-CR-0000562-2010. BEFORE: FORD ELLIOTT, P.J.E., GANTMAN and SHOGAN, JJ. MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 4, 2013 Appellant, Edward L. Snow, appeals from the denial of his petition filed pursuant to the Post Conviction Relief Act ( PCRA ), 42 Pa.C.S.A. §§ 9541 9546. We affirm. On September 13, 2011, Appellant pled guilty to one count of possession with intent to deliver oxycodone1 and one count of delivery of oxycodone in exchange for the Commonwealth s amendment and agreement to nol pros two other charged counts. N.T. (Guilty Plea), 9/13/11, at 7 8. On December 2, 2011, the trial court sentenced Appellant to consecutive terms of imprisonment of twenty-four to sixty months each, followed by 1 The Commonwealth agreed to amend the count, reducing it from possession of 9,972 tablets of oxycodone to twenty tablets, thereby reducing the mandatory minimum sentence for the count from five to two years of imprisonment. 18 Pa.C.S.A. § 7508(a)(2)(i) and (ii). J-S55039-13 sixty months of probation on each count, resulting in an aggregate sentence of forty-eight to 120 months of incarceration followed by 120 months of probation. The trial court also ordered that Appellant successfully complete the Drug and Alcohol Therapeutic Community. Appellant filed a pro se PCRA petition on October 15, 2012, and the PCRA court appointed counsel. Following a January 31, 2013 hearing, the PCRA court denied relief. This appeal followed. The PCRA court directed Appellant to file a concise statement of matters complained of on appeal within twenty-one days of April 5, 2013. Counsel filed the statement on May 14, 2013. In reviewing the propriety of the PCRA court s dismissal of Appellant s petition, we are limited to determining whether the court s findings are supported by the record and whether the order in question is free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). Preliminarily, we address the late filing of the Rule 1925(b) statement. As noted previously, the PCRA court ordered the statement s filing within twenty-one days of April 5, 2013, or by April 26, 2013, but it was not filed until May 14, 2013. This Court repeatedly has held that the failure to file a -2- J-S55039-13 Rule 1925 statement constitutes per se ineffective assistance of counsel. See Commonwealth v. McBride, 957 A.2d 752 (Pa. Super. 2008) (holding that failure of defense counsel to file concise statement of errors complained of on appeal constituted per se ineffectiveness); Commonwealth v. Scott, 952 A.2d 1190 (Pa. Super. 2008) (holding counsel s failure to file concise statement is per se ineffectiveness). We have reached the same result when presented with an untimely filing. Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009); Commonwealth v. Thompson, 39 A.3d 335 (Pa. Super. 2012). However, when counsel has filed an untimely Rule 1925(b) statement and the trial court has addressed those issues, we need not remand and may address the merits of the issues. Thompson, 39 A.3d at 340; Burton, 973 A.2d at 433. In the present case, in its February 28, 2013 opinion, the PCRA court addressed the issue outlined in the late Rule 1925(b) statement, which was: [T]he sentence of the Court is manifestly excessive in length, because it is not specifically tailored to the nature of the offense, the ends of justice and society and the rehabilitative needs of the Defendant, 2 Statement of Errors 2 The PCRA court considered the five issues Appellant identified in his PCRA petition, listed below, as impliedly abandoned during the PCRA hearing on January 31, 2013: (a.) [Appellant] was denied effective assistance of counsel when trial counsel induced a guilty plea that carries a greater penalty than the guidelines for twenty (20) dosage units. -3- J-S55039-13 Complained of on Appeal, 5/14/13, at 1. Thus, we need not remand pursuant to Pa.R.A.P. 1925(c)(3), and we will consider the issue raised therein. See Thompson, 39 A.3d at 340 ( When counsel has filed an untimely Rule 1925(b) statement and the trial court has addressed those issues[,] we need not remand and may address the merits of the issues presented. ). Curiously, however, Appellant raises different issues in his brief to this Court, although he incorporates the issue delineated in his Rule 1925(b) statement in his discussion. To complicate matters, the brief Appellant has (b.) [Appellant] was denied effective assistance of counsel when trial counsel conducted no investigation to present character witnesses where [Appellant] has no prior criminal record, is elderly and in ailing health, and where he received an aggravated range sentence without such evidence being presented. (c.) [Appellant] was denied effective assistance of counsel in that counsel did not appear to know the pertinent law that applied to his client in regard to the sentencing ranges, for twenty (20) dosage units as charged. (d.) [Appellant] was denied effective assistance of counsel because trial counsel failed to raise these issues (a.), (b.), and (c.) in a post-sentence motion. (e.) [Appellant] was denied effective assistance of counsel because trial counsel provided [Appellant] with incorrect advice and information concerning the timely filing of appeal. Rule 1925(b) Opinion, 5/14/13, at 2; PCRA Petition, 10/15/12, at ¶ 13. Regardless, the PCRA court had previously addressed each issue raised by Appellant, both in his PCRA petition and at his PCRA hearing, in the PCRA opinion filed on February 28, 2013. -4- J-S55039-13 filed omits page four, the page identified in the index as the statement of the question involved. Counsel who filed the brief has withdrawn, however, and has left his prior employment; thus, we cannot obtain the missing page from the brief.3 It has long been held that Pennsylvania appellate courts will not consider issues that have not been set forth in or suggested by the statement of questions involved. Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417, 429 (Pa. 2007); see also Krebs v. United Refining Co. of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding that the Superior Court will not consider any issue if it has not been set forth in or suggested by the statement of questions involved). Thus, we could deem the issues waived. Here, the argument section of the brief lists two issues, which are as follows: I. The plea agreement that defendant entered into was illegal and it was not entered into know[i]ngly, willingly or intelligently. II. [Appellant s] trial counsel was ineffective for failing to object to the Commonwealth s plea terms. Appellant s Brief at 7, 8 (full capitalization omitted). Thus, while Appellant purports to raise issues concerning the plea agreement and the ineffectiveness of trial counsel in his brief to this Court, he raised a sentencing issue in his Pa.R.A.P. 1925(b) statement. These two additional 3 New counsel has been appointed for Appellant. -5- J-S55039-13 issues were discussed, however, at the PCRA hearing and also were addressed by the PCRA court in its February 28, 2013 opinion. Considering all of the procedural irregularities of this case, in light of the fact that counsel withdrew after filing his brief, due most significantly to the fact that the PCRA court addressed all of the issues Appellant sought to raise, and in light of judicial economy, we will not find waiver herein. Rather, upon review of the record, the parties briefs, and the applicable legal authority, we discern no abuse of discretion and conclude that the PCRA court accurately addressed and disposed of all of Appellant s issues. Accordingly, we affirm the PCRA court s order, and we do so on the basis of the court s thorough and comprehensive February 28, 2013 opinion supplemented by its May 14, 2013 opinion filed pursuant to Pa.R.A.P. 1925.4 Order affirmed. GANTMAN, J., Concurs in the Result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/4/2013 4 The parties are directed to attach copies of those opinions in the event of further proceedings in this matter. -6-

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