Com. v. Kendrick, D. (memorandum)

Annotate this Case

Download PDF

J-S01035-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DARIN KENDRICK Appellant No. 1161 WDA 2013 Appeal from the PCRA Order of July 12, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No.: CP-02-CR-0016284-2006 BEFORE: FORD ELLIOTT, P.J.E., BOWES, J., and WECHT, J. MEMORANDUM BY WECHT, J.: FILED: April 24, 2014 Darin Kendrick appeals the July 12, 2013 order dismissing his petition for relief pursuant to the Post§§ 9541-46, without an evidentiary hearing. We affirm. On May 20, 2008, Kendrick pleaded guilty to aggravated assault, terroristic threats, recklessly endangering another person, possession of a controlled substance cocaine, and possession of a small amount of marijuana.1 Sentencing was delayed for the preparation of a pre-sentence investigation report. However, when the parties appeared before the trial court for sentencing, Kendrick requested to withdraw his May 20, 2008 ____________________________________________ 1 18 Pa.C.S. §§ 2702(a)(1), 2706(a)(1), and 2705, and 35 P.S. §§ 780113(a)(16) and (31), respectively. J-S01035-14 and re-scheduled the matter for October 29, 2008. On that date, Kendrick again pleaded guilty to the aforementioned crimes. During the plea hearing, the assistant district attorney assigned to the case summarized the facts underlying the crimes to which Kendrick pleaded guilty as follows: [O]n or about September 20, 2006, officers were dispatched to 2654 Woodland Avenue for a violent domestic. Officers were unable to get an answer at the door. Officers made a call back to the complainant and notified that police were at the front door. The victim, Tina North, opened a second floor window and indicated to the officers that [Kendrick] was still inside the residence. She indicated to the officers that she was injured and unable to walk down the stairs and open the door. She proceeded to throw the keys to the residence out the window to the officers. The officers then proceeded into the residence. They announced themselves, [and] made entry into the home. They then checked the interior of the residence. Officers then located [Kendrick] sitting on the toilet in the bathroom of the first floor. He was then detained and handcuffed. The officers then checked the area in the bathroom for weapons. They located a clear plastic baggie containing marijuana laying on top of rubbish in the garbage can. Officers then discovered a folded one dollar U.S. currency containing a white powdered substance with suspected cocaine in the garbage can. The victim indicated to the officers that she was asleep in her bedroom on the second floor of the residence when she was awoken by her boyfriend, [Kendrick]. She indicated that [Kendrick] proceeded to immediately pull her from the bed by her hair and began to punch her in the face. Ms. North indicated that [Kendrick] then threw her into the closet next to the bed and threw a television set on top of her. -2- J-S01035-14 She said that [Kendrick] then began to strangle her. Ms. North stated that she was then strangled until she lost consciousness. Ms. North indicated she woke sometime later when she was being pulled from the closet by [Kendrick]. She stated he then pulled her back into the bed and began striking her with an aluminum baseball bat. She indicated she was struck several times in the arms, back of the legs and head. After being struck with the baseball bat, she indicated that [Kendrick] pulled her into an adjoining bedroom. Once in the other bedroom, she indicated that he pushed a large piece of furniture, namely a chest of drawers, on top of her. She indicated that he then left the bedroom and went downstairs[.] [U]sing her telephone[,] Ms. North then stated she was able to call 911 for help. She then believed at that point that he was trying to kill her. As a result of the assault, Ms. North was observed with [a] swollen shut left eye, a lump on her head, bloody mouth, a welt on her left forearm, suspected broke left ring finger, a large welt on her lower back, a scratch on her lower right leg, complaint of pain in her right thumb and a welt on her left thigh[. T]here were numerous injuries suspected to be delivered. After examination from the scene to was blood all over then placed under at the [residence], she was then transported Allegheny General Hospital by medics. There the bedroom of the residence. [Kendrick] was arrest and transported to the jail. Upon check of the bedroom, the officers then located and recovered the aluminum bat on the floor of the bedroom. There Notes of Testimony -8. Kendrick did not offer any Id. at 11. Kendrick appeared before the trial court again on August 13, 2008 for sentencing. At sentencing, the trial court expressed concern that the Commonwealth had submitted a proposed sentencing guideline form for the -3- J-S01035-14 crime of aggravated assault causing serious bodily injury. The trial court believed that the evidence did not prove, beyond a reasonable doubt, that serious the court believed that the evidence established only that Kendrick attempted to cause serious bodily injury. Thus, the court believed that the proposed sentencing guidelines should reflect this distinction. N.T., 1/26/2009, at 4district attorney submitted a new guideline form reflecting sentencing ranges for aggravated assault attempted serious bodily injury. The re-submitted guideline form also indicated the range of sentences after the application of the deadly weapon enhancement. Id. at 8. The assistant district attorney also noted that Kendrick entered a general plea on October 29, 2008, and that the Commonwealth had not negotiated away its right to pursue the deadly weapon enhancement. Nonetheless, the assistant district attorney declared that the Commonwealth would leave the decision of whether to Id. at 9. Before imposing a sentence, the trial court noted the following: The Court is going to take into consideration the fact that [Kendrick] has entered a guilty plea here. I know the guidelines in the mitigated range with the deadly weapon enhancement are 54 to 66 months. There is very little at all, Mr. Kendrick, that is mitigating about your conduct here. The Court has already had the district attorney amend the guidelines down because I do not believe the facts of the case were that you, in fact, caused serious bodily injury to the victim but you clearly attempted to beyond any doubt attempted to. And that is what you plead guilty to. -4- J-S01035-14 Even though the guidelines are here for the benefit of the Court, I intend to try and mold the sentence to an appropriate sentence needs to be fair and just and appropriate punishment for your conduct. Id. at 11-12. Thereafter, the Court sentenced Kendrick to sixty to one tion on the aggravated assault count. No further punishment was imposed on the remaining counts. Id. at 12. On February 4, 2009, Kendrick filed a motion for reconsideration of his sentence. On August 17, 2009, that motion was denied by operation of law. Initially, Kendrick did not file a direct appeal. However, Kendrick filed a pro se PCRA petition, which was later amended by appointed counsel, seeking to PCRA petition, and Kendrick pursued a direct appeal in this Court. On See Commonwealth v. Kendrick, No. 647 WDA 2010, slip op. at 1, 8 (Pa. Super. Nov. 16, 2010). Kendrick did not file a petition for allowance of appeal with the Pennsylvania Supreme Court. On November 23, 2010, Kendrick, through PCRA counsel, filed a second PCRA petition. Kendrick alleged that trial counsel was ineffective for cable sentencing guidelines, which Kendrick believed were calculated incorrectly by twelve months. On January 14, 2011, after Kendrick filed an amended petition and the Commonwealth filed an answer, the PCRA court issued a notice of its intent to dismiss -5- J-S01035-14 Pa.R.Crim.P. 907. No action was taken on the case until May 28, 2013, when Kendrick filed a motion with the PCRA court seeking a final order RA court On July 17, 2013, Kendrick filed a notice of appeal, and an contemporaneous concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On September 25, 2013, the PCRA court not filed in the official docket until October 2, 2013. Kendrick presents two issues for our consideration: 1. Whether [trial counsel] was ineffective in failing to preserve the claim that the [trial court] erred in calculating the standard range of the sentencing guidelines as [twelve] months higher that it actually was and whether said court intended to impose a sentence at the low end of the standard range which would have been [twelve] months lower than the minimum sentence actually imposed? 2. Whether the [PCRA court] erred and/or abused its discretion in not holding an evidentiary hearing on said claim? Brief for Kendrick at 3. Our review of a PCRA court order dismissing a petition under the PCRA is subject to the following standard: 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 is supported by evidence of record and is free of legal error. the record supports it. We grant great deference to the factual -6- J-S01035-14 findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012) (quoting Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012); internal citations omitted)). effectiveness during his sentencing hearing. This issue is governed by the following standard: In Pennsylvania, counsel is presumed effective, and a defendant bears the burden of proving otherwise. In order to be entitled to relief on a claim of ineffective assistance of counsel, the PCRA petitioner must plead and prove by a preponderance of the evidence that (1) the underlying claim has arguable merit; (2) counsel whose effectiveness is at issue did not have a reasonable basis for his action or inaction; and (3) the PCRA omissions were reasonable, we do not question whether there were other more logical course of actions which counsel could decisions had any reasonable basis. Further, to establish prejudice, a petitioner must demonstrate that but for the act or omission in question, the outcome of the proceedings would have been different. Where it is clear that a petitioner has failed to meet any of the three, distinct prongs . . ., the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met. Commonwealth v. Steele, 961 A.2d 786, 796-97 (Pa. 2008) (citations and internal quotation marks omitted; emphasis in original). -7- J-S01035-14 Kendrick argues that the trial court sentenced him based upon an incorrect calculation of the mitigated range of the sentencing guidelines. weapon enhancement, the bottom of the mitigated range would be [fortyof that range in such circumstances is thirty-six Commonwealth agrees. months, an assertion with which the See Brief for Kendrick at 15-16; Brief for the Commonwealth at 12. However, the Commonwealth maintains that the trial tance of the court simply misspeaking, and not See Brief for Commonwealth at 12. The PCRA court concluded that it relied upon the correct sentencing guidelines when it ultimately imposed the sentence, but did not state whether the statement relied upon by Kendrick was a misstatement or an error. Nonetheless, trial counsel did not object to miscalculation, which Kendrick contends amounts to this purported constitutional ineffectiveness. Kendrick argues that the trial court sentenced him to twelve months more than it had intended. We need not address whether this claim has arguable merit, or whether counsel had a reasonable basis for failing to object to the trial that he suffered prejudice. See Steele, supra petitioner has failed to meet any of the three, distinct prongs . . ., the claim may be disposed of on that basis alone, without a determination of whether -8- J-S01035-14 properly preserved, he would have obtained vacatur of his sentence and/or disagree. Even if we assume, arguendo, for the purposes of this analysis that the trial court was operating with an incorrect sentencing guideline range, it nonetheless is apparent from the record that the court utilized the guidelines as advisory only, and imposed its sentence based upon the individual facts and circumstances, and the lack of mitigating circumstances in the case. In other words, there is nothing in the record that would indicate that the following before imposing its sentence: There is very little at all, Mr. Kendrick, that is mitigating about your conduct here. The Court has already had the district attorney amend the guidelines down because I do not believe the facts of the case were that you, in fact, caused serious bodily injury to the victim but you clearly attempted to beyond any doubt attempted to. And that is what you plead guilty to. Even though the guidelines are here for the benefit of the Court, I intend to try and mold the sentence to an appropriate sentence for the individual involved needs to be fair and just and appropriate punishment for your conduct. N.T., 1/26/2009, at 11claim, the PCRA court noted the following: -9- J-S01035-14 More importantly, as the Court stated on the record, although it was aware of the guidelines, it was imposing a sentence that it believed to be fair and appropriate under the circumstances of the case. . . . Thus, this Court was aware of the correct guidelines but imposed a sentence it believed to be appropriate under the circumstances. PCRA Court Opinion, 9/25/2013, at 4. Thus, it is clear to us that, even if the was incorrect, the calculation did not have a discernible impact upon the final sentence imposed by the court. Indeed, there is no indication different had the trial court calculated the guidelines otherwise. Because Kendrick cannot demonstrate that his sentence would have been different had trial counsel objec sentencing guidelines, he has not satisfied his burden pursuant to our threepart test for ineffective assistance of counsel. Hence, his claim fails. In his second issue, Kendrick argues that the PCRA court abused its assistance of counsel claim. [T]he right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Supe patently frivolous and has no support either in the record or other evidence. Id. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing. - 10 - J-S01035-14 Commonwealth v. Hardcastle, 701 A.2d 541, 542-43 (Pa. 1997). Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007) (quoting Commonwealth v. Khalifah, 852 A.2d 1238, 1239-40 (Pa. Super. 2004)) (citations modified). Because we conclude that there is no evidence in the record that Kendrick suffered prejudice, we also conclude that the petition without a hearing. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/24/2014 - 11 -

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.