Com. v. Lewis, D. (memorandum)

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J-S27003-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DOMENIQUE JAMES LEWIS Appellant No. 1760 WDA 2012 Appeal from the Judgment of Sentence September 27, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0007865-2012 BEFORE: GANTMAN, P.J., ALLEN, J., and STABILE, J. MEMORANDUM BY GANTMAN, P.J.: FILED JULY 2, 2014 Appellant, Domenique James Lewis, appeals from the judgment of sentence entered in the Allegheny County Court of Common Pleas, following his bench trial conviction of persons not to possess firearms.1 We affirm. history of this case as follows: [Appellant] possessed a 9 millimeter handgun during a robbery attempt that quickly turned into a homicide [when Appellant] and another person attempted to rob the victim. During the course of the robbery numerous gunshots were fired into the victim and he died as a result of those gunshots. At the jury trial, Tyree Smith testified that he personally observed [Appellant] point what appeared to be ____________________________________________ 1 18 Pa.C.S.A. § 6105(a)(1). J-S27003-14 a 9 millimeter handgun at the victim and fire multiple gunshots toward the victim. Tyree Smith was vigorously cross-examined by defense counsel at trial. Another trial witness, Tashawn Blair, had been interviewed by police during the course of the homicide investigation. Detective James McGee, of the City of Pittsburgh Bureau of Police testified that during the homicide investigation, he played for the jury. Blair told police that [Appellant] had come to his residence on or about March 22, 2011[,] and spent the night. [Appellant] left the next morning. A few days later, Mr. Blair found a 9 millimeter handgun on the top of the refrigerator of his residence. He testified that to his knowledge, the gun was not in his residence prior to [Appellant] had left. At trial, Blair provided a different version of events and testified that he [did not] know how the gun got into his house and that someone who attended statements made to the detectives were inconsistent with stimony, this [c]ourt permitted the admission case. Considering the testimony of Tyree Smith and Detective McGee, this [c]ourt believed that sufficient evidence was presented at trial that [Appellant] possessed a firearm. The Commonwealth and [Appellant] stipulated that [Appellant] had been adjudicated delinquent of * * * At the conclusion of the jury trial, [Appellant] proceeded to a non-jury trial on the charges of being a person not to possess a firearm. The evidence presented at the jury trial was also being presented for consideration in the non-jury trial. This [c]ourt convicted [Appellant] of possessing a firearm as a person prohibited from possessing a firearm. This [c]ourt sentenced [Appellant] to a term of imprisonment of not less than 2.5 years nor more than 5 years which was ordered to run concurrently to a sentence of imprisonment of not less than 33.5 nor more than 67 years imposed on [Appellant] in an unrelated case. -2- J-S27003-14 (Trial Court Opinion, filed July 15, 2013, at 1-3). Appellant filed a timely post-sentence motion, which challenged the weight and sufficiency of the Appellant timely filed a notice of appeal on November 9, 2012. The court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied and again raised claims challenging the weight and sufficiency of the evidence. Appellant raises the following issues for our review: DID NOT THE TRIAL COURT ERR WHEN, IN SENTENCING APPELLANT FOR A VIOLATION OF 18 PA.C.S. § 6105(C)(7), IT BASED ITS SENTENCING DECISION ON AN ERRONEOUS PREMISE THAT BEING THAT THE CORRECT OFFENSE GRAVITY SCORE FOR AP WAS LEVEL FIVE, WHEN IN FACT IT WAS LEVEL THREE (WITH THAT ERROR RESULTING IN THE TRIAL COURT ERRONEOUSLY CONCLUDING THAT THE BEYOND-THEAGGRAVATED-RANGE 2½-TO-5 YEAR CONFINEMENT SENTENCE IT IMPOSED UPON APPELLANT WAS A STANDARD RANGE SENTENCE, WITH THAT ERROR BEING SUCH THAT VACATION OF SENTENCE AND A REMAND WITH INSTRUCTIONS IS REQUIRED BY 42 PA.C.S. § 9781(C)(1))? DID NOT TRIAL COUNSEL RENDER INEFFECTIVE ASSISTANCE, CLEAR FROM THE FACE OF THE CERTIFIED RECORD, WHEN [TRIAL COUNSEL] FAILED TO OBJECT TO THE TRIAL COURT SENTENCING BASED UPON AN ERRONEOUS OFFENSE GRAVITY SCORE AND THUS AN ERRONEOUS SENTENCING GUIDELINES RANGE (WITH THE REMEDY FOR THAT INEFFECTIVENESS BEING TO EXCUSE THE WAIVER OCCASIONED BY HER FAILURE TO OBJECT, AND TO REACH THE MERITS OF THE WAIVED CLAIM)? DID NOT CURRENT COUNSEL, AS DIRECT APPEAL COUNSEL, RENDER INEFFECTIVE ASSISTANCE, CLEAR FROM THE FACE OF THE CERTIFIED RECORD, WHEN HE -3- J-S27003-14 FAILED TO ASSERT, IN THE CONCISE STATEMENT OF ERRORS THAT HE BEHALF, THE CLAIM THAT TRIAL COUNSEL RENDER[ED] INEFFECTIVE ASSISTANCE, CLEAR FROM THE FACE OF THE CERTIFIED RECORD, WHEN [TRIAL COUNSEL] FAILED TO OBJECT TO THE TRIAL COURT SENTENCING BASED UPON AN ERRONEOUS OFFENSE GRAVITY SCORE AND THUS AN ERRONEOUS SENTENCING GUIDELINES RANGE (WITH THE REMEDY FOR CURRENT C NESS BEING TO EXCUSE HIS WAIVER AND REACH [THE] MERITS OF THE WAIVED CLAIM OF INEFFECTIVE TRIAL COUNSEL)? -5). In his first issue, Appellant argues his sentence of two and one-half because the sentencing court applied an incorrect offense gravity score. Specifically, Appellant contends the sentencing court applied an offense three (3), and as a result the sentencing court imposed what it believed to be a standard range sentence, but the sentence imposed was actually a sentence beyond the aggravated range. Appellant alleges he was convicted of persons not to possess firearms under Section 6105(c)(7) because he was previously adjudicated delinquent of a separate robbery offense. Appellant claims the sentencing guidelines do not provide an offense gravity score for a violation of Section 6105(c)(7) and, pursuant to 204 Pa.Code § 303.15, the sentencing guidelines apply a default offense gravity score of three (3), conviction. Appellant concludes the sentencing court erred in applying an -4- J-S27003-14 incorrect sentence. offense gravity score, and this Court should remand for See Commonwealth v. Lamonda, 52 A.3d 365 (Pa.Super. 2012) (explaining claim that sentencing court applied incorrect offense gravity score challenges discretionary aspects of sentencing); Commonwealth v. Robinson, 931 A.2d 15 (Pa.Super. 2007) (stating miscalculation of offense gravity score constitutes challenge to discretionary aspects of sentencing); Commonwealth v. Archer, 722 A.2d 203 (Pa.Super. 1998) (determining claim of improper calculation of offense gravity score implicates discretionary aspects of sentencing). Preliminarily we observe Appellant did not object to the offense gravity score during sentencing or in a post-sentence motion challenging the discretionary aspects of sentencing. See Commonwealth v. Mann, 820 A.2d 788 (Pa.Super. 2003) (stating issues that challenge discretionary aspects of sentencing are generally waived if they are not raised during sentencing proceedings or in postpreserve their claims for appellate review, appellants must comply whenever the trial court orders them to file a Statement of [Errors] Complained of on Appeal pursuant to [Rule] 1925. Any issues not raised in a [Rule] 1925(b) Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998)). Instantly, Appellant raised -5- J-S27003-14 only the weight and sufficiency of the evidence in his post-sentence motion aspects of sentencing claim is waived. See id.; Mann, supra. In his second and third issues combined, Appellant argues ineffective assistance of both trial counsel and current appeal counsel. Appellant claims trial counsel was ineffective for failing to object t application of an incorrect offense gravity score, which resulted in a failure to object was unreasonable because an objection would have s sentencing issue for appellate review. Appellant avers he suffered prejudice because he would have received a lesser sentence had Appellant claims appellate counsel was ineffective for omitting a claim statement, thereby waiving the claim on appeal as well. Appellant contends there was no reasonable basis for appellate counsel to omit the claim from Appel ineffectiveness claim been properly preserved. Appellant concludes this Court should remedy trial and appella reviewing the merits of these claims on direct appeal pursuant to Commonwealth v. Holmes, ___ Pa. ___, 79 A.3d 562 (2013), as the -6- J-S27003-14 ineffectiveness claims. Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002). ly after a petitioner has had the opportunity to raise that claim on collateral review and has failed to avail Id. ineffectiveness will no longer be considered waived because new counsel on Id. Nevertheless, our Supreme Court has recognized two very limited exceptions to the general rule in Grant regarding the appropriate timing for review of ineffective assistance of counsel claims: First, we appreciate that there may be extraordinary circumstances where a discrete claim (or claims) of trial counsel ineffectiveness is apparent from the record and meritorious to the extent that immediate consideration best serves the interests of justice; and we hold that trial courts retain their discretion to entertain such claims. defendant seeks to litigate multiple or prolix claims of counsel ineffectiveness, including non-record-based claims, on post-verdict motions and direct appeal, we repose discretion in the trial courts to entertain such claims, but only if (1) there is good cause shown, and (2) the unitary review so indulged is preceded by the defendant and express waiver of his entitlement to seek PCRA review from his conviction and sentence, including an express -7- J-S27003-14 recognition that the waiver subjects further collateral review to the time and serial petition restrictions of the PCRA. See Holmes, supra at ___, 79 A.3d at 563-64 (internal citations and footnotes omitted) (emphasis added). Here, neither Holmes ineffectiveness claims are not so apparent from the record, nor has he waived his entitlement to seek PCRA review. See id. Absent these exceptions, our Supreme Court in Holmes upheld the general rule in Grant. See id. at ___, 79 A.3d at 576 (holding ineffective assistance of counsel claims are to be deferred to PCRA review, and should not be reviewed on direct appeal). Holmes does not allow review of standard ineffectiveness of counsel claims, which are raised for the first time on appeal, even in the Grant, we dismiss ss of counsel claims but without prejudice to Appellant to raise them in a timely petition for collateral relief. See Grant, supra of sentence on waiver grounds. See generally In re K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d 1244, 1246 n.3 (2007) (stating where issues are waived on appeal, we should affirm rather than quash appeal). Judgment of sentence affirmed. -8- J-S27003-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/2/2014 -9-

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