Com. v. Myers, R. (memorandum)

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J-S33020-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. RICKY MYERS, Appellant No. 3051 EDA 2012 Appeal from the PCRA Order of October 12, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0016366-2009 BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ. MEMORANDUM BY OLSON, J.: FILED JULY 03, 2014 Appellant, Ricky Myers, appeals pro se from the order entered on October 12, 2012, dismissing his first petition filed under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm. The material facts and procedural history of this case are as follows. On April 8, 2010, Appellant entered an open guilty plea to one count of second-degree aggravated assault and one count of possession of an instrument of crime as a first-degree misdemeanor.1 On June 24, 2010, the reporting) and $550.00 in restitution for aggravated assault, together with ____________________________________________ 1 18 Pa.C.S.A. § 2702 (a) and § 907, respectively. J-S33020-14 60 months of concurrent reporting probation and a $40.00 fine for possessing an instrument of crime. On August 13, 2010, Philadelphia police arrested Appellant for attempted robbery, conspiracy, possession of an instrument of crime, and tampering with physical evidence. On September 10, 2010, the trial court held a preliminary hearing November 10, 2010, the trial court convened a Daisy Kates2 hearing to determine whether Appellant violated the terms of his probation. At the November 10, 2010 hearing, the Commonwealth called the victim of the attempted robbery, as well as an investigating officer. Additional evidence introduced at the hearing showed that Appellant tested positive for marijuana use on August 5, 2010. At the conclusion of the hearing, the trial court found by a preponderance of the evidence that Appellant was in direct violation of his probation. NT, 11/10/10, at 28-30. Accordingly, the court ordered a mental health evaluation and presentence investigation report. Thereafter, the court re-sentenced Appellant on December 15, 2010 to 60 to ____________________________________________ 2 Commonwealth v. Kates, 305 A.2d 701, 708-709 (Pa. 1973). In Kates, our Supreme Court held that when a probationer has been charged with a new offense, his probation may be revoked prior to a trial on the new charge so long as the court supervising the probationer holds a hearing on the matter. Id. -2- J-S33020-14 crime. Appellant filed a motion to reconsider his sentence on December 23, 2010, which the trial court denied on February 14, 2011. Appellant did not file a direct appeal. After he was sentenced for violating his probation, Appellant went to trial on the attempted robbery and related charges. On May 2, 2011, a jury acquitted Appellant on all counts. Appellant filed a pro se PCRA petition on May 12, 2011. The PCRA court appointed counsel and, on December 15, 2011, counsel filed an petition on June 7, 2012. Pursuant to Pa.R.Crim.P. 907, the PCRA court 2012. On October 25, 2012, Appellant filed a pro se notice of appeal pursuant to Pa.R.A.P. 1925(b). The PCRA court ordered Appellant to file a concise statement of errors complained of on appeal on November 20, 2012. On November 29, 2012, Appellant filed and served his concise statement. The PCRA court issued its Rule 1925(a) opinion on February 4, 2013.3 ____________________________________________ 3 On June 13, 2013, the Commonwealth moved to stay appellate counsel. By per curiam order entered on July 16, 2013, this Court granted o conduct case and whether Appellant had expressed a knowing, intelligent, and (Footnote Continued Next Page) -3- J-S33020-14 Appellant now raises the following claims for our review: [1] Did the trial court err when it violated Appellant prematurely [sic]? [2] Did the trial court err when Appellant never violated conditions of probation? [3] Is the violation? them together. - Essentially, in developing these claims, Appellant asserts that the PCRA court erred in dismissing his petition because his May 2, 2011 acquittal demonstrated that his probation was revoked prematurely and that the evidence upon which the trial court relied in revoking his probation lacked sufficient probative value to establish either a direct or a technical violation. These claims are both waived and meritless. whether its decision is free from legal err Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003). (Footnote Continued) _______________________ voluntary desire to proceed pro se under Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). By order dated December 16, 2013, the PCRA court released counsel, finding that Appellant relinquished his right to representation in a knowing, intelligent, and voluntary manner. -4- J-S33020-14 Under 42 Pa.C.S.A. § 9543(a)(3), a petitioner must show that his allegations of error have not been previously litigated or waived. Pursuant could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post- 9544(b). In his first two claims, Appellant challenges the timing of his revocation proceeding and the sufficiency of the evidence offered to establish a violation of his probation. Neither contention is raised in the context of a claim asserting that counsel was ineffective. Because these issues could have been raised at prior proceedings or on direct appeal, they are waived for purposes of the present collateral proceedings. we would conclude that Appellant is not entitled to relief. In assessing the validity of the revocation proceedings, we apply the following principles articulated by our Supreme Court: The primary concern of probation, as well as parole, is the rehabilitation and restoration of the individual to a useful life. It is a suspended sentence of incarceration served upon such lawful terms and conditions as imposed by the sentencing court. It requires only a truncated hearing by the sentencing court to determine whether probation remains rehabilitative and continues to deter future antisocial conduct. The purpose of the revocation hearing is simply to establish to the satisfaction of the judge who granted probation that the individual's conduct warrants his continuing as a probationer. The controlling consideration at a [revocation] hearing is whether the facts presented to the court are probative and reliable and not whether traditional rules of procedure have been strictly -5- J-S33020-14 observed. Such a hearing takes place without a jury, with a lower burden of proof, and with fewer due process protections. Commonwealth v. Mullins, 918 A.2d 82, 85 (Pa. 2007) (internal quotations and citations omitted). On September 10, 2010, the trial court conducted a preliminary offenses. Ultimately, those charges were bound over for trial. This initial Gagnon I hearing. See Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v. Davis, 336 A.2d 616, 622 (Pa. Super. 1975) (where a preliminary hearing has been Gagnon I hearing). The subsequent Daisy Kates hearing held on November 10, 2010 found that Appellant was in violation of his probation and the court resentenced him to incarceration. See Kates, supra. Based upon our review determination that Appellant was in direct violation of the terms of his probation and that probation no longer represented a viable means of correctly points out, because a revocation hearing differs substantially from does not defeat the validity first two claims fail. -6- J-S33020-14 provided with written notice of the claimed violations of [probation], the court failed to disclose evidence against Appellant, did not provide Appellant the opportunity to present witnesses and documentary evidence, nor provide Appellant the right to confront and cross- Id. This boilerplate claim is belied by the record and merits no relief. As a preliminary matter, we find that s brief hamper meaningful review of this issue. The Pennsylvania Rules of Appellate Procedure set forth mandatory briefing requirements for litigants presenting their claims before this Court. See Pa.R.A.P. 2101. Briefs filed with this Court must contain an argument section that develops claims through meaningful discussion supported by pertinent legal authority and citations to the record. Pa.R.A.P. 2111(a)(8); Pa.R.A.P. 2119. We may quash or dismiss an appeal where an appellant fails to comply with the briefing requirements of our appellate rules. Pa.R.A.P. 2102; see also Commonwealth v. Adams, 882 A.2d 496, 497-498 (Pa. Super. 2005) (Superior Court may quash or dismiss appeals where non-conforming briefs have been fil materials filed by a pro se litigant, pro se status confers no special benefit -7- J-S33020-14 Id. at 498. Since Appellant has failed to develop a due process violation in his brief, he has waived this claim. objection to the discretionary aspects of his punishment, 4 we note that such a claim is not cognizable under the PCRA. See Commonwealth v. Fowler, 930 A.2d appeal denied, 944 A.2d 756 (Pa. 2008); 42 Pa.C.S.A. § 9543(a)(2)(vii). Moreover, our review of the record confirms that Appellant received notice of the allegations against him and that he had the opportunity to confront the final claim merits no relief. Order affirmed. ____________________________________________ 4 statutory provision or that it subjected him to double jeopardy. Thus, we do See Fowler, 930 A.2d at 592 (claim challenges legality of sentence where appellant asserts that statute bars court from imposing sentence or where sentence subjects defendant to double jeopardy). -8- J-S33020-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/3/2014 -9-

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