J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHAWN MCAFEE

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1549 EDA 2019
Appeal from the PCRA Order Entered May 10, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0006495

- 2010

BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J. *

MEMORANDUM BY LAZARUS, J.: FILED: FEBRUARY 26, 2021

Shawn McAfee appeals, pro se , from the order, entered in the Court of

Common Pleas of Philadelphia County, denying his petition filed pursuant to

the Post Conviction Relief Act (PCR A), 42 Pa.C.S.A. §§ 9541

- 9546. Upon

careful review, we affirm.

The PCRA court set forth the facts and procedural history of the case as

follows:

On December 3, 2008, at approximately 8:00 [] p.m., Marquel Miles[, the victim,] was in a [] store at the cor ner of 7 th and West Clearfield Streets [] in Philadelphia. [ ] McAfee[] approached [] Miles inside the store and they had a conversation. Then, from about five feet away, [McAfee] shot [] Miles five times with a [0] .9 millimeter semiautomatic handgun [: ] in the abdomen, the groin area, [] the arm, and [] both legs. [Miles] was taken to Temple University Hospital where he underwent several surgeries. []

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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Miles survived until April 14, 2009[,] when he was pronounced dead [.]

* * *

After a mistrial before the Honorable Teresa M. Sarmina, [] McAfee pleaded guilty [] to murder [in] the third degree and violating [s]ection 6105 of the Uniform Firear ms Act (VUFA) on April 16, 2012. In accordance with the terms of the negotiated plea, [t he court sentenced] McAfee [] to an aggregate term of twenty

- five [] to fifty [] years of state incarceration [,] to be served concurrently with the sentence imposed on a prior federal conviction. [McAfee did not file a direct appeal.]
On March 20, 2013, M cAfee filed a pro se petition under the [PCRA.] Gary Server, Esquire [ , ] was appointed as PCRA counsel on December 12, 20 13, and filed an amended petition on June 6, 2014. However, [McAfee ] requested a Grazier hearing on F ebruary 1, 2016[, which the court held] on May 16, 2016[. At the hearing, McAfee’s ] retained [private] counsel Susan Lin, Esquire, entered her appearance and [ the court permitted Attorney] Server [] to withdraw. [Attorney] Lin filed a second amended petition [on August 18, 2016] , raisin g a single sentencing claim [. On April 5, 2017, McAfee] filed an amended pro se petition raising an ineffective assistance of counsel claim

. [At a hearing the PCRA court conducted ] on April 28, 2017, McAfee was colloqu[i]ed and [he] waived th e ineffectiv eness claim [he] raised i n [his April 5, 2017] amended pro se petition and proceeded w ith the sentencing claim [Attorney Lin] raise d i n the [counseled August 18, 2016 ] petition. On May 31, 2017, [the PCRA court held] an evidentiary hearing [] on the sente ncing claim and [] found that the terms of [McAfee ] ’s 2012 negotiated sentence could n o t be effectuated due to federal guidelines. T hereafter, in order to resolve the issue, [the parties] negotiated a new sentence[ , which the PCRA] court imposed [] on June 7, 2017. [McAfee did not file a direct appeal.]
On June 26, 2018, McAfee filed the instant PCRA petition pro se , raising the ineffective assistance of counsel claim [he] previously waived on April 28, 2017. [ Dol o res ] Bojazi, Esquire [,] was appointed [as] new PCRA counsel on J anuary 17, 2019. 1 McAfee’s pro se PCRA petition was amended by [Attorney] Bojazi on March 14, 2019, wherein she adopted the aforementioned claim previously waived. On April 10, 2019, th[e P CRA] court issued aJ

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Pa .R.Crim.P. [] 907 notice of [its] intent to dismiss the [petition] as meritless[ , and] dismissed [it] on May 10, 2019. On May 20, 2019, [the PCRA court held] a Grazier hearing [] and [McAfee] was permitted to proceed pro se on appeal . McAfee filed a notice of appeal on May 22, 2019.

1 In accordance with Commonwealth v. Kelsey , 206 A.3d 1135, 1139 (Pa. Super. 2019) [ ( “A convicted defendant has a right . . . to the assistance of counsel on a first PCRA petition.” )], McAfee was not enti tled to a new appointed PCRA counsel [on his subsequent petition because the court previously ] appointed [Attorney Server] on December 12, 2013 [to represent McAfee on his first petition ]

. Trial Court Opinion, 8/12/19, at 1

- 3.

On appeal, McAfee presents the following issue for our review:

“Whether the PCRA court erred by concluding that [McAfee] was not entitled

to counsel[,] erroneously concluding that this was [McAfee’s] second PCRA

[petition, rather than his] first[, as it ] challeng[es] the new judgme nt entered

on June 7, 2017, as the prior judgment was a nullity due to breach of

contract ? ” Appellant’s Brief, at 5 (unnecessary capitalization omitted)

. In argu ing that the issue raised in his first petition

— filed by Attorney Lin

on August 18, 2016

— was n ot cognizable under the PCRA, and that his petition

was therefore not a PCRA petition, McAfee relies on this Court’s decision in

Commonwealth v. Partee , 86 A.3d 245 (Pa. Super. 2014) , abrogated on

other grounds as recognized by Commonwealth v. Fernandez , 195 A.3d

299, 301 (Pa. Super. 2018). See Appellant’s Brief, at 10

- 11. In Partee , we

found that the Appellant’ s petition seeking specific performance of a plea

agreement sought a type of relief that was “not cognizable under the PCRA

and that it was error [for the trial court] to treat it as such .” Id. at 246. InJ

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comi ng to this conclusion, we noted that , when compared to the PCRA’s

statutory bases for seeking relief, as set forth in section 9543 (a) (2), the

Appellant ’s petition wa s neither an attack on his sentence nor an allegation of

innocence, nor did his sentence result from a constitutional violation ,
ineffective assistance of counsel, an unlawfully

- induced plea, government

obstruction, an illegal sentence, or lack of jurisdiction , nor did he offer any
newly

- discovered evidence

. Id. at 247. As such, the petition at issue in

Partee was not subject to “the standard applicable to the dismissal of PCRA

petitions .” Id.

Here, McAfee’s August 18, 2016 second amended petition alleged : [McAfee] was deprived of effective a ssistance of counsel when trial counsel negotiated a guilty plea agreement that was legally impossible to implement

. Under the plea agreement, [McAfee] ’ s sentence was to run concurrently with a previously imposed federal sentence of 37 months’ imprisonment. However, . . . it is impossible for [McAfee] to serve the instant sentence concurrently with his federal sentence. Thus, the inaccu rate advice of counsel rendered [McAfee] ’s guilty plea involuntary and unknowing

.

Second Amended Counseled Petition for Post

- Conviction Relief Pursuant to 42

Pa.C.S.A. § 9543 and Memorandum of Law, 8/18/16, at 2

- 3 (emphasis

added)

. Here, McAfee’s second amended petition , filed by Attorney Lin on August

18, 2016, alleged in effective ass istance of counsel and attacke d the legality

of his sentence and the voluntariness of his plea . As such, his claim s were
cognizable under the PCRA. See Commonwealth v. Jones , 932 A.2d 179,

182 (Pa. Super. 2007) (“ [W]hen a petitioner files an untimely PCRA petitionJ

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raising a legality

- of

- sentence claim, the claim is not waived, but the

jurisdictional limits of the PCRA itself render the claim incapable of review. ”);

Commonwealth v. Fahy , 737 A.2d 214, 223 (Pa. 1999) ( legality of sentence

always review abl e under PCRA , but subject to PCRA ’ s time limits and

exceptions ); see also 42 Pa.C.S.A. § 9543(a)(2) ; cf. Partee , supra at 247

( “We note that the within petition is not an attack on Appellant’ s sentence . .

. Appellant is not asserting that his conviction o r sentence resulted from

. . .

in effective assistance of counsel[.]” )

. Indeed, beyond the simple fact that the

second amended petition stated cognizable claim s under the PCRA

— which the

PCRA court granted

— McAfee’s petition header additionally stated that it was

filed as a PCRA petition , and pursuant to the PCRA. See Second Amended

Counseled Petition for Post

- Conviction Relief Pursuant to 42 Pa.C.S.A. § 9543

and Memorandum of Law, 8/18/16. Therefore, this claim is meritless.

McAfee argues alte rnatively, that because he was resentenced on June

7, 2017 , and he did not file a direct appeal, he had until July 7, 2018 to file a

timely PCRA petition , see 42 Pa.C.S. A. §§ 5571 (b), 9545(b), making his J une

26 , 2018 pro se PCRA filing his “ first challeng ing that judgment. ” Appellant’s

Brief, at 11; see also Appellant’s Reply Brief, at 3.

Nevertheless, this Co urt has directly addressed the issue of “subsequent

petitions” filed under the PCRA following a grant of relief on a successful PCRA

petition :

a successful first PCRA petition does not “ reset th e clock” for the calculation of the finality of the judgment of sentence for purposes of the PCRA where the relief granted in the first petition neitherJ

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restored a petitioner ’ s direct appeal rights nor distu rbed his conviction, but, rather, affected his sentence only. We reached this conclusion because the purpose of the PCRA is to prevent an unfair conviction.

Commonwealth v. McKeever , 947 A.2d 782, 785 (Pa. Super. 2008) (citing

Commonwealth v. Dehart , 730 A.2d 991, 994 n.2 (Pa. Super. 1999)).

Here, the court granted McAfee’s relief from his first PCRA petition, see

Second Amended Counseled Petition for Post

- Conviction Relief Pursuant to 42

Pa.C.S.A. § 9543 and Memorandum of Law, 8/18/16. The court’s reli ef

a ffected McAfee’s sentence only, see McKeever , supra , as he w as
resentenced because the PCRA court “found that the terms of [McAfee]’s 2012

negotiated sentence could not be effectuated due to federal guidelines.” Trial

Court Opinion, 8/12/19, at 2; see also Order of Sentence, 6/7/17. Therefore,

McAfee’s instant PCRA filing , his first one ma de subsequent to his

resentenc ing , was not a first petition under the PCRA, but rather , was a
subsequent petition. McKeever , supra

. McAfee argues , again in the alternative , that the PCRA court should have

appointed counsel pursuant to Pennsylvania Rule of Criminal Procedure 904.

See Commonwealth v. Smith , 818 A.2d 494, 497 (Pa. 2003) ( counsel

should be appointed in every case where defendant filed first PCRA an d cannot

afford or otherwise procure counsel ; h owever, R ule 904 limits appointment of

counsel on second or subsequent petitions so counsel should be

appointed only if court, in its discretion, determines evidentiary hearing is

required in interests of just ice ). Subpart D of Rule 904 states: “On a second

or subsequent petition, when an unrepresented defendant satisfies the judgeJ

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that the defendant is unable to afford or otherwise procure counsel, and an

evidentiary hearing is required as provided in Rule 90 8, the judge shall appoint

counsel to represent the defendant.” Pa.R.Crim.P. 904(D). Additionally

subpart E states: “The judge shall appoint counsel to represent a defendant

whenever the interests of justice require it. ” Pa.R.Crim.P. 904(E).

Here, McA fee has failed to meaningfully develop his argument under

subpart D, see Appellant’s Brief, at 11, likely because his claims did not

require an evidentiary hearing. See infra , n.1; s ee also Pa.R.Crim.P.

904(D). Undeveloped claims on appeal are waived. See Commonwealth v.

Clayton , 816 A.2d 217, 221 (Pa. 2002) (“ [I]t is a well settled principle of

appellate jurisprudence that undeveloped claims are waived and unreviewable

on appeal.”).

Under subpart E, McAfee argues that because he identified a s a witnes s

P rivate Investigator Richard Strohm, for whom the court granted McAfee fees

to pursue his claim on May 1, 2019 , the court’s findings “were not supported

by the record and not free of legal error.” Appellant’s Brief, at 11.

Nevertheless, we are unconvin ced that the trial court abused its

discretion in determining that the interests of justice did not require

appointment of counsel since McAfee had already waived the single claim

raised in the subject PCRA petition , under the advice of counsel

. 1 See Smith ,

_________________ __________ ______ ____ _______

1 At the April 28, 2017 hearing, the PCRA court colloquied McAfee as follows:J

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_________________ __________ ______ ____ _______
Court : It would be in everyone’s best interest if you would state for the record what claims you are prepared to litigate on his behalf and wha t claims you feel are frivolous or inappropriate.
[Attorney] Lin: I will be pursuing, because I think they’ re
m eritor ious, the claims that Mr. McAfee’ s guilty plea was not voluntary becau se he was promi sed a certain sentence that was either imposs ible to implement or illegal to implement.

Court : Do you understand that, sir?
[ McAfee] : Yes.

Court : That was the claim adv anced on your beha lf by Ms. Lin in her pleadings. Is that a fair statement, ma’ am?
[ Attorney] Lin : Yes.

Court : You understand that?
[ McAfee] : Yes.

Court : Would you state for the record the claim s that you will not be pursuing[?]
[Attorney] Lin : I wil l not be pursuing a claim that Mr. McAfee received ineffective assistance of counsel an d was prejudiced by ineffective assistance of c ounsel when he was not informed by trial

counse l that he had the right to file a petition for r eview after his double jeop ardy motion to dismiss was denied.

Court : First of all, Mr. McAf ee, did you hear what [Attorney Lin] said?
[McAfee] : Yes.

Court : Having heard what she sa id, did you understand what she said?
[McAfee] : Yes.

Court : Having heard what she said, are you in agreement that that claim will be abandoned and not raised on your behalf?
[McAfee] : Yes, I understand.J

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_________________ __________ ______ ____ _______
Court : [O] nce you have abandoned t hat claim, which was not raised by your attorney but was rai sed by you [,]

. . . you cannot later raise [it] at a future date. Do you understand?
[McAfee] : Yes.

Court : Now, knowing everything th at we have just advanced and/or placed on this record, are you, ne vertheless, in agreement to have Ms. Lin represent you knowing that she wi ll not raise that second claim which you raised regarding the failure of your previous attorney to file a petition to have the Superior Court hear the issue regarding the trial cou rt’s determination that your motion for double jeopardy was frivolous?
[McAf ee] : Yes, I understand.

Court : Did anyone promise, forc e, or threaten you to make your decision?
[McAfee] : No.

Court : This is your decision made of your own free will?
[McAfee] : Yes.

Court : Have you discussed this with your attorney?
[McAfee] : Yes.

Court : Are you satisfied with her services?
[McAfee] : Yes.

N.T. Hearing, 4/28/17, at 11

- 14 (unnecessary capitalization omitted)

. Here, the record reflects that McAfee knowingly and vo luntarily waived the single claim he now seeks to raise in the subject PCRA petition. The PCRA court properly dismissed this waived claim

. See Commonwealth v. Jones , 932 A.2d 179, 181 (Pa. Super. 2007) (“ On appeal from the denial of PCRA relief, an appellate court’ s standard of review is whether the ruling of the PCRA cour t is free of legal error and supported by the record. ” ) ; id. (“ In order to be eligible for relief under the PCRA , the err or asserted must not have been previously litigated or waived .”); 42 Pa.C.S.A. § 9543(a)(3)

.J

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supra ; s ee also Commonwealth v. English , 699 A.2d 710, 713 (Pa. 1997)

( abuse of discretion standard of review for interest of justice deter minations).

Order a ffirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/2 6 /21

_________________ __________ ______ ____ _______ Finally, McA fee argues that pursuant to the decisions in Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) ( established procedure for withdrawal of court

- appointed counsel in collateral attacks on criminal convictions), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc) (same) , A ttorney Lin was required to “explain [her] reasons for not raising [McAfee’s] claim,” and that Attorney Lin’s statement above was insufficient

. See Appellant’s Brief at 11; see also Appellant’s Reply Brief, at 2. We note that those cases apply when “PCRA counsel seeks to withdraw on the ground that the issues raised by the petitioner are without merit.” Kelsey , supra at 1139. Here, Attorney Lin did not seek withdrawal ; therefore, we find the Turner / Finley requirements ina ppl icable

. Additionally, no relief is due under an ineffectiveness of counsel theory since McAfee has not alleged or proven prejudice. S ee Commonwealth v. Rosado , 150 A.3d 425, 436 (Pa. 2016) ( r equiring demonstration of prejudice to defendant for successful claim of ineffective assistance of counsel when counsel only “narrowed the ambit ” of appellate review rather than for eclosed appe l late review entirely ).