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- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ELIJAH JACKSON

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 994 EDA 2019
Appeal from the PCRA Order Entered March 22, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0005328

- 2011

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 10, 2020

Elijah Jackson (Appellant) appeals from the order dismissing his petition

filed pursuant to the Post Conviction Relief Act ( PCRA), 42 Pa.C.S.A. §§ 9541

-

9546

. We affirm.

The PCRA court detailed the procedural history that preceded this appeal

as follows :

On July 22, 2013, [Appellant] was found guilty following a jury trial of two (2) counts of aggravated assault. Appellant was convicted of assaulting a Philadelphia police officer who was in the process of assisting [A]ppel lant in retrieving his vehicle which had been towed and impounded. At trial, testimony revealed that [A]ppellant, who was upset that his vehicle had been towed, engaged in an altercation with the responding officers, striking one police officer with his c losed fist and pushing another violently to the ground. One of the responding officers [(Officer Ciarlante)] sustained a serious injury during the altercation with [A]ppellant, resulting in permanent hearing loss.

Prior to sentencing, th[e trial court] p ermitted [A]ppellant’s trial counsel

. . . to withdraw and appointed [Appellate Counsel] to represent appellant for purposes of sentencing and appeal. OnJ

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February 27, 2014, [A]ppellant was sentenced by th [e trial court] to an aggregate term of incarcerati on of seven (7) to twenty (20) years. Appellant filed a timely direct appeal to our Superior Court. [Appellate Counsel] then filed a Notice of Intent to file an Anders / McClendon [ 1 ] [brief] in lieu of a Statement of Errors averring that he had reviewed the entire record and found that there were no meritorious, non

- frivolous issues to raise on appeal. On September 2, 2014, th[e trial court] filed a 1925(a) opinion concurring with counsel’s determination that no meritorious issues were present for purpos es of direct appeal.

Thereafter, our Superior Court remanded this matter to this trial court to for purposes of conducting a Grazier [ 2 ] hearing. Th [e trial c ourt ] , following a Grazier hearing, permitted [A] ppellant to proceed on appeal pro se

. On March 16, 2016 [,] our Su perior Court affirmed [A]ppellant’ s judgment of sentence[e] and in so doing, rejected [A]ppellant’ s pro se claims of prosecutorial misconduct during the trial. Appellant did not seek further review by our Supreme Court.

On February 15, 2017, [A] ppellant filed a pro se petitio n seeking relief under the [PCRA.] In his timely PCRA petition, [A] ppellant contended that [Appellate Counsel] was ineffective for failing to file a Motion for Reconsideration of Sentence. Appellant further claimed that by failing to file this motion regarding the discretionary aspect of his sentencing, [Appellate Counsel] thus failed to preserve this claim for review on direct appeal.

. . .
On March 7, 2017, [PCRA Counsel] was appointed by th [e PCRA court] to represent [Appellant] for purposes of this PCRA matter. On June 1[8] , 2017, PC RA [C] ounsel filed with th [e PCRA court] a “no[

- ]merit” Finley letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) and Commonwealth v Finley
, 550 A.2d 213 (Pa. Su per. 1988). In PCRA [C] ounsel’ s Finley letter [,] he opined that all of [A]ppellant’ s claims of ineffectiveness against [Appellate Counsel] lacked merit. Further, PCRA [C] ounsel opined that there were no other meritorious clai ms which could be raised by [ A] ppellant.

_________________ __________ ______ ____ _______

1 Anders v. California , 386 U.S. 738 (1967); Commonwealth v. McClendon , 434 A.2d 1185 ( Pa. 1981)

.

2 Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998).J

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- Thereafter, on July 27, 2017, th [e PCRA court], after carefully reviewing [A]ppellant’ s petition, PCRA [C] ounsel’ s Finley letter, and independently reviewing the entire record, determined that [A]ppellant’ s petition was without merit and there fore issued a twenty (20) day Notice of Dismissal pursuant to Pa. R.Crim.P. 907. On August 3, 2017, [A] ppellant f iled a response to PCRA [C] ounsel’ s Finley letter. Thereafter, th [e PCRA court] held several hearings with [A] ppellant present via video. The reafter, after reviewing and considering all of the arguments and issues raised in [A]ppellant’ s petition, as well as counsel’ s Finley letter and [A]ppellant’ s response thereto, th [e PCRA court] , by Order d ated March 22, 2019, dismissed [A]ppellant’ s PCRA petition as without merit.

On March 26, th [e PCRA court] gr anted PCRA [C ounsel ’s] Motion for Leave to Withdraw and appointed [PCRA Appellate Counsel] to represent [A] ppellant for purposes of collateral appeal.

On April 2, 2019, [A] ppellant filed with our Superior Court a timely Notice of Appeal. On April 23, 2019 [A] ppellant filed his 1925(b) Statement of Matters Complained of on Appeal.

PCRA Court Opinion, 1/23/20, at 1

- 3 (some footnotes omitted).

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

Did the PCRA [c] ourt err and/or abuse its discretion when it denied and dismissed, without a hearing, [A ppellant ]’s petition under the PCRA where cou rt appointed PCRA [C] ounsel provided patently deficient representation b y relying, in his Turner/Finley Letter, upon decisional authority which is no longer valid or controlling, and where Pennsylvania law entitles an indigent defendant to the appointment of counsel to assist with his initial PCRA petition and that right incl udes the concomitant right to effective assistance of counsel?

Appellant’s Brief at 4 (footnote omitted).

We begin by “examining whether the PCRA court’s findings of fact are

supported by the record, and whether its conclusions of law are free from legalJ

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error.” Commonwealth v. Busanet , 54 A.3d 35, 45 (Pa. 2012). “Our scope

of review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the party who prevailed in the

PCRA court proceeding.” Id.

He re, Appellant argues that Appellate Counsel was ineffective because

he failed to file a post

- sentence motion challenging the discretionary aspects

of hi s sentence, thus precluding Appellant from raising the issue on direct

appeal. Appellant contends that the trial court abused its discretion because

the court imposed an aggravated

- range sentence without stating on the

record the specific reasons for the sentence

. Appellant further contends that

PCRA Counsel was ineffective for failing to pursue an ineffec tiveness claim

against Appellate Counsel on collateral review

. 3

Appellant presents a layered ineffective assistance of counsel claim.

With respect to ineffective ness claims, our Supreme Court has stated :

It is well

- settled that counsel is presumed to have been effective and that the petitioner bears the burden of proving counsel’s alleged ineffectiveness. Commonwealth v. Cooper
, 941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, a petitioner must establish that: (1) the underlying substantive claim has arguable merit; (2) counsel did not have a reasonable

_________________ __________ ______ ____ _______

3 In his no

- merit letter, PCRA Counsel averred that discreti onary aspects of sentencing claims are not cognizable under the PCRA. No

- Merit Letter, 6/18/17, at 2. As this Court has explained, however, claims implicating the discretionary aspects of sentencing raised in the context of an ineffectiveness claim are c ognizable under the PCRA. See Commonwealth v. Watson , 835 A.2d 786, 801 (Pa. Super. 2003) (“[A] claim regarding the discreti onary aspects of [the defendant’ s] sentence, raised in the context of an ineffectiveness claim, would be cognizable under the PCRA[.]”).J

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basis for his or her act or omission; and (3) the petitioner su ffered prejudice as a result of counsel’s deficient performance, “that is, a reasonable probability that but for counsel’s act or omission, the outcome of the proceeding would have been different.” Id. A PCRA petitioner must address each of these prongs on appeal. See Commonwealth v. Natividad , 938 A.2d 310, 322 (Pa. 2007) (explaining that “appellants continue to bear the burden of pleading and proving each of the Pierce elements on appeal to this Court”). A petitioner’s failure to satisfy any prong of this test is fatal to the claim. Cooper , 941 A.2d at 664.

Commonwealth v. Wholaver , 177 A.3d 136, 144 (Pa. 2018) (citations

modified).

Where a PCRA petitioner asserts a layered ineffectiveness claim, he or

she must argue each prong of the three

- prong ine ffectiveness test for each

separate attorney. Commonwealth v. Chmiel , 30 A.3d 1111, 1128 (Pa.

2011). We have explained:

Layered claims of ineffectiveness are not wholly distinct from the underlying claims, because proof of the underlying claim is an

esse ntial element of the derivative ineffectiveness claim

. In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel. If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue

.
Commonwealth v. Rykard , 55 A.3d 1177, 1190 (Pa. Super. 2012) (citations

omitted , emphasis added

.
As noted, Appellant’s layered ineffective assistance of counsel claim

relates to the discretionary aspects of his sentence. On direct appeal, “[t] he

right to appellate review of the discretionary aspects of a sentence is not

absolute, and must be considered a petit ion for permission to appeal.”J

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Commonwealth v. Buterbaugh , 91 A.3d 1247, 1265 (Pa. Super. 2014).

“ An appellant must satisfy a four

- part test to invoke this Court’s jurisdiction

when challenging the discretionary aspects of a sentence.” Id. We conduct

t his four

- part test to determine whether:

(1) the appellant preserved the issue either by raising it at the time of sentencing or in a post[

- ]sentence motion; (2) the appellant filed a timely notice of appeal; (3) the appellant set forth a concise statement of reasons relied upon for the allowance of his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial question for our review.

Commonwealth v. Baker , 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “ A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge , 77 A.3d 1263, 1268 (Pa. Super. 2013) ( citations

omitted).

It is well

- settled that a discretionary aspects of sentencing claim must

be preserved either at sentencing or in a post

- sentence motion before the trial

court. Commonwealth v. Baker , 72 A.3d 652, 662 (Pa. Super. 2013)

(citation omitted). With respect to a claim of ineffective assistance of counsel

regarding the failure to file post

- sentence motions , our Supreme Court has

stated:

[There is a] distinction between errors which complete ly foreclose merits review and those which merely “narrow its ambit.” Thus, [the Court] [has] held an attorney’s failure to file a post

- sentence motion preserving a particular sentencing claim “did not operate to entirely foreclose appellate review,” but merely “waive[d] thoseJ

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claims subject to issue preservation requirements which were not otherwise properly preserved.”

Commonwealth v. Rosado , 150 A.3d 425, 432 (Pa. 2016) (citation

omitted). “[C]ounsel’s failure to file post

- sentence motions [does] not fall

within the narrow ambit of ineffectiveness claims requiring no finding of

prejudice.” Commonwealth v. Corley , 31 A.3d 293, 296 (Pa. Super. 2011).

Thus, to obtain relief on his ineffectiveness claim, Appellant must demonstrate

that his sentence was ex cessive , such that counsel was ineffective in failing t o

file a post

- sentence motion. Id.

Appellant argues that the trial court abused its sentencing discretion

because i t imposed a n aggravated

- range sentence without stating specific

reasons on the recor d; this c laim raises a substantial question. See

Commonwealth v. Booze , 953 A.2d 1263, 1278 (Pa. Super. 2008) ( “[A] n

allegation that the court failed t o state adequate reasons on the record for

imposing an aggravated

- range sentence . . . raises a substant ial question for

our review.”). Accordingly, we turn to the merits of Appellant’s claim.

We note our standard of review :

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its ju dgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.J

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Commonwealth v. Horning , 193 A.3d 411, 418 (Pa. Super. 2018) (citation

omitted), appeal denied , 204 A.3d 370 (Pa. 2019).

Section 9721(b) of the Sentencing Code sets forth general sentencing

standards
, and provides:

(b) General standards.

— . . . the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. . . . In every case in which the court imposes a sentence for a felony or misdemeanor, modifies a sentenc e, resentences an offender following revocation of probation, county intermediate punishment or State intermediate punishment or resentences following remand, the court shall make as a part of the record, and disclose in open court at the time of sentencin g, a statement of the reason or reasons for the sentence imposed.

42 Pa.C.S.A. § 9721(b). Importantly, “[w]hen the court imposes an

aggravated or mitigated sentence, it shall state the reasons on the record[.]”

204 Pa.Code § 303.13(c).

In this case, the record belies Appellant’s claim. The trial court

articulated its reasons for Appellant’s aggravated

- range sentence on the

record as follows:

THE COURT: Thank you. I’ ve considered the presentence, the mental health, the prior record scor e, and the facts and circumstances of this case.

This is another case that never needed to happen be cause, as I understand it, if I’ m recalling this correctly, this happened at the impound lot and trying to get help for [Appellant] whose car had been towe d as abandoned.

* * *J

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THE COURT: And Officer Ciarlante actually, from the testimony I remember, was sort of going out of his way to try and see if he could help [Appellant] who was very frustrated by what happened, which is understandable when people’ s cars are towed.

But what happened to Officer Ciarlante, the fact th at I believe he’ s still hearing loud c onstant ringing in his ears, he’ s not sure when th at’ s going to ever go away. It could be a year, five years[

. ] He has two hearing aids, and he cont inues to have problems. He put it like sounds like a whisper of air coming in like out of a balloon as a result of his ear injuries.

And he had volunteered in the National Guard and also with the Lithuanian military, if I recall, in Afghanistan, but he w ill not be able to do any military work anymore. And hearing [his] has been lost from his left ear, and he’ s trying to use some kind of chips [ sic ] or something to adapt.

* * *

THE COURT: Okay. The damage that was do ne to him is

-- you know, there’ s a n aggravated assault where somebody gets hurt very badly, but they fully recover. And then there’ s an aggravated assault where they get hurt very badly, and they don’ t fully

recover. They get shot and they’ re paralyzed or, in this case, the injuries to his ears. And the damage to this officer for really no reason is not just that day and not just for a month or two but is unfortunately permanently, and I think that’ s what makes this an aggravated assault of a certain type versus another type where peopl e fully recover or their injuries are minimal.

I think, [Appellant] , you have, you know, you did have the aggravated assault a long time ago, and you lived otherwise, I think, arrest

- free. You walked off your parole. So you do know how to conform and ac t.

I don’ t know what happened that day, and it may have been that you were having a bad day. But your bad day caused the officer to have very serious permanent injuries, and that has to be taken into account at sentencing.

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- There’ s nothing that I can say because the whole thing is a tragedy, but the tragedy is that we now have another person who was just trying to do their job and, as a result of doing their job, sustained a very serious permanent injury that prevents them from doing their job agai n and, frankly, functioning like they would want to function, or any of us would, without hearing problems, without noise coming through our ears, and all the other problems. And that’ s the basis of the sentence along with the fact that you do know how to conform your co nduct, and it’ s a second aggravated assault causing you to go to state prison.

N.T., 2/27/14, at 9

- 13.

The record contradicts Appellant’s claim that the trial court did not place

t he reasons for Appellant’s aggravated

- range sentence on the record . To the

contrary, the court clearly conveyed the reasons for Appellant’s sentence

. As

Appellant ’s discretionary aspects of sentencing claim lacks merit, we likewise

conclude that Appellate Counsel was not ineffective for failing to file a post

sentence motion preserving the claim. See Wholaver , 177 A.3d at 144.

Further, because Appellate Counsel was not ineffective, PCRA Counsel was not

ineffective for failing to raise Appellate Counsel’s ineffectiveness on collateral

review. See Rykard
, 55 A.3d at 1190. Accordingly, the PCRA court did not

err in dismissing Appellant’s PCRA petition.

Order affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/10/2020