J-S52019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KENDALL WILLIAMS,

Appellant No. 2194 EDA 2012

Appeal from the PCRA Order July 10, 2012

In the Court of Common Pleas of Montgomery County

Criminal Division at No: CP-46-CR-0007004-2005

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,*JJ. 

MEMORANDUM BY STABILE, J.: FILED DECEMBER 22, 2016

Appellant, Kendall Williams, appeals pro se from the July 10, 2012 

order entered in the Court of Common Pleas of Montgomery County (“PCRA 

court”) denying relief under the Post-Conviction Relief Act (“PCRA”), 

42 Pa.C.S.A. §§ 9541-46. Appellant raises five issues on appeal. Upon 

review, we affirm.

The PCRA court summarized the factual and procedural history as 

follows.

On July 9, 2007, Appellant appeared before the Honorable 

Paul W. Tressler and entered into an open guilty plea to 

attempted murder and possessing an instrument of crime. All 

remaining counts were nolle prossed. On October 12, 2007, 

Judge Tressler imposed a seventeen and one-half (171⁄2) to 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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thirty-five (35) year sentence, with a five (5) year consecutive 

probation [sentence]. Appellant, through counsel, filed a 

“Petition to Reinstate Appellate Rights Nunc Pro Tunc” on July 

15, 2008. Appellant’s sentence was affirmed through a Superior 

Court order dated June 26, 2009.

On May 26, 2010, Appellant filed a [m]otion for [p]ost-

[c]onviction [c]ollateral [r]elief, in which he alleged both trial 

counsel’s (John Armstrong) and appellate counsel’s (Bonnie-Ann 

Brill Keagy) ineffectiveness prejudiced him. On June 2, 2010, 

Judge Tressler appointed James Tone, Esquire to represent 

Appellant in this matter. On August 17, 2010, Judge Tressler 

entered an order granting Attorney Tone an additional thirty 

days to review the record or file an amended petition. From [the 

PCRA court’s] review of the record, it seems that Appellant then 

filed a complaint against Attorney Tone with the Disciplinary 

Board and the matter was placed on hold. Attorney Tone filed a 

detailed “no merit” letter, dated January 17, 2012, pursuant to 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) as 

well as a petition to withdraw as counsel, stating that in his 

opinion [Appellant] is not entitled to relief under the PCRA. 

Following the [PCRA court’s] independent review of the record, 

[the PCRA court] concurred with Attorney Tone’s review of the 

case. However, it was [the PCRA court’s] belief that there may 

have been some merit as to the limited issue of [Armstrong’s] 

alleged failure to call character witnesses at Appellant’s 

sentencing. Through an order dated March 2, 2012, [the PCRA 

court] required Attorney Tone to file an amended petition on this 

issue only and the Commonwealth to thereafter file a response. 

After considering both documents, [the PCRA court] concluded 

that the issue was meritless, there were no genuine issues of 

material fact, that [Appellant’s] PCRA petition should be 

dismissed without a hearing and consequently entered its 907(1) 

Notice on April 3, 2012.

On May 9, 2012, the [PCRA court] received Appellant’s 

response to its 907(1) Notice, which prompted the [PCRA court] 

to have a limited evidentiary hearing on July 3, 2012 regarding 

the issue of Appellant’s request for petition for allowance of 

appeal. After receiving all documents regarding the issue, the 

[PCRA court] found the issue was meritless and issued its [f]inal 

[o]rder of [d]ismissal on July 10, 2012.
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PCRA Court Opinion, 8/28/2012, at 1-2 (footnotes omitted). Appellant filed 

the instant appeal on August 7, 2012 and a 1925(b) statement on August 

27, 2012. The PCRA court filed a 1925(a) opinion on August 28, 2012.1

Appellant raises five issues on appeal that this Court quotes verbatim.

I. Whether the PCRA Court erred in denying appellant relief 

for being sentenced by the [PCRA] court within the 

aggravated range of the guidelines and enhanced on the 

basis of charges that were (nolle prossed) dismissed and 

sentenced excessively beyond fundamental norms and 

predicated on improper factors while discarding remorse 

and penalized for a statutorily reiterated allocution.

II. Whether the PCRA Court erred in denying [A]ppellant relief 

for being sentenced by the [PCRA] court for misapplication 

of the sentencing guidelines in computing the OGS and 

PRS to sentence on the crime alone.

III. Whether the PCRA Court erred in denying [A]ppellant’s 

“Motion for Change of Appointed PCRA Counsel” subject to 

meritorious “Office of Disciplinary Counsel” (ODC) claims 

for subverting appellate relief by unilaterally amended 

PCRA Petition coupled with ineffectiveness of self and trial 

counsel.

IV. Whether the PCRA Court erred in denying appellant relief 

for failing to find trial counsel ineffective in trial and 

sentencing matters individual and cumulative coupled with 

preoccupation of undisclosed serious personal issues while 

not objecting to appellant’s prejudicial and error plagued 

PSI, misrepresenting an involuntary, unknowing, and/or 

unintelligent plea agreement with stand mute provision 

and Sixth Amendment Constitutional witness crossexamination violations, illegal mandatory minimum notice, 

and contrary to specific requests of record failure to 

____________________________________________

1 This matter languished in this Court for four years because Appellant filed 

numerous applications for relief and motions for reconsideration from the 

denial of those applications. 
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provide critical expert and character mitigation witnesses, 

denied pursuit of forensic defense option recommended by 

approved experts and failure to file post-sentencing 

motions. 

V. Whether the PCRA Court erred in denying [A]ppellant relief 

for failing to find direct [appeal] counsel ineffective for 

improper pursuit of post sentencing motions, discretionary 

sentencing including ineffectiveness of trial counsel and for 

not pursuing claims and/or seeking “Petition for Allowance 

of Appeal” (PAA) in the PA Supreme Court.

Appellant’s Brief at 20-21. 

Appellant’s first two issues are challenges to the discretionary aspects 

of sentencing, namely Appellant asserts that he was sentenced in the 

aggravated range. A challenge to the discretionary aspects of sentencing is 

not a cognizable claim under the PCRA. See Commonwealth v. Fowler, 

930 A.2d 586, 593 (Pa. Super. 2007) (citations omitted); 42 Pa.C.S.A. 

§ 9543. A challenge to the legality of sentence is a cognizable claim under 

the PCRA; however, Appellant is not asserting that his sentence is illegal. 

Appellant’s first two claims are not cognizable under the PCRA; therefore, 

Appellant’s claims fail. Additionally, Appellant’s second claim was not raised 

in his 1925(b) statement; therefore, Appellant’s claim is waived. See 

Pa.R.A.P. 1925(b)(4)(vii).

Appellant’s third claim asserts the PCRA court erred when it denied 

Appellant’s motion for change of appointed PCRA counsel. Appellant’s 

argument is disjointed and unclear; however, as far as this Court can 

discern, Appellant is claiming that Attorney Tome filed a Turner/Finley

letter in retaliation for Appellant filing a complaint against Attorney Tome 
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with the Pennsylvania Disciplinary Board. Upon our review of the record, 

Attorney Tome filed the Turner/Finley letter prior to Appellant requesting 

new PCRA counsel. Moreover, Appellant consented to Attorney Tome 

representing him at the July 3, 2012 evidentiary hearing. This hearing 

occurred after Attorney Tome filed the Turner/Finley letter. Therefore, 

Appellant’s claim lacks merit as it has no support in the record.

Appellant’s fourth claim consists of numerous claims of ineffective 

assistance of counsel. A PCRA petitioner is entitled to relief if he pleads and 

proves that prior counsel rendered ineffective assistance of counsel. 

42 Pa.C.S.A. § 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a 

PCRA petitioner must plead and prove by a preponderance of the evidence 

that (1) the underlying legal claim has arguable merit; (2) counsel had no 

reasonable basis for acting or failing to act; and (3) the petitioner suffered 

resulting prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 

780 (Pa. Super. 2015) (en banc). “A petitioner must prove all three factors 

of the ‘Pierce[2]test,’ or the claim fails.” Id. “[O]n appeal, a petitioner 

must adequately discuss all three factors of the ‘Pierce’ test or the appellate 

court will reject the claim.” Id.

As far as this Court can discern, Appellant asserts that trial counsel 

was ineffective for 1) being preoccupied with a serious family illness, 2) 

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2 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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failing to object to the veracity of the PSI, 3) failing to follow an open-plea 

agreement, 4) failing to object to a mandatory minimum sentence, 5) failing 

to call a character witness at sentencing, and 6) failing to file post-sentence 

motions. Appellant failed to address the second and third prongs of the 

Pierce test for any of these allegations; therefore, Appellant’s claims of 

ineffective assistance of counsel fail. 

Finally, Appellant asserts that direct appellate counsel was ineffective 

for failing to raise a claim of ineffective assistance of trial counsel on direct 

appeal. Appellant’s claim lacks merit as the “general rule of deferral to PCRA 

review remains the pertinent law on the appropriate timing of review of 

claims of ineffective assistance of counsel.” Commonwealth v. Holmes, 

79 A.3d 562, 563 (Pa. 2013). There are only two exceptions to Holmes. 

The first is when the claim is both meritorious and apparent such that 

immediate consideration or relief is warranted. Id. at 577. The second 

applies only when there are multiple claims of trial counsel ineffectiveness 

and the defendant expressly waives PCRA review. Id. at 563-64. Appellant 

failed to establish that either of these circumstances existed; therefore, 

direct appellate counsel could not have been ineffective for failure to raise 

ineffectiveness claims on direct appeal. Appellant’s claim fails.
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As all of Appellant’s claims lack merit,3 we find the PCRA court properly 

dismissed Appellant’s PCRA petition.

Order affirmed. Application for relief denied.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/22/2016

____________________________________________

3 Appellant filed an application for relief seeking permission to file a reply 

brief that exceeds the page limit and an extension of time to file such brief 

on November 3, 2016. In light of the foregoing, Appellant’s application is 

denied.