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___________________________ *Former Justice specially assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

Appellee

v. CALVIN METZ Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3094 EDA 2015 Appeal from the PCRA Order October 2, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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BEFORE: GANTMAN, P.J., STABILE, J., and FITZGERALD, J.* MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 29, 2017 Appellant, Calvin Metz, appeals from the order entered in the Philadelphia County Court of Common Pleas, dismissing his first petition brought pursuant to the Post Conviction Relief Act (“PCRA”). 1 We affirm. The relevant facts and procedural history of this case are as follows. Appellant broke into his estranged wife’s house and removed approximately $6,585.00 worth of property. As a result, Appellant was arrested and charged with b urglary and related offenses. Appellant entered a negotiated guilty plea to burglary on September 8, 2010. That same day, the court sentenced Appellant to a term of one (1) to two (2) years’ imprisonment,

____________________________________________ 1 42 Pa.C.S.A. §§ 9541

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followed by a consecutive term of four (4) years’ probation. Appellant did not seek direct review. The court held a violation of probation hearing for Appellant on July 2, 2013. At the hearing, the parties stipulated that Appellant had failed to report for probation and changed his residence without notifying his probation officer. As a result, the court found Appellant in technical violation and revoked probation. On August 29, 2013, the court re

- sentenced Appellant to a term of five (5) to ten (10) years’ imprisonment for the burglary conviction. Appellant filed pro se post
- sentence motions, which the court denied. Appellant did not seek further direct review, and his judgment of sentence became final on September 28, 2013. Appellant timely filed a pro se PCRA petition on September 16, 2014, and an amended pro se PCRA petition on January 13, 2015. The PCRA court appointed PCRA counsel, who subsequently filed a motion to withdraw and Turner/Finley 2 no - merit letter on July 11, 2015. Appellant filed a pro se response on August 13, 2015. On Sep tember 4, 2015, the PCRA court issued notice of its intent to dismiss Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907. Appellant did not respond. The PCRA court denied relief and allowed counsel to withdraw on October 2, 2015. The PCRA court
appo inted Attorney Douglas Earl to represent Appellant on October 5, 2015.

____________________________________________ 2 Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) ( en banc )

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Appellant timely filed a notice of appeal on October 6, 2015. On October 9, 2015, the PCRA court ordered Appellant to file a concise statement of errors complained of on appeal per Pa .R.A.P. 1925(b). Appellant did not comply. On March 25, 2016, Appellant filed a “Motion for Remand” with this Court so he could file a Rule 1925(b) statement nunc pro tunc . This Court granted the motion on April 21, 2016, and directed Appellant to file a Rule 1925(b)
statement. On May 3, 2016, Appellant timely filed a counseled Rule 1925(b) statement and an amended Rule 1925(b) statement nunc pro tunc . In his amended Rule 1925(b) statement Appellant, for the first time, claimed: PCRA counsel was ineff ective for failing to request reinstatement of Appellant’s direct appeal rights nunc pro tunc so Appellant could challenge the discretionary aspects of his sentence; and the court relied primarily on Appellant’s prison tapes when it imposed an excessive se ntence, which overemphasized the need to protect the public and ignored Appellant’s rehabilitative needs. Appellant also claimed that he raised a meritorious sentencing issue in his PCRA petition. 3 Appellant presents one issue in his brief: DID THE [PC RA] COURT ERR BY RULING THAT ISSUES NOT RAISED IN THE RESPONSE TO THE RULE 907 NOTICE

____________________________________________ 3 Appellant challenged his August 29, 2013 judgment of sentence on several grounds in his PCRA petition, but his amended Rule 1925(b) statement fails to specify which sentencing issue he wanted to preserve.J

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- ARE WAIVED? (Appellant’s Brief at 3). Appellant argues this Court should address the issues Appellant raised in his amended Rule 1925(b) statement. Appellant baldly a sserts he did not waive these issues for appellate review. Regarding Appellant’s ineffectiveness of PCRA counsel claim, Appellant essentially avers this Court should not follow its decision in Commonwealth v. Smith , 121 A.3d 1049 (Pa.Super. 2015), appeal denied , 136 A.3d 981 (2016), which held that a petitioner’s failure to raise an ineffectiveness of counsel claim after receiving Rule 907 notice results in waiver of the claim. Appellant, however, fails to argue why this Court should abandon its decision in Smith and address the merits of this issue. Likewise, Appellant merely restates the sentencing issues from his amended Rule 1925(b) statement, but he does not provide any supporting argument. Appellant concludes this Court should address Appellant’s i ssues, vacate his judgment of sentence, and remand this case for a sentencing hearing. We disagree. Our standard of review of a grant or denial of a PCRA petition is limited to examining whether the evidence of record supports the court’s determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101 (Pa.Super. 2011), appeal denied , 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for thoseJ

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findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied , 593 Pa. 754, 932 A.2d 74 (2007). We exercise de novo review over the PCRA court’s legal conclusions. Commonwealth v. Spotz , 610 Pa. 17, 44, 18 A.3d 244, 259 (2011). A PCRA petitioner must plead and prove his allegation of error has not been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). “[A]n issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unita ry review, on appeal or in a prior state post

- conviction proceeding.” 42 Pa.C.S.A. § 9544(b). Where PCRA counsel seeks to withdraw from representation, the petitioner must preserve any challenge to counsel’s ineffectiveness in a response to counsel’s no

- merit letter or, if applicable, the court’s Rule 907 notice. See Commonwealth v. Pitts , 603 Pa. 1, 9 n.4, 981 A.2d 875, 880 n.4 (2009). A petitioner’s failure to raise an ineffectiveness of PCRA counsel claim after receiving Rule 907 notice results
in wa iver of the claim. Id. See also Commonwealth v. Ousley , 21 A.3d 1238, 1245 (Pa.Super. 2011), appeal denied , 612 Pa. 698, 30 A.3d 487 (2011) (stating Pitts prohibits this Court’s review of petitioner’s ineffectiveness of PCRA counsel claim, where issue wa s raised for first time in PCRA appeal). A claim that a sentence is manifestly excessive challenges the discretionary aspects of sentencing. Commonwealth v. Lutes , 793 A.2d 949 (Pa.Super. 2002). Objections to the discretionary aspects of sentenceJ

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are g enerally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Mann , 820 A.2d 788, 794 (Pa.Super. 2003), appeal denied , 574 Pa. 759, 831 A.2d 599 (2003). “Challenges to the discretionary aspects of sentencing are not cognizable under the PCRA.” Commonwealth v. Fowler , 930 A.2d 586, 593 (Pa.Super. 2007), appeal denied , 596 Pa. 715, 944 A.2d 756 (2008). In the instant case, Appellant timely filed a pro se PCRA petition on September 16, 2014, and an amended pro se PCRA petition on January 13, 2015. The PCRA court appointed PCRA counsel, who subsequently filed a motion to withdraw and Turner/Finley no - merit letter. Appellant responded to PCRA counsel on Au gust 13, 2015. On September 4, 2015, the PCRA court issued Rule 907 notice to Appellant. Appellant did not respond. The PCRA court denied relief and allowed counsel to withdraw on October 2, 2015. In his amended Rule 1925(b) statement, Appellant , for
t he first time, claimed: PCRA counsel was ineffective for failing to request reinstatement of Appellant’s direct appeal rights nunc pro tunc so Appellant could challenge the discretionary aspects of his sentence. Appellant did not raise this specific alleg ation of ineffectiveness of PCRA counsel in his August 13, 2015 response to counsel’s withdrawal petition or in response to the PCRA court’s Rule 907 notice. See Pitts, supra . Therefore, Appellant’s ineffectiveness of PCRA counsel claim is waived. See i d. ; Ousley, supra

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Appellant’s remaining arguments relate to his August 29, 2013 judgment of sentence, and it appears Appellant has abandoned these issues on appeal. Appellant’s sentencing claims are completely undeveloped and vague, consisting of a si ngle conclusory statement that Appellant did not waive these issues on appeal, which lacks any cogent nexus between relevant law and the facts of this case. Thus, Appellant waived his sentencing issues. See Commonwealth v. Johnson , 604 Pa. 176, 985 A.2d 915 (2009), cert. denied , 562 U.S. 906, 131 S.Ct. 250, 178 L.Ed.2d 165 (2010) (explaining appellant waives issue on appeal where he fails to present claim with citations to relevant authority or develop issue in meaningful fashion capable of review). 4
To t he extent Appellant claims the court relied primarily on Appellant’s prison tapes when it imposed an excessive sentence, his challenge implicates the discretionary aspects of sentencing. See Lutes, supra

. Appellant failed to raise this argument at the se ntencing hearing or in his motions to reconsider sentence. Instead, Appellant raised this issue for the first time on appeal in his May 3, 2016 amended Rule 1925(b) statement. Therefore, Appellant waived his excessive sentence claim on this ground as wel l. See Fowler, supra; Mann, supra

. Moreover, even if Appellant had properly preserved his issues on

____________________________________________ 4 Appellant waived his ineffectiveness of counsel claim on this ground also.J

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appeal, they would merit no relief and we would affirm based on the PCRA court opinions. ( See PCRA Court Opinions, filed March 15, 2016, at 1

- 3, and Se ptember 2, 2016, at 1

- 3) (finding: Appellant did not request direct appeal; court imposed sentence of five to ten years’ imprisonment after Appellant violated probation for burglary; burglary is first degree felony, which carries maximum penalty of twenty years’ imprisonment; including Appellant’s negotiated sentence of one to two years’ imprisonment, Appellant’s sentence is still within lawful maximum; Appellant’s Alleyne 5 challenge merits no relief because court did not impose mandatory minimum sentence; court properly considered Appellant’s recorded prison statements during sentencing hearing because statements were party admissions pursuant to Pa.R.E. 803(25); there were no genuine issues of fact which required evidentiary hearing). Accordingly, we affi rm. Order affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/29/2017

____________________________________________ 5 Alleyne v. U.S. , ___ U.S. ___, 1 33 S.Ct. 2151, 186 L.Ed.2d 314 (2013).Circulated 06/09/2017 09:59 AMCirculated 06/09/2017 09:59 AM