Com. v. Glendye, J.

J-S11033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JOSHUA DAVID GLENDYE, :

:

Appellant : No. 354 MDA 2014

Appeal from the PCRA Order entered on January 20, 2014

in the Court of Common Pleas of Lebanon County,

Criminal Division, No(s): CP-38-CR-0000294-2008;

CP-38-CR-00000353-2008

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 27, 2015

Joshua David Glendye (“Glendye”) appeals from the Order dismissing

his first Petition for Relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 Additionally, counsel for Glendye has filed a Petition to Withdraw

from representation, pursuant to the dictates of Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

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42 Pa.C.S.A. §§ 9541-9546.

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A.2d 213 (Pa. Super. 1988) (en banc).2 We grant counsel’s Petition to

Withdraw and affirm the Order dismissing Glendye’s PCRA Petition.

In its Opinion, the PCRA court set forth the relevant history underlying

the instant appeal, which we adopt as though fully stated herein. See PCRA

Court Opinion, 1/21/14, at 2-5.

After the bifurcated PCRA hearing, the PCRA court dismissed Glendye’s

Petition. Thereafter, Glendye filed the instant timely appeal. Glendye’s

counsel has filed a Petition to Withdraw from her representation of Glendye,

and an “Anders” Brief raising the following claims for our review:

A. Whether [Glendye’s PCRA] Petition was timely filed?

B. Whether [Glendye] is entitled to relief under the PCRA [] on

the basis that he was deprived of effective assistance of

counsel because his [plea c]ounsel, Attorney Allan Sodomsky,

failed to petition the Court to transfer [Glendye’s] case to

juvenile court?

“Anders” Brief at 4.

Our standard and scope of review are well-settled:

We review an order dismissing a petition under the PCRA in the

light most favorable to the prevailing party at the PCRA level.

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

evidence of record. We will not disturb a PCRA court’s ruling if

2

Counsel submitted a brief in the nature of an Anders brief. See Anders

v. California, 386 U.S. 738, 744 (1967) (setting forth the requirements

appointed counsel must satisfy to withdraw from representation during

direct appeal). Where counsel seeks to withdraw on appeal from the denial

of PCRA relief, a Turner/Finley “no-merit letter” is the appropriate filing.

However, “[b]ecause an Anders brief provides greater protection to a

defendant, this Court may accept an Anders brief in lieu of a

Turner/Finley letter.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2

(Pa. Super. 2011) (citation omitted).

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J-S11033-15

it is supported by evidence of record and is free of legal error.

This Court may affirm a PCRA court’s decision on any grounds if

the record supports it. We grant great deference to the factual

findings of the PCRA court and will not disturb those findings

unless they have no support in the record. However, we afford

no such deference to its legal conclusions. Further, where the

petitioner raises questions of law, our standard of review is de

novo and our scope of review is plenary.

***

The Turner/Finley decisions provide the manner for post-

conviction counsel to withdraw from representation. The

holdings of those cases mandate an independent review of the

record by competent counsel before a PCRA court or appellate

court can authorize an attorney’s withdrawal. The necessary

independent review requires counsel to file a “no-merit” letter

detailing the nature and extent of his review and list each issue

the petitioner wishes to have examined, explaining why those

issues are meritless. The PCRA court, or an appellate court if

the no-merit letter is filed before it, … then must conduct its own

independent evaluation of the record and agree with counsel that

the petition [or appeal] is without merit. . . .

Commonwealth v. Rykard, 55 A.3d 1177, 1183-84 (Pa. Super. 2012)

(some citations and footnote omitted).

Here, counsel has filed a Petition to Withdraw detailing the nature and

extent of counsel’s independent review, listing the issues that Glendye

wished to raise, and explaining why the issues lack merit. Counsel has

fulfilled the procedural requirements of Turner and Finley. Accordingly, we

next independently evaluate the record to determine whether the appeal is

without merit.

In this case, the PCRA court dismissed Glendye’s PCRA Petition as

untimely filed. A PCRA petition must be filed within one year of the date the

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petitioner’s judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(3).

The one-year time limitation is jurisdictional and a PCRA court has no power

to address the substantive merits of an untimely petition. Commonwealth

v. Abu-Jamal, 833 A.2d 719, 723-24 (Pa. 2003); Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). The PCRA provides three

exceptions to the one-year filing requirement: newly-discovered facts;

interference by a government official; and a newly-recognized constitutional

right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition asserting one of these

exceptions must also establish that the exception was raised within 60 days

of the date the claim could have been first presented. 42 Pa.C.S.A.

§ 9545(b)(2). “As such, when a PCRA petition is not filed within one year of

the expiration of direct review, or not eligible for one of the three limited

exceptions, or entitled to one of the exceptions, but not filed within 60 days

of the date that the claim could have been first brought, the [PCRA] court

has no power to address the substantive merits of a petitioner’s PCRA

claims.” Gamboa-Taylor, 753 A.2d at 783.

Here, Glendye’s judgment of sentence became final in 2008, when the

trial court accepted Glendye’s negotiated guilty plea to two counts of

robbery,3 and sentenced Glendye to an aggregate prison term of 48 months

to 10 years. Glendye filed no appeal from his judgment of sentence. Thus,

Glendye’s PCRA Petition, filed in 2013, is facially untimely.

3

See 18 Pa.C.S.A. § 3701.

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J-S11033-15

In his Amended PCRA Petition, Glendye asserted the newly discovered

facts exception to the timeliness requirement. In support, Glendye argued

that his plea counsel rendered ineffective assistance by not informing him

that the charges could be transferred to juvenile court, and by failing to file

a petition to transfer the matter to juvenile court. Amended PCRA Petition,

7/31/13, at ¶¶ 3-4. Glendye claimed that “he became aware of this

procedure around the time he filed the PCRA Petition.” Id. at ¶ 6. Glendye

further claimed that “he was not able to discover this procedure because of

his age and educational background.” Id.

In its Opinion, the PCRA court addressed Glendye’s claim, and

concluded that Glendye failed to establish the newly discovered facts

exception to the PCRA’s timeliness requirement. See PCRA Court Opinion,

1/21/14, at 7. We agree with the sound reasoning of the PCRA court, and

affirm on this basis. See id. We additionally observe the following.

The PCRA court expressly credited the testimony of Glendye’s plea

counsel, who testified that he did not believe Glendye to be high or

intoxicated during any of his meetings with Glendye. Id. at 8. The PCRA

court further credited counsel’s testimony that he had informed Glendye of

the possibility of filing a motion to transfer, but advised Glendye of the

futility of filing such a motion. Id. We defer to the PCRA court’s credibility

determinations, as they are supported in the record. See Commonwealth

v. Spotz, 84 A.3d 294, 319 (Pa. 2014) (recognizing that on review, the

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appellate court “must defer to the PCRA court’s findings of fact and

credibility determinations, which are supported by the record.”).

Because Glendye failed to establish any exception to the PCRA’s

timeliness requirement, his PCRA Petition was time-barred and the PCRA

court lacked jurisdiction to entertain the Petition. Therefore, the PCRA court

properly dismissed Glendye’s Petition.

Based upon the foregoing, we agree with Glendye’s appellate counsel

that the instant appeal lacks merit. We therefore grant counsel’s Petition to

Withdraw, and affirm the Order of the PCRA court.

Petition to Withdraw granted. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/2015

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IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

CRIMINAL DIVISION - PCRA

COMMONWEALTH

OF PENNSYLVANIA

No. CP-38-CR-294-2008

No. CP-38-CR-353-2008

v.

JOSHUA DAVID GLENDYE

APPEARANCES:

Pier Hess, Assistant District Attorney For the Commonwealth

Elizabeth Judd, Assistant Public Defender For Joshua David Glendye

OPINION BY EBY, S.J., JANUARY 21 , 2014:

Before the Court is the Amended Petition of Joshua Glendye, Defendant, filed by

his court-appointed PCRA counsel pursuant to the Post Conviction Relief Act ("PCRA"),

42 Pa.C.S. §9541 et seq. The Defendant's Amended PCRA Petition argues he is

entitled to post-conviction relief on the basis that he was deprived of effective

assistance of counsel because his privately retained trial attorney failed to petition this

Court to transfer two adult armed robbery charges against him to juvenile court, as

authorized under 42 Pa.C.S.A. §6322. After a thorough review of the testimony and

evidence presented at a bifurcated PCRA hearing held on October 18 and October 24,

2013, the filings submitted by both parties, and the complete record of the case, we •

disagree. We will deny the relief sought by Defendant and dismiss his Petition.

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I. PROCEDURAL HISTORY

On February 29,2008, the Commonwealth filed Criminal Informations against the

Defendant alleging that he participated in two armed robberies of Lebanon County

convenience stores on January 23 and 24, 2008. At action number CP-38-CR-294-

2008, the Information alleges that the Defendant entered Top Star Express on January

23, 2008, and demanded money from the cash register while displaying a pistol. As a

result, he was charged with Robbery (18 Pa.C.S.A. §3701 (A)(1 )(ii)); Conspiracy to

Commit Robbery (18 Pa.C.S.A. §903); Simple Assault (18 Pa.C.S.A. §2701 (A)(3); and

Theft (18 Pa.C.S.A. §3921 (A). At action number CP-38-CR-353-2008, the Information

alleges that the Defendant entered the North Cornwall Township Sheetz on January 24,

2008, and demanded money from the cash register while displaying a semi-automatic

weapon. As a result, he was charged with Robbery (18 Pa.C.S.A. §3701 (A)(1 )(ii));

Conspiracy to Commit Robbery (18 Pa.C.S.A. §903); Simple Assault (18 Pa.C.S.A.

§2701 (A)(3); Conspiracy to Commit Simple Assault (18 Pa.C.S.A. §903); Theft (18

Pa.C.S.A. §3921 (A); and Conspiracy to Commit Theft (18 Pa.C.S.A. §903). The

Defendant was 17 years, nine months of ageon the dates the offenses were committed.

Attorney Allan Sodomsky was privately retained by the Defendant to represent

him on the charges. Attorney Sodomsky did not file a motion to transfer the charges

against the Defendant under 42 Pa.C.S.A. §6322(A), but instead pursued a negotiated

plea agreement with the Commonwealth. Under the plea agreement, the

Commonwealth agreed to drop the five year mandatory minimum on each armed

robbery and permit the Defendant to instead be sentenced to a minimum of 48 months

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to ten years on each robbery, with the Court to decide whether the sentences on each

action number would be consecutive or concurrent. On May 22, 2008, the Defendant

pleaded guilty pursuant to that negotiated plea agreement.

On July 2, 2008, this Court accepted the negotiated plea agreement and

sentenced the Defendant to concurrent sentences on both action numbers. Thus, in

addition to the imposition of fines and costs, the Defendant received an aggregate

prison term on both action numbers of 48 months to ten years. Immediately following

the imposition of sentence, the Court informed the Defendant of his right to appeal, and

the Defendant executed a post-sentence colloquy indicating the same. The Defendant

filed no direct appeal.

On June 10, 2013, the Defendant filed a pro se PCRA Petition alleging that this

Court had no jurisdiction to accept the Defendant's plea and sentence the Defendant,

because he was a juvenile at the time of the offenses with which he was charged. The

Petition argued the Commonwealth had improperly filed the charges directly in adult

court, without following the certification procedure specified in the Juvenile Act. On

June 13, 2013, this Court appointed the Public Defender as counsel for the Defendant

and issued a rule on the Commonwealth to show cause why a hearing should not be

held on the Defendant's Petition. On June 21, 2013, the Commonwealth filed its

response.

On July 10, 2013, we issued a detailed Order under Pa.R.Crim.P. 907(1)

indicating our intention to dismiss the Defendant's pro se Petition without a hearing. Our

Order noted that the Defendant's Petition, filed almost five years after his judgment of

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sentence became final, was untimely under the timeliness requirements of 42 Pa.C.S.A.

§9545 (b)(3) and further did not plead any exceptions to those requirements. Therefore,

we found we had no jurisdiction to consider Defendant's claims for relief. Additionally,

our July 10 Order explained that, even had the Defendant's Petition been timely or

successfully pleaded one of the enumerated exceptions to the timeliness requirements

of the Act, the Defendant would not be entitled to relief on the underlying issue of his

Petition. We noted that the Defendant had been charged with and pleaded guilty to

Robbery charged as 18 Pa.C.S.A. §3701 (A)(1 )(ii), an offense which is expressly

excluded from those offenses defined as "delinquent acts" under the Juvenile Act. Since

we concluded as a matter of law that Defendant's charges were therefore appropriately

filed directly in the Court of Common Pleas, we found that the Defendant's Petition

raised no genuine issues of fact; that the Defendant was not entitled to relief; and that

no purpose would be served by any further proceedings. Indicating our intention to

dismiss the Defendant's Petition without a hearing, we afforded the Defendant twenty

(20) days to file either an amended PCRA Petition or a response to our Order

sufficiently pleading the factual and legal bases which entitled him to relief.

On July 31, 2013, the Defendant's appointed counsel filed an Amended PCRA

Petition. The Amended Petition pleaded the §9545(b)(1 )(ii) exception to the timeliness

requirements of the Act, alleging that the law and facts surrounding his ability to petition

the court to transfer his case to juvenile court were previously unknown to him and that

he could not have known their existence by the exercise of due diligence. As to the

underlying issue of the pro se Petition, the Defendant through counsel conceded that

the Robbery charges lodged against the Defendant were properly directly filed in the

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(

Court of Common Pleas; however, the Defendant argued that trial counsel was

ineffective for failing to file a motion to transfer the charges to juvenile court as

authorized by under 42 Pa.C.S.A. §6322.

On August 8, 2013, noting that the Amended Petition raised new issues not

addressed by the Commonwealth in its Response to the Defendant's pro se Petition, we

issued a new Rule upon the Commonwealth, affording it twenty days to respond to the

new allegations contained in the Amended Petition. On September 11, 2013, the

Defendant filed a Petition for a Hearing, because the Commonwealth had not filed a

Response to our Rule within 20 days. On September 12, the Commonwealth filed a

Response. On September 26, we issued an Order scheduling a PCRA hearing on the

Defendant's Amended Petition for October 15, 2013.

On September 26, 2013, the Commonwealth petitioned for a continuance of the

October 15, 2013 hearing due to scheduling conflicts. We granted the continuance, and

a bifurcated PCRA hearing was held on October 18 and 24,2013. 1

The Defendant's case is now ripe for our review.

II. Discussion

The Defendant's Amended Petition raises two potential issues for our review:

A. Has the Defendant successfully pleaded and proven an exception to the

timeliness requirements to the Post Conviction Collateral Relief Act; and

1We issued an Order rescheduling the hearing on the Defendant's Amended Petition for October 18, 2013.

Following that rescheduling Order, we learned that Attorney Sodomsky was unavailable to testify on that date. The

parties thereafter agreed to a bifurcated proceeding in which the Defendant would testify on October 18, 2013,

and Attorney Sodomsky would testify on October 24, 2013.

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B. If so, was trial counsel ineffective for failing to file a Motion to Transfer from

Criminal Proceedings to Juvenile Proceedings?

The resolution of both of those issues is at least partially dependent upon the testimony

adduced at the PCRA hearing regarding the discussions between the Defendant and

Attorney Sodomsky as they met and and reviewed the charges filed against the

Defendant.

A. Timeliness

The Defendant concedes that his original Petition, filed on June 10, 2013, is

untimely on its face. The PCRA requires that a petition seeking post-conviction

collateral relief must be filed within one year of the date that judgment becomes final. 42

Pa.C.S. §9545(b)(1). A judgment becomes final at the conclusion of direct review of at

the expiration of time for seeking the review. 42 Pa.C.S. §9545(b)(3). As noted above,

the Defendant was sentenced by this Court on July 2, 2008. From that date, he had 30

days to appeal his judgment of sentence. Because he did not file an appeal, his

judgment of sentence became final on August 1, 2008, and he had until August 1, 2009,

to file for relief under the PCRA. Thus, the Defendant's pro se petition filed on June 10,

2013, was clearly well outside the permitted timeframe.

The PCRA does enumerate three specific exceptions to that one year timeframe.

Those exceptions are:

(i) the failure to raise the claim previously was the result of interference by

government officials with the presentation of the claim in violation of the

Constitution or laws of this Commonwealth or the Constitution or laws of the

United States;

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(ii) the facts upon which the claim is predicated were unknown to the petitioner

and could not have been ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was recognized by the

Supreme Court of the United States or the Supreme Court of Pennsylvania after

the time period provided in this section and has been held by that court to apply

retroactively.

42 Pa.C.S.A. §9545(b)(1).

The Defendant's counseled Amended Petition asserts that the facts of his case

fulfill the second of the enumerated exceptions. It argues that the law and facts

surrounding the Defendant's ability to petition the court to transfer his case to juvenile

court were previously unknown to him and that he could not have known their existence

by the exercise of due diligence. Our review of the record of the case and the testimony

of the PCRA hearing persuades us that the Defendant is not entitled to the benefit of

this exception.

We begin by addressing the Defendant's claim that, at the time of his plea, he

was unaware of the statute permitting a juvenile to petition to transfer criminal

proceedings to the juvenile system, and he could not have discovered this procedure

within the timeframe provided by the PCRA because of his age and educational

background. We note first that we do not believe, as a matter of law, that the Defendant

has pleaded adequate facts to support the (b)(1 )(ii) exception. The Defendant's position

at the PCRA hearing was that he became aware of the possibility of a motion for

transfer nearly five years after his sentencing by talking with other inmates and looking

around in the prison law library. He failed to testify, however, as to how his age and

educational background precluded him from conducting that same search and having

those same conversations years before. Due diligence requires that Appellant take

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such steps to protect his own interests. Commonwealth v. Carr, 2000 PA Super 54,768

A.2d1164, 1168 (Pa. Super. 2001) We do not believe that the facts as alleged

establish the exercise of due diligence on Defendant's part. Nor do we believe that the

discovery of preexisting case or statutory law qualifies under this exception. See

Commonwealth v. Perry, 716 A.2d 1259, 1262 n.5 (Pa. Super. 1998).

We are also unpersuaded as to the veracity of the Defendant's testimony

regarding the factual claims underlying his argument. At the hearing on October 18, the

Defendant testified that, although confined at the Lebanon County Correctional Facility,

he was high each time he met with Attorney Sodomsky. Nonetheless, he specifically

remembers that Attorney Sodomsky never discussed with him the possibility of a motion

to transfer.

In direct conflict to the Defendant's testimony, Attorney Sodomsky testified that

he met with the Defendant on approximately five occasions. During none of those

meetings did he believe the Defendant was high or intoxicated. (N.T. 10/24/13 at 9-10)

Attorney Sodomsky further testified that, on January 31, 2008, he met with the

Defendant prior to the preliminary hearing and specifically discussed with him the

possibility of a motion to transfer at that time. (N.T. 10/24/13 at 6) He indicated that he

advised the Defendant against filing a motion to transfer because, in counsel's

professional opinion, such a motion would be futile, because the Defendant had

previously been in the juvenile system in Berks County; he had a prior juvenile record

for weapons offenses; and, since the Defendant was almost 18 at the time of offenses,

it would be difficult to persuade the Court that he would be amenable to treatment within

the juvenile system given the short period of time before his 21 st birthday. (N.T.

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10/24/13 at 7) Significantly, Attorney Sodomsky also testified that the Defendant told

him he didn't want to have anything to do with the juvenile system; he just wanted to go

to prison and do his time. (N.T. 10/24/13 at 8) The Defendant was focused instead on

his attorney negotiating as little time as possible on the charges within the adult system.

(N.T.10/24/13at8)

This Court found the testimony of Attorney Sodomsky to be both credible and

persuasive. Thus, as both a question of fact and a question of law, we find that the

Defendant has not successfully pleaded nor proven an exception to the timeliness

requirements of the PCRA. Therefore, this Court is without jurisdiction to consider

Defendant's claims for relief. Commonwealth v. Robinson, 575 Pa. 500, 837 A. 2d 1157,

1161 (2003).

B. Ineffectiveness of counsel

Even if we were to find that the Defendant had successfully pleaded and proven

an exception to the timeliness requirements of the Act, we would still deny relief on the

underlying issue of the Defendant's Petition-- counsel's alleged ineffectiveness for

failing to file a motion to transfer the proceedings to the juvenile system.

Trial counsel will always be presumed effective, and the Defendant bears the

burden of proving otherwise. Commonwealth v. Lewis, 708 A.2d 497, 500 (1988). To

prevail on a claim of ineffective assistance of counsel, a defendant must show that: his

claim was of arguable merit; there was no reasonable basis for counsel's conduct; and

counsel's conduct prejudiced the client. Commonwealth v. Johnson, 875 A.2d 328, 331

(Pa. Super. 2005). If a defendant fails to meet any of the prongs of the test, he is not

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,.

entitled to relief. Commonwealth v. Natividad, 595 Pa. 188, 938 A.2d 310 (2007). If a

defendant fails to demonstrate that the underlying claim is of arguable merit, the

ineffectiveness claim may be dismissed on that ground alone and it is not necessary to

consider the other two factors. Commonwealth v. DiNicola, 751 A.2d 197, 198 (Pa.

Super. 2000).

If a defendant's underlying claim is of arguable merit, then we must examine the

action chosen by trial counsel in order to ascertain if that action was designed to

effectuate the defendant's interest. DiNicola, 751 A.2d at 198. Worded differently,

counsel whose effectiveness is being challenged must have a reasonable basis for his

or her actions or failure to act. The fact that trial counsel's strategy may not ultimately

have led to an acquittal does not render the strategy legally deficient. Commonwealth v.

Spotz, 587 Pa. 1, 896 A.2d 1191 (2006). The Defendant must then establish that but

for counsel's deficient performance, the result of his trial would likely have been

different. DiNicola, 751 A.2d at 198.

The Defendant cannot meet his burden of proof on this issue for several reasons.

First, as noted previously, we find Attorney Sodomsky's testimony credible that the

Defendant told him not to file the motion to transfer, because the Defendant no longer

wanted anything to do with the juvenile system. Second, we are persuaded that, based

upon the stated wishes of the Defendant and the facts of both the Defendant's pending

criminal offenses and past juvenile history, counsel had a reasonable basis for believing

such a motion would be futile. Counsel's stated strategy of attempting instead to

persuade the Commonwealth to offer a negotiated plea agreement in which the

Commonwealth would waive the five year mandatory minimums on the armed robbery

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charges and permit the Defendant to argue for concurrent sentences on the two action

numbers was a reasonable one. Ultimately, although not necessary to prove counsel's

effectiveness, Attorney Sodomsky's strategy was successful. The Commonwealth

waived the mandatory minimums, and the Defendant received concurrent sentences on

the two action numbers. Finally, had Attorney Sodomsky filed a motion to transfer, we

do not believe that such a motion would have ultimately resulted in the Defendant's

charges being transferred to the juvenile system. The Defendant had a past juvenile

history involving firearms charges; his age left little time for treatment before age 21;

and the facts of the Defendant's pending charges were extremely serious. We do not

believe that such a motion would have been successful, and it is possible that, after

pursuing that motion without success, the Defendant's ability to pursue a favorable plea

agreement from the Commonwealth may have been compromised.

Therefore, even if we were to find that the Defendant had successfully

established an exception to the timeliness requirements of the PCRA, we would find

that he was not entitled to relief on the claim of ineffectiveness of counsel raised by his

Amended Petition. Accordingly, we will enter an Order denying relief and dismissing the

Petition before us.

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