NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA Appellee v.
DENNIS FREDERICK MADDREY
Appellant No. 1548 EDA 2013 Appeal from the PCRA Order of May 20, 2013
In the Court of Common Pleas of Montgomery County Criminal Division at No.: CP-46-CR-0008761-2009
BEFORE: GANTMAN, J., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED APRIL 29, 2014
Dennis Frederick Maddrey (“Maddrey”) appeals, pro se, from the May 20, 2013 order dismissing his petition for relief pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm.
The PCRA court aptly has summarized the factual and procedural history of this case as follows:
[Maddrey] was convicted of six counts of criminal conspiracy, eight counts of robbery, [one count of] simple assault, eight counts of terroristic threats, seven counts of theft by unlawful taking[,] and [one count of] attempted theft[1] for his role in a string of armed robberies, which occurred in Cheltenham and Abington Townships, Montgomery County, [Pennsylvania] during August of 2009.
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On August 28, 2009, [Maddrey] was apprehended in Philadelphia County by Abington Township police after an attempted robbery. [Maddrey waived] his Miranda[2] rights and provided a voluntary statement to police. Police also executed a search warrant on [Maddrey’s] white conversion van used during the armed robberies.
On February 18, 2010, [Maddrey] filed a motion to suppress, which went to a hearing on December 12, 2010. After an extensive hearing, argument on the motion to suppress was held on December 13, 2010. At the conclusion of argument, [the trial court] placed its findings of fact and conclusions of law on the record and denied the motion.
On December 17, 2010, [Maddrey] proceeded to a stipulated bench trial and was found guilty of the aforementioned charges. On March 31, 2011, [Maddrey] was sentenced to an aggregate term of 20 to 40 years’ imprisonment. A petition to reconsider sentence was filed April 7, 2011, which was denied on April 18, 2011. A timely direct appeal was filed.
On June 29, 2012, the Pennsylvania Superior Court affirmed [Maddrey’s] judgment of sentence.[3 Maddrey’s] Petition for Allowance of Appeal was denied [by the Pennsylvania Supreme Court] on February 14, 2013.[4]
On February 25, 2013, [Maddrey] filed a timely first pro se PCRA petition, which is the subject of this appeal. Counsel was appointed to assist [Maddrey] with his petition. Determining that there were no meritorious issues to pursue, PCRA counsel filed a no-merit letter and requested permission to withdraw [pursuant to the Turner/Finley framework.5] Having reviewed [Maddrey’s] pro se PCRA petition and PCRA counsel’s no-merit ____________________________________________
2 See Miranda v. Arizona, 384 U.S. 436 (1966).
3 Commonwealth v. Maddrey, 53 A.3d 943 (Pa. Super. 2012) (table). 4 Commonwealth v. Maddrey, 63 A.3d 775 (Pa. 2013) (table).
letter, on April 29, 2013, [the PCRA court] issued a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907. The order notified [Maddrey] of [the PCRA court’s] intention to dismiss his PCRA petition without a hearing, informed [Maddrey] of his right to respond and permitted PCRA counsel to withdraw. On May 13, 2013, [Maddrey] filed a response to the pre-dismissal notice. Thereafter, [the PCRA court] issued a Final Order of Dismissal on May 30, 2013, which was erroneously dated May 29, 2013.
PCRA Court Opinion (“P.C.O.”), 6/28/2013, at 1-3.
On May 31, 2013, Maddrey filed a notice of appeal to this Court. On June 3, 2013, the PCRA court directed Maddrey to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 12, 2013, Maddrey timely complied. On June 28, 2013, the PCRA court issued a Rule 1925(a) opinion.
Maddrey raises three issues for our consideration:
1. Did [the] PCRA court err when it did not grant [Maddrey] his direct appeal rights following appellate counsel’s failure to properly brief and argue the direct appeal issues?
2. Was appellate counsel ineffective when he failed to include pertinent facts from the record / transcript to support [a] claim favorable to [the] defense that the Abington [Police Department] violated the Municipal Police Jurisdiction Act (MPJA 42 Pa.C.S. § 8953(a)(2))?
3. Did [the] trial court err when it sentenced [Maddrey] to an illegal sentence of 20 to 40 years, despite the plain language under the ‘Three Strikes Statute’ of 42 Pa.C.S. § 9714(a)(1) and 18 Pa.C.S. § 1103(1)?
Maddrey’s Brief at i.
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law to determine whether they are free from legal error.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citing Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)). “The 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 prevailing party at the trial level.” Id. (citing Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008)).
In its opinion, the PCRA court thoroughly and accurately disposed of Maddrey’s first claim. P.C.O. at 4-16. In that issue, Maddrey asserts that direct appellate counsel was ineffective because he failed to advance a claim that the police lacked probable cause or reasonable suspicion initially to detain Maddrey.6 Maddrey’s Brief at 6. In its opinion, the PCRA court ____________________________________________
6 Maddrey initially was approached by police approximately twenty-four minutes after an armed robbery was reported early in the morning of August 28, 2009 at an apartment complex. That apartment complex had been under police surveillance in connection with the aforementioned “string” of robberies on the previous night. During that prior surveillance, a white van registered to a “Mr. Maddrey” was observed “acting suspiciously” by circling the parking lot, late a night, without its headlights. P.C.O. at 6-8. The victim of the August 28, 2009 robbery also reported that a white van had been in the vicinity immediately before the attack, and was gone afterwards. Id. at 8. The registration information related to the white van observed by the police in the parking lot led the investigating officers to an address on Thouron Avenue in Philadelphia on the night of August 28, 2009. Maddrey was observed walking away from the white van at this location, and he matched a general description of the suspect in the armed robbery. Id. Maddrey was questioned about the van and asked for identification, at which point it was determined that he “was associated with the van and that he also had an extensive criminal history, including robberies.” Id. at 9. The victim of that morning’s robbery was brought to the scene by police and positively identified Maddrey. Id. at 10. Thereafter, Maddrey was taken to
completely recites the standards attendant to claims of ineffective assistance of counsel (“IAC”), including the axiomatic principle that “counsel will not be considered ineffective for failing to pursue meritless claims.” Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999) (citing Commonwealth v. Parker, 469 A.2d 582, 584 (Pa. 1983)). Reproducing a thorough discussion of probable cause from the Rule 1925(a) opinion issued in Maddrey’s direct appeal, the PCRA court concludes that the police’s detention of Maddrey was supported by probable cause, and that, consequently, Maddrey’s allegation is without merit. P.C.O. at 4-16. Consequently, the PCRA court concluded that Maddrey’s first IAC claim fails. We have reviewed the record, Maddrey’s brief, applicable law and the PCRA court’s opinion. Having done so, we adopt the PCRA court’s analysis with respect to Maddrey’s first claim. A copy of that opinion is attached hereto for reference.
In Maddrey’s second issue, he alleges that direct appellate counsel was ineffective “because he did not direct [the appellate court] to or include in [the] appellate brief sufficient / pertinent facts from the record . . . that was
(Footnote Continued) _______________________
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favorable to defense, and also would have negated any [hot/fresh] pursuit claim[s] by the Abington Police.”7 Maddrey’s Brief at 12. We disagree.
The legal standards attendant to IAC claims are well-defined: [A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the “[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel’s performance was deficient and that such deficiency prejudiced him.” Colavita, 993 A.2d at 886 (citing Strickland v. Washington, 466 U.S. 668, 687-91 (1984)). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See Commonwealth v. Pierce, 527 A.2d 973, 975-78 (Pa. 1987). Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any of these prongs, his claim fails.” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) (citation omitted). Generally, counsel’s assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client’s interests. See Ali, supra. Where matters of strategy and tactics are concerned, “[a] finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not ____________________________________________
chosen offered a potential for success substantially greater than the course actually pursued.” Colavita, 993 A.2d at 887 (quotation and quotation marks omitted).
Spotz, 84 A.3d at 311-12 (internal citations modified). “[T]he Pierce test requires the PCRA petitioner to set forth the three[-]prong standard of ineffectiveness as it relates to the performance of counsel.” Commonwealth v. Jones, 876 A.2d 380, 386 (Pa. 2005) (citing Pierce, 527 A.2d at 975). Furthermore, “a petitioner must . . . individually discuss substantively each prong of the Pierce test.” Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008). Moreover, the Pennsylvania Supreme Court has held that a “bald assertion” is inadequate to sustain an appellant’s burden of proof pursuant to Pierce. See Steele, 961 A.2d 786, 797 (Pa. 2008) (“[U]ndeveloped claims, based on boilerplate allegations, cannot satisfy [an appellant’s] burden of establishing ineffectiveness.”); see also Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001) (holding that IAC arguments appended as an “after-thought” to a brief “simply does not satisfy [a]ppellant’s burden of establishing that he is entitled to any relief.”).
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the facts, nor include them in [the] appellate brief cannot be deemed as part of any strategy, . . . .” Maddrey’s Brief at 14. This bald allegation, included as the penultimate sentence in Maddrey’s substantive discussion of his second issue, is insufficient to sustain his burden of proof. In relevant part, Maddrey has failed to present any cogent argument that directly addresses the reasonableness of counsel’s actions. “Failure to address any prong of the [IAC] test will defeat an effectiveness claim.” Commonwealth v. Williams, 899 A.2d 1060, 1063 (Pa. 2006). Because Maddrey has failed to demonstrate that there was no reasonable basis for counsel’s actions, we conclude that his second claim fails. See Steele, Bracey, supra.
In Maddrey’s third issue, he claims that his aggregate sentence is illegal and violates the strictures of 42 Pa.C.S. § 9714(a). The exact nature of the illegality alleged is unclear from Maddrey’s argument,8 but the most complete statement of Maddrey’s argument is as follows:
[Maddrey] was found guilty on all charges in a single proceeding on the same day, also [Maddrey] was sentenced in a single proceeding on the same day on all counts, thus [Maddrey] believes that the ten (10) to twenty (20) year sentence should be applicable instead of the aggregated 20 to 40 year sentence ____________________________________________
to allow [Maddrey] an opportunity to reform in between enhancements under the Three Strikes Statute . . . .
Maddrey’s Brief at 12. Therefore, Maddrey argues that “the current conviction[s] should be considered one conviction for purposes of Section 9714(a)(1),” as a matter of law. Id. at 13. We disagree.
The scope and standard of review applied to determine the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court’s application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.
Commonwealth v. Poland, 26 A.3d 518, 523-24 (Pa. Super. 2011) (quoting Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009)). In relevant part, 42 Pa.C.S. § 9714 provides as follows:
§ 9714. Sentences for second and subsequent offenses (a) Mandatory sentence.--
(1) Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. . . .
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(e) Authority of court in sentencing.—There shall be no
authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsections (a) and (a.1) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.
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(g) Definition.—As used in this section, the term “crime of violence” means . . . robbery as defined in 18 Pa.C.S. §[§] 3701(a)(1)(i), (ii) or (iii) . . . .”
42 Pa.C.S. § 9714.
more . . . crimes of violence arising from the separate criminal transactions.” 42 Pa.C.S. § 9714; see Shiffler, 879 A.2d at 194-95. Specifically, the Court in Shiffler concluded that it was improper to sentence the appellant as a “third-strike” offender pursuant to subsection 9714(a)(2) because the appellant’s only previous convictions were three burglary9 charges that arose from the same criminal transaction. In so doing, the Supreme Court rejected the argument that each prior count of the previous conviction counted as a separate “strike” under section 9714:
The anomaly of appellant’s situation is thus: while he has not ever been - nor could he have been - sentenced as a second-strike offender, a reflexive application of subsection 9714(a)(2) would subject him to sentencing as a third-strike offender. . . . We do not believe that such a result was intended by the General Assembly in adopting the graduated scheme of recidivist sentencing which is reflected in Section 9714.
Id. at 194 (emphasis in original).
Maddrey’s reliance upon Shiffler is inapposite. We discern that Maddrey is not citing to Shiffler to support the proposition that he was not eligible for a mandatory minimum sentence pursuant to subsection 9714(a)(1).10 Rather, Maddrey is arguing that “being as [Maddrey] was found guilty and sentenced all in a single proceeding, the current conviction ____________________________________________
9 18 Pa.C.S. § 3502.
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should be considered one conviction for the purposes of [subsection] 9714(a)(1).” Maddrey essentially is arguing that his multiple mandatory minimums should merge for sentencing purposes. The holding of Shiffler does not address this issue. Additionally, Maddrey’s argument that the “recidivist philosophy” undergirding section 9714 precludes the sentencing court from sentencing Maddrey to a harsher sentence is refuted by the text of the statute itself. In relevant part, subsection 9714(e) provides that “[n]othing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section.” 42 Pa.C.S. § 9714(e).
Furthermore, Maddrey’s claim is contrary to well-established law. In relevant part, Pennsylvania’s merger statute provides as follows: “No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense.” 42 Pa.C.S. § 9765. “Our courts have long held that where a defendant commits multiple distinct acts, concepts of merger do not apply.” Commonwealth v. Pettersen, 49 A.3d 903, 911-12 (Pa. Super. 2012) (citing Commonwealth v. Robinson, 931 A.2d 15, 24 (Pa. Super. 2007)).
Instantly, the PCRA court aptly has established in its opinion that Maddrey was convicted for criminal acts arising from multiple incidents:
Information, [Maddrey] was sentenced on count 19 to a term of 10 to 20 years’ imprisonment for the robbery of Ya Ying Xie pursuant to 42 Pa.C.S. § 9714(a)(1). [Maddrey] also was sentenced to a consecutive term of 10 to 20 years’ imprisonment for the robbery of Sun Park at count 20 pursuant to 42 Pa.C.S. § 9714(a)(1). See Corrected Trial/Plea/Sentence Form, 3/31/2011, at 2. These were separate offenses for which this Court applied the mandatory minimum to each offense.[11]
P.C.O. at 22 (citation modified). Based on the foregoing, we conclude that Maddrey’s third claim is without merit. Maddrey has advanced no argument that convinces us that his sentence violates the tenets of 42 Pa.C.S. § 9714, or is otherwise illegal. Consequently, his third claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/29/2014
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