February 3, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
THOMAS R. RODMAN Appellant
Appeal from the Judgment of Sentence of January 31, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No.: CP-02-CR-0013261-2011
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J. [*]
Thomas Rodman appeals his January 31, 2013 judgment of sentence. Because Rodman raises no cognizable issues, we affirm.
On January 31, 2013, Rodman pleaded guilty to one count of driving under the influence of alcohol—highest rate ("DUI"),  and one count of driving with a DUI -related suspended license with a blood alcohol content ("BAC") above .02% . The assistant district attorney assigned to Rodman's case summarized the evidence that would have been presented had the matter gone to trial as follows:
[O]n or about August 26, 2011, officers initiated a traffic stop on a vehicle for careless driving. They made contact with the driver, who was Mr. Thomas Rodman. They made observations of an odor of alcohol as well as slurred speech.
They asked Mr. Rodman to submit to field sobriety tests. He was unable to do so at the time, as they were demonstrated and explained by the officer.
Based on officer training and experience, he determined that [ Rodman] was intoxicated to a degree that rendered him incapable of safely driving a motor vehicle. He was transported to UPMC McKeesport for a blood draw within two hours of operating the motor vehicle, and the blood came back positive for alcohol in the amount of .248 percent.
Mr. Rodman additionally was driving with a suspended license, suspended for purposes of DUI and had a prior offense of that.
Notes of Testimony ("N.T."), 1/ 31/ 2013, at 7-8. Rodman offered no additions or corrections to the Commonwealth's summary of the evidence. Id. at 8.
The trial court proceeded directly to sentencing. Pursuant to the plea agreement, Rodman was sentenced to one to two years' incarceration on the DUI count, and a consecutive term of six to twelve months' incarceration on the driving with a suspended license count. In addition to the incarceration, the trial court also imposed a consecutive three-year period of probation on the driving with a suspended license count. Thus, in the aggregate, Rodman was sentenced to eighteen to thirty six months' incarceration, to be followed by three years of probation.
Rodman did not file post-sentence motions. Instead, on February 27, 2013, Rodman filed a notice of appeal. On April 9, 2013, the trial court directed Rodman to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) by May 1, 2013. On April 30, 2013, Rodman filed a concise statement, wherein he raised the following two issues:
1. Did trial counsel render ineffective assistance by permitting Mr. Rodman to plea[ d] to the negotiated term of imprisonment in this case?
a. Were there insufficient prior Driving Under the Influence convictions to support a mandatory sentence in this case?
b. Was trial counsel ineffective for negotiating a 1-2 year sentence of incarceration when the one-year mandatory sentence was not applicable?
2. Is the Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2009) carve-out/ exception for ineffective assistance of counsel claim s raised on direct appeal applicable in this case, especially where Mr. Rodman asserts that the record is sufficient to perm it the trial court to address the claim s of ineffectiveness in its 1925(a) Opinion?
Rule 1925(b) Statement, 4/ 30/ 2013, at 1-2.
On June 13, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a). Therein, the trial court explained that, because Rodman did not file post-sentence motions and did not waive his right to collateral proceedings under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46, his claims were not cognizable on direct appeal. Trial Court Opinion (" T.C.O."), 6/ 13/ 2013, at 2-4. We agree with the trial court.
In his brief, Rodman concedes that the trial court was correct in dismissing his substantive ineffective assistance of counsel ("I AC") claim s. As such, Rodman declares that he will defer those claims until collateral review. Brief for Rodman at 9. Nonetheless, Rodman raises a new, distinct IAC claim. Rodman notes that, at the plea hearing, plea counsel informed the judge that counsel believed that, as a matter of statutory law, Rodman's sentences for DUI and driving with a DUI -related suspended license must be run consecutively to each other. Brief for Rodman at 9; N.T. at 9. Rodman maintains that no such statutory authority exists for such a statement. Furthermore, Rodman contends that, because trial counsel's statement was so clearly incorrect on the face of the record, his I AC claim should be cognizable on direct appeal. In other words, Rodman believes that the alleged facial error constitutes exceptional circumstances that should enable this Court to ignore the current state of the law and review the claim at this time. Rodman's claim fails for a litany of reasons.
First, and foremost, Rodman raises this claim for the first time in this appeal. Rodman did not file post-sentence motions, and he did not raise this claim in his Rule 1925(b) statement. Issues not raised by an appellant in the lower court are waived and cannot be raised for the first time on appeal. See Pa.R.A.P. 302(a). Moreover, Rule 1925(b) requires an appellant to raise all of the issues that he intends to pursue on appeal in his concise statement of errors complained of on appeal. "Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived." See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (citing Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)). For these dual reasons, Rodman's claim is waived.
Second, even if the claim was not waived, it is not cognizable on direct appeal. Recently, in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court considered "the review ability of claims of ineffective assistance ("IAC") of counsel on post-verdict motions and direct appeal." Id. at 563. Following a comprehensive review of the language codified in the PCRA and decisions from our courts, the Supreme Court reaffirmed the principle that IAC claims must be deferred until collateral review, and, thus, are not re viewable on direct appeal. Id. The Court crafted two exceptions to this general proscription. First, the Court held that a trial court may, in its discretion, entertain IAC claim s where extraordinary circumstances exist such that review of the claim would best serve the interests of justice. Id. at 563, 577. Second, the Court "repose[d] discretion in trial courts" to review IAC claim s during post-sentence motions " only if (1) there is good cause shown, and (2) the unitary review so indulged is preceded by the defendant's knowing and express waiver of his entitlement to seek PCRA review from his conviction and sentence, including an express recognition that the waiver subjects further collateral review to the time and serial restrictions of the PCRA." Id. at 563-64, 577-80.
Instantly, extraordinary circumstances do not exist in this case such that Rodman's I AC claim warrants review on direct appeal or that Rodman expressly waived his right to PCRA review. See also Commonwealth v. Barnett, 25 A.3d 371 (Pa.Super. 2011) (en banc) (holding that this Court cannot review ineffective assistance of counsel claims on direct appeal absent a defendant's waiver of PCRA review). Consequently, in light of Holmes, Rodman's claim is not cognizable in this direct appeal.
Finally, even if the above procedural defects did not preclude our review, Rodman's failure entirely to execute a proper IAC argument does. To obtain relief based upon an I AC claim, an appellant must satisfy our well-established three pronged test:
[I] n order to obtain relief based on [ an IAC] claim, a petitioner must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) petitioner suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.
Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). Trial counsel is presumed to be effective, and an appellant bears the burden of pleading and proving each of the three factors by a preponderance of the evidence. Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa.Super. 2006); see also Commonwealth v. Meadows, 787 A.2d 312, 319-20 (Pa. 2001). The failure to address or satisfy any of the prongs will defeat the entire IAC claim.
Instantly, Rodman does not set forth the IAC prongs in his brief, let alone address them independently. To the best that we can decipher, Rodman presents argument only related to the arguable merit prong of the IAC test. Rodman does not address either the reasonable basis or the prejudice prongs. Thus, his IAC claim fails for this reason as well.
Judgment of sentence affirmed.