Com. v. Blackstone, S. ( 2016 )

J-S58042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEPHEN BERNARD BLACKSTONE
Appellant No. 1327 MDA 2015
Appeal from the PCRA Order July 2, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003472-2001
BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 22, 2016
Appellant, Stephen Bernard Blackstone, appeals pro se from the order
entered in the Dauphin County Court of Common Pleas, which denied his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We
affirm.
The relevant facts and procedural history of this case are as follows.
On May 24, 2001, Appellant entered a home and robbed and terrorized
multiple victims at gunpoint. A jury convicted Appellant of three counts of
robbery and one count each of burglary and persons not to possess firearms.
The trial court sentenced Appellant on July 24, 2002, to an aggregate term
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S58042-16
of fifty (50) to one hundred (100) years’ incarceration. This Court affirmed
the judgment of sentence on November 17, 2003, and our Supreme Court
denied allowance of appeal on August 12, 2004. See Commonwealth v.
Blackstone, 841 A.2d 570 (Pa.Super. 2003) (unpublished memorandum),
appeal denied, 579 Pa. 687, 856 A.2d 831 (2004). Appellant timely filed a
pro se PCRA petition on June 16, 2005. The PCRA court appointed Attorney
Engle to represent Appellant. Attorney Engle filed a Turner/Finley2 no-
merit letter and petition to withdraw on October 21, 2005. Appellant filed a
pro se response, arguing Attorney Engle failed to address several
meritorious issues Appellant had raised in his pro se PCRA petition. On June
29, 2006, the PCRA court granted Attorney Engle’s petition to withdraw and
issued notice of its intent to dismiss Appellant’s PCRA petition, pursuant to
Pa.R.Crim.P. 907. Appellant filed a pro se response to the court’s Rule 907
notice. The court dismissed the PCRA petition on December 20, 2006.
Appellant appealed and challenged the adequacy of Attorney Engle’s
no-merit letter. On March 17, 2008, this Court decided Attorney Engle had
been improperly permitted to withdraw, vacated the PCRA court’s order, and
remanded for Attorney Engle or new counsel to file an amended PCRA
petition or supplemental no-merit letter addressing Appellant’s five
remaining issues. See Commonwealth v. Blackstone, 953 A.2d 594____________________________________________
2
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
-2-
J-S58042-16
(Pa.Super. 2008) (unpublished memorandum).
On remand, the PCRA court appointed Attorney Shreve to represent
Appellant. On June 12, 2008, Appellant filed a pro se “motion to correct an
illegal sentence,” in which he argued the trial court had illegally sentenced
him as a “third strike” offender under 42 Pa.C.S.A. § 9714. Attorney Shreve
filed a petition to withdraw and no-merit letter on September 8, 2008.
Appellant filed a pro se response on September 25, 2008, arguing only that
his sentencing issue had merit. The court did not allow Attorney Shreve to
withdraw. On March 2, 2009, the court granted PCRA relief with respect to
Appellant’s sentencing issue only. The court resentenced Appellant on April
8, 2009, to an aggregate term of forty (40) to eighty (80) years’
incarceration, which included a “second strike” mandatory minimum term of
ten (10) to twenty (20) years’ incarceration for one robbery count, pursuant
to Section 9714. While still represented by Attorney Shreve, Appellant filed
a direct appeal challenging his new sentence as excessive. This Court
affirmed the new judgment of sentence on June 11, 2010, and our Supreme
Court denied allowance of appeal on December 7, 2010. See
Commonwealth v. Blackstone, 4 A.3d 683 (Pa.Super. 2010) (unpublished
memorandum), appeal denied, 608 Pa. 659, 13 A.3d 473 (2010).
Appellant filed the current pro se PCRA petition on March 28, 2011.
The PCRA court issued Rule 907 notice on July 20, 2011. On August 4,
2011, the court dismissed the petition. On appeal, this Court vacated the
-3-
J-S58042-16
PCRA court’s order for failure to treat the PCRA petition as a “first” petition
from Appellant’s new judgment of sentence (although historically it was
Appellant’s second petition) and remanded for appointment of counsel. See
Commonwealth v. Blackstone, 60 A.3d 560 (Pa.Super. 2012)
(unpublished memorandum). On remand, the PCRA court appointed
Attorney Tobias, who filed an amended PCRA petition on January 14, 2013.
On April 11, 2013, Appellant filed a pro se motion for waiver of counsel.
Following a Grazier3 hearing, the court granted Appellant’s request to
proceed pro se. Appellant pro se filed a motion to submit an amended PCRA
petition and a motion to obtain his pre-sentence investigation (“PSI”) report
and juvenile record. The court granted both motions. Appellant filed a pro
se amended PCRA petition on July 8, 2013. On July 23, 2014, Appellant filed
a “motion to file an amended PCRA petition and/or for the court to take
judicial notice of typo.” The court denied the motion and issued Rule 907
notice on June 8, 2015. Appellant filed a response to the Rule 907 notice on
June 24, 2015. On July 2, 2015, the court denied PCRA relief. Appellant
timely filed a pro se notice of appeal on Monday, August 3, 2015. The court
ordered Appellant to file a concise statement of errors complained of on
appeal per Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises the following issues on appeal, which we have
____________________________________________
3
Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
-4-
J-S58042-16
reordered for ease of disposition:
(1) WHETHER THE HONORABLE COURT ERRED IN
TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE
BEING INEFFECTIVE FOR FAILING TO
AMEND/SUPPLEMENT APPELLANT’S INITIAL PCRA AND
CHALLENGE TRIAL COUNSEL’S INEFFECTIVENESS FOR
FAILING TO ASSURE APPELLANT’S CONSTITUTIONAL
RIGHT TO A FAIR TRIAL BY REQUESTING FOR APPELLANT
TO HAVE A “SEVERANCE” ON THE FORMER CONVICT NOT
TO OWN A FIREARM CHARGE. WHICH AXIOMATIC
REQUIRES EVIDENCE THAT APPELLANT WAS PREVIOUSLY
CONVICTED OF A CRIME AND INSTEAD WRONGLY
ADVISED APPELLANT NOT TO SEVER THE CHARGE, AS
BEING MERITLESS, WITHOUT CONDUCTING AN
EVIDENTIARY HEARING TO DETERMINE IF TRIAL COUNSEL
AND THE TRIAL COURT’S WRONG[] ADVICE UNDERMINED
APPELLANT’S ABILITY TO MAKE A KNOWING AND
INTELLIGENT DECISION NOT TO PROCEED WITH A
“SEVERANCE.”
(2) WHETHER THE HONORABLE COURT ERRED IN
FAILING TO ADDRESS APPELLANT’S CLAIM OF ATTORNEY
SHREVE BEING INEFFECTIVE FOR FAILING TO
AMEND/SUPPLEMENT APPELLANT’S INITIAL PCRA AND
CHALLENGE THE TRIAL COURT ERRING AND ABUSING ITS
DISCRETION BY PROCEEDING IN A TRIBUNAL WITHOUT
JURISDICTION ON THE 3RD COUNT OF ROBBERY.
(3) WHETHER THE HONORABLE COURT ERRED IN
TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE
BEING INEFFECTIVE FOR FAILING TO
AMEND/SUPPLEMENT APPELLANT’S INITIAL PCRA
CHALLENGING TRIAL COUNSEL’S INEFFECTIVENESS FOR
FAILING TO FILE A MOTION TO HAVE THE TRIAL COURT
REFLECT ON WHICH CHARGES WERE BOUND OVER FOR
COURT. BECAUSE THE 3RD COUNT OF ROBBERY WAS
DISMISSED AT A PRELIMINARY HEARING AND WAS NEVER
REFILED AND THE TRIAL COURT HAD APPELLANT STAND
TRIAL ON THE 3RD COUNT OF ROBBERY, AS BEING
MERITLESS. WHEN SUCH ERROR IN LAW VIOLATED
APPELLANT’S STATE AND FEDERAL 6[TH] AND 14TH
AMENDMENT CONSTITUTIONAL RIGHTS TO EFFECTIVE
ASSISTANCE OF COUNSEL AND DUE PROCESS.
-5-
J-S58042-16
(4) WHETHER THE HONORABLE COURT ERRED IN
TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE
BEING INEFFECTIVE FOR FAILING TO OBJECT TO THE
TRIAL COURT ERRING IN “MISCALCULATING HIS PRIOR
RECORD SCORE” ON THE SECOND AND THIRD COUNT OF
ROBBERY, BURGLARY AND FORMER CONVICT NOT TO
OWN A FIREARM CHARGE, AS BEING PREVIOUSLY
LITIGATED. WHEN INEFFECTIVENESS CLAIMS ARE
DISTINCT FROM NON-INEFFECTIVENESS CLAIMS OF
ERROR RAISED ON DIRECT APPEAL AND
PCRA/RESENTENCING COUNSEL SHREVE NEVER RAISED
OR CHALLENGED THIS DISCRETIONARY ASPECT OF
APPELLANT’S SENTENCE ON DIRECT APPEAL. AND
PURSUANT TO THE PA. SENTENCING CODE § 303.7(A),
WHICH USED TO BE § 303.6(A), AFTER THE TRIAL COURT
SENTENCED APPELLANT ON THE OFFENSE WITH THE
HIGHEST GRAVITY SCORE IN SUCH TRANSACTION
APPELLANT’S PRIOR RECORD SCORE SHOULD [HAVE]
WENT BACK TO “ZERO FOR THE REMAINING OFFENSES.”
(5) WHETHER THE HONORABLE COURT ERRED IN
DENYING APPELLANT’S MOTION TO FILE AN AMENDED
PCRA-PETITION AND/OR FOR THE COURT TO TAKE
JUDICIAL NOTICE OF TYPO-SENTENCING CODE ERROR.
(6) WHETHER THE HONORABLE COURT ERRED IN
TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE
BEING INEFFECTIVE FOR FAILING TO OBJECT AND
PRESERVE THE CLAIM THAT THE TRIAL COURT ERRED IN
“DOUBLE COUNTING” APPELLANT’S (PRIOR RECORD/LACK
OF [AMENABILITY] TO REHABILITATION), WHICH WAS A
FACTOR ALREADY INCLUDED IN THE MANDATORY
MINIMUM SENTENCE UNDER 42 PA.C.S.A. § 9714 AND
THE SENTENCING GUIDELINES, AS BEING PREVIOUSLY
LITIGATED. WHEN INEFFECTIVENESS CLAIMS ARE
DISTINCT FROM NON-INEFFECTIVENESS CLAIMS OF
ERROR RAISED ON DIRECT APPEAL. AND
PCRA/RESENTENCING COUNSEL SHREVE NEVER RAISED
OR CHALLENGED THIS DISCRETIONARY ASPECT OF
APPELLANT’S SENTENCE ON DIRECT APPEAL.
(7) WHETHER THE HONORABLE COURT ERRED IN
TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE
-6-
J-S58042-16
BEING INEFFECTIVE FOR FAILING TO OBJECT AND
PRESERVE THE CLAIM THAT APPELLANT RAISED BEFORE
THE TRIAL COURT CHALLENGING THE
CONSTITUTIONALITY AND LEGISLATIVE INTENT OF 42
PA.C.S.A. § 9714(A)(1) AND THAT IF THE COURT
IMPOSE[D] A SENTENCE WHICH WAS NOT INTENDED BY
THE LEGISLATORS THEN THE SENTENCE IMPOSED IS
ILLEGAL, AS BEING PREVIOUSLY LITIGATED. WHEN
INEFFECTIVENESS CLAIMS ARE DISTINCT FROM NON-
INEFFECTIVENESS CLAIMS OF ERROR RAISED ON DIRECT
APPEAL. AND PCRA/RESENTENCING COUNSEL SHREVE
NEVER RAISED OR CHALLENGED THE “LEGALITY OF
APPELLANT’S NEW SENTENCE ON DIRECT APPEAL.”
(8) WHETHER THE HONORABLE COURT ERRED IN
TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE
BEING INEFFECTIVE FOR FAILING TO OBJECT AND/OR
FILE A MOTION TO CORRECT AN ERRONEOUS (P.S.I.-
REPORT) AND ALSO PRECLUDE THE TRIAL COURT FROM
RELYING ON UNCONSTITUTIONAL PRIOR JUVENILE
OFFENSES AND/OR FILE A MOTION FOR THE TRIAL COURT
TO ORDER A (NEW P.S.I.-REPORT) PRIOR TO APPELLANT
BEING RESENTENCED, AS BEING WAIVED AND/OR
MERITLESS. WHEN THE EXHIBITS ATTACHED TO
APPELLANT’S PCRA-PETITION CLEARLY ESTABLISHED
FACTS IN DISPUTE THAT WARRANT AN EVIDENTIARY
HEARING. AND SUCH ERROR IN LAW IS A CONTINUATION
AND VIOLATION OF APPELLANT’S STATE AND FEDERAL
6[TH] AND 14TH AMENDMENT CONSTITUTIONAL RIGHTS TO
EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS,
AND CONSTITUTES AN ILLEGAL SENTENCE.
(Appellant’s Brief at 10−11a-11b).4
In issues one through three, Appellant raises layered claims of
ineffective assistance of counsel against Attorney Shreve ultimately relating
to trial issues. Appellant argues that after Attorney Shreve was appointed to
____________________________________________
4
Appellant has two pages of his brief numbered as “11.”
-7-
J-S58042-16
replace Attorney Engle on Appellant’s first PCRA petition, Attorney Shreve
should have amended the petition to allege (1) trial counsel was ineffective
for giving Appellant erroneous advice on whether to request a severance of
the firearms charge; and (2) the trial court lacked jurisdiction over the third
robbery count because that count had previously been dismissed at
Appellant’s preliminary hearing, and trial counsel was ineffective for failing to
file a motion “to have the trial court reflect on which charges were bound
over for court.” (Appellant’s Brief at 62). Appellant concludes this Court
should vacate the robbery conviction and remand for an evidentiary hearing
on the severance issue. We cannot agree.
As a preliminary matter, the timeliness of a PCRA petition is a
jurisdictional requisite, which this Court may address sua sponte.
Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008);
Commonwealth v. Gandy, 38 A.3d 889 (Pa.Super. 2012), appeal denied,
616 Pa. 651, 49 A.3d 442 (2012). A PCRA petition must be filed within one
year of the date the underlying judgment becomes final. 42 Pa.C.S.A. §
9545(b)(1). A judgment is deemed final at the conclusion of direct review or
at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the PCRA’s timeliness provisions allow for
very limited circumstances under which the late filing of a petition will be
excused. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner asserting a
timeliness exception must file a petition within sixty days of the date the
-8-
J-S58042-16
claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).
Additionally, the 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 unitary review, on appeal or in a
prior state postconviction 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).
Instantly, the trial court originally sentenced Appellant on July 24,
2002. This Court affirmed the judgment of sentence on November 17, 2003,
and the Pennsylvania Supreme Court denied allowance of appeal on August
12, 2004. Thus, Appellant’s original judgment of sentence became final on
November 10, 2004, upon expiration of the time to file a petition for writ of
certiorari with the United States Supreme Court. See U.S.Sup.Ct.R. 13; 42
Pa.C.S.A. § 9545(b)(3). On June 16, 2005, Appellant timely filed his first
pro se PCRA petition from his original judgment of sentence. The PCRA
court appointed Attorney Engle, who filed a no-merit letter and petition to
withdraw. The court dismissed the petition and granted Attorney Engle
leave to withdraw. On appeal, this Court vacated the PCRA court’s order and
remanded the matter based on Attorney Engle’s deficient no-merit letter.
-9-
J-S58042-16
On remand, the PCRA court appointed Attorney Shreve to replace Attorney
Engle. While represented by Attorney Shreve, Appellant filed a pro se
motion, asserting he was unlawfully sentenced as a “third strike” offender
under Section 9714. Attorney Shreve subsequently filed a petition to
withdraw and no-merit letter with respect to the other issues on remand.
Appellant filed a pro se response in which he addressed the illegal sentence
issue only. The PCRA court granted relief limited to that issue. Appellant
did not appeal the PCRA’s court order. The court resentenced Appellant
without application of the “third strike” provision on April 8, 2009, and
Appellant filed a direct appeal from his new judgment of sentence. Following
conclusion of that direct appeal process, Appellant filed the current PCRA
petition pro se on March 28, 2011. After the PCRA court dismissed the
petition, this Court determined on appeal that Appellant was entitled to
counsel because it was Appellant’s first petition filed after imposition of his
new judgment of sentence. See Pa.R.Crim.P. 904(C) (stating PCRA court
shall appoint counsel to represent indigent defendant for first PCRA petition).
On remand, the court appointed Attorney Tobias, who filed an amended
petition.
The relief granted on Appellant’s initial PCRA petition, which was
limited to resentencing, did not reset the clock for purposes of calculating
the date Appellant’s judgment of sentence became final with respect to
claims unrelated to the resentencing, i.e., Appellant’s claims concerning
- 10 -
J-S58042-16
Attorney Shreve’s representation during Appellant’s initial PCRA petition.
See Commonwealth v. Dehart, 730 A.2d 991, 993 n.2 (Pa.Super. 1999),
appeal denied, 560 Pa. 719, 745 A.2d 1218 (1999) (stating successful PCRA
petition does not affect calculation of finality of judgment of sentence where
relief granted neither restored petitioner’s direct appeal rights nunc pro tunc
nor disturbed conviction, but affected petitioner’s sentence only).
Specifically, Appellant now challenges Attorney Shreve’s effectiveness for
failing to raise claims of ineffective assistance against trial counsel.
Appellant’s petition is a “serial” petition with respect to those claims. Their
timeliness must be measured against the date Appellant’s original judgment
of sentence became final: November 10, 2004. Appellant filed the current
PCRA petition on March 28, 2011. Therefore, Appellant’s petition is patently
untimely with respect to the allegations of layered ineffective assistance in
connection with Appellant’s initial PCRA petition; and Appellant failed to
plead and prove any exception to the PCRA time bar. See 42 Pa.C.S.A. §
9545(b)(1). Consequently, the PCRA court lacked jurisdiction over those
specific claims. See Hackett, supra. Moreover, Appellant had the
opportunity to bring those claims during the proceedings on the initial PCRA
petition. When Attorney Shreve sought to withdraw, Appellant could have
raised his allegations of layered ineffective assistance of counsel in a
response to the withdrawal petition. See Pitts, supra. Instead, Appellant
filed a pro se response in which he argued only that his original sentence
- 11 -
J-S58042-16
was unlawful. Thus, Appellant’s layered claims of ineffectiveness would be
waived in any event. See id.Appellant’s remaining five issues relate to his resentencing on April 8,
2009. Dehart arguably forecloses review of those claims as well. See
Dehart, supra at 993 n.2 (stating: “[T]he relief granted in the first PCRA
action did not affect the adjudication of guilt, but merely the sentence
imposed. Because the purpose of the PCRA is to prevent a fundamentally
unfair conviction…and the issue of appellant’s conviction was not disturbed
on the prior PCRA action, we find that this petition constitutes appellant’s
second attempt at collateral relief”). Nevertheless, in Dehart, this Court did
not have the benefit of the petitioner’s second PCRA petition in the certified
record to confirm the nature of his claims and whether they related to the
petitioner’s new sentence. Additionally, the Dehart Court considered only
one purpose of the PCRA—to prevent a fundamentally unfair conviction. The
statute, however, expressly provides a remedy for defendants serving illegal
sentences too. See 42 Pa.C.S.A. § 9542 (stating: “This subchapter provides
for an action by which persons convicted of crimes they did not commit and
persons serving illegal sentences may obtain collateral relief”) (emphasis
added). Therefore, we consider Appellant’s current petition his “first” with
respect to claims arising out of the new sentence imposed on April 8, 2009.
That judgment of sentence became final on March 7, 2011, after expiration
of the ninety-day period to file a petition for writ of certiorari with the United
- 12 -
J-S58042-16
States Supreme Court. See U.S.Sup.Ct.R. 13. Thus, the current PCRA
petition, filed on March 28, 2011, is timely with respect to Appellant’s claims
relating to his new sentence. See 42 Pa.C.S.A. § 9545(b)(1).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959
A.2d 319 (2008). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). A petitioner is
not entitled to a PCRA hearing as a matter of right; the PCRA court can
decline to hold a hearing if there is no genuine issue concerning any material
fact, the petitioner is not entitled to PCRA relief, and no purpose would be
served by any further proceedings. Commonwealth v. Hardcastle, 549
Pa. 450, 701 A.2d 541 (1997).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, a petitioner is required
to make the following showing: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable strategic basis for his action or inaction; and,
(3) but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different.
- 13 -
J-S58042-16
Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).
The failure to satisfy any prong of the test for ineffectiveness will cause the
claim to fail. Williams, supra.“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit…” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal
denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v.
Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)).
Once this threshold is met we apply the “reasonable basis”
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [a defendant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The defendant
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. In [Kimball, supra], we held
that a “criminal defendant alleging prejudice must show
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
- 14 -
J-S58042-16
(2002) (some internal citations and quotation marks omitted).
In issues four and five, Appellant argues the court improperly applied
his prior record score (“PRS”) of six to each offense during resentencing
(except for the sole robbery count subject to a mandatory minimum term).
Appellant contends all offenses stemmed from the same transaction, so
under the Sentencing Guidelines the court should have applied Appellant’s
PRS to the remaining robbery convictions only, since robbery was the
highest-graded offense. Appellant claims the court should have applied a
PRS of zero to the remaining offenses. Appellant asserts Attorney Shreve
was ineffective for failing to object to the way the court applied the
sentencing guidelines during resentencing. Relatedly, Appellant argues the
PCRA court improperly denied his “motion to file an amended PCRA petition
and/or for the court to take judicial notice of typo,” in which Appellant
sought to clarify that he accidentally cited to the wrong section of the
Sentencing Guidelines in his amended pro se PCRA petition. Appellant
concludes he is entitled to resentencing. We disagree.
Instantly, Appellant committed the offenses in question in 2001. The
5th Edition of the Sentencing Guidelines was in effect from June 13, 1997, to
June 3, 2005. Therefore, that edition of the Sentencing Guidelines was
applicable when the court resentenced Appellant. See Commonwealth v.
Maneval, 688 A.2d 1198 (Pa.Super. 1997) (stating applicable sentencing
guidelines are those in effect at time offense was committed). Appellant’s
- 15 -
J-S58042-16
argument relies on prior editions of the Sentencing Guidelines, which
directed the trial court to apply a defendant’s PRS to the offense with the
highest offense gravity score only, when imposing sentences for convictions
arising out of the same transaction. See 204 Pa.Code 303.7(a) (4th
Edition); 204 Pa.Code 303.6(a) (revised 3rd edition). That language,
however, is absent from the 5th Edition of the Sentencing Guidelines, which
was the version in effect at the time Appellant committed the offenses at
issue. Therefore, Appellant’s claim that Attorney Shreve should have
objected to the resentencing court’s across-the-board application of
Appellant’s PRS, based on outdated law, lacks arguable merit.5 See Pierce,
supra.In his sixth issue, Appellant argues the resentencing court improperly
“double counted” his prior record when it factored Appellant’s criminal
history and lack of amenability to rehabilitation into its sentencing decision.
Appellant contends the General Assembly already considered prior
convictions and rehabilitative potential in formulating the mandatory
____________________________________________
5
Appellant’s “typo” in his PCRA petition was his citation to 204 Pa.Code
303.6(a), which formerly contained the relevant language later moved to
Section 303.7(a). Appellant wished to clarify that he meant to cite to
Section 303.7. Nevertheless, the language relied on by Appellant had been
completely removed from Section 303.7 and the entire Sentencing
Guidelines by the time Appellant committed the offenses. Therefore,
Appellant’s “typo” was inconsequential, and he incurred no prejudice from
the court’s denial of his motion to correct the typo or have the court take
“judicial notice” of it.
- 16 -
J-S58042-16
minimum statute and the applicable sentencing guidelines. Appellant
concludes Attorney Shreve was ineffective for failing to raise the issue at
resentencing and on direct appeal. We disagree.
“It is impermissible for a court to consider factors already included
within the sentencing guidelines as the sole reason for increasing or
decreasing a sentence to the aggravated or mitigated range.”
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006). The
sentencing court, however, is allowed to use prior conviction history and
other factors already included in the guidelines to supplement other
sentencing information. Id.Section 9714 of the Sentencing Code provides in relevant part as
follows:
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.
42 Pa.C.S.A. § 9714(a)(1).
Instantly, upon resentencing Appellant on April 8, 2009, the court
stated the following reasons for the sentence:
So in terms of the relevance for sentencing, that PSI, we
considered and even referred to in the sentencing
transcript from July of 2002. So that the reasons we gave
for our resentencing at that time are no less applicable
then as they are now in terms of the background and the
facts and circumstances concerning the sentence we
- 17 -
J-S58042-16
imposed at that time.
I would note that we have—just in terms of [Appellant],
what [you have] done while you’ve been incarcerated,
we’ll note that favorably.
In addition to that, [Appellant], you do appear for the brief
time you’ve been here far different than you were back in
2001-2002. So I do want to at least note in terms of your
presentation here was far different than it was before.
I will also note that prior to this, in your words you were
out of—since the age of 13, you weren’t out of prison for
more than 5 months at one time. Those were your words
in the presentence report.
In addition to that, you at the time throughout the
proceedings have maintained you were innocent. This is
the first time I’ve heard you accept any responsibility.
Quite frankly, that undermines your acceptance of
responsibility when at the time you could have. When it
was in your benefit not to do that, you chose to maintain
your innocence, still do that.
So when you come here today and say, oh, I accept
responsibility, it is not as persuasive to the [c]ourt as if
you would have done it back then, because it was in your
best interest, it was to your benefit to maintain your
innocence. That to me, when you now accept it, just is
undermined. So we’ve considered that.
In addition, we’ve considered again in imposing sentence
that the short—the opportunities you did have for
vocational training, educational training afforded you in the
state correctional institute, that didn’t produce any results
from previous state sentences, that within a short time of
your release and indeed in this case within a matter of, oh,
I think it was less than 2 months, it was quickly, just being
released on the homicide charge, that you committed this
offense.
So I’m not looking at your prior record. I’m looking at
the opportunities that were afforded you in the past to be
successful vocationally, educationally and probably more
- 18 -
J-S58042-16
significant in controlling your violence and anger that’s
manifested in the robberies, those types of offenses that
you were engaged in. That hasn’t changed.
(N.T. Resentencing, 4/8/09, at 22-24) (emphasis added). The court’s
remarks made clear it did not sentence Appellant in the aggravated range
for any of his convictions based solely on his prior record. Further, the
single mandatory minimum sentence imposed, based on a prior conviction,
was no higher than the ten-year minimum term prescribed by Section 9714.
See 42 Pa.C.S.A. § 9714(a)(1). At the time, the court had no discretion to
impose a lower sentence on that robbery count. Therefore, Appellant’s claim
that the court engaged in impermissible “double counting” lacks arguable
merit, and Attorney Shreve was not ineffective for failing to raise that
specific claim in his challenge to the discretionary aspects of Appellant’s
sentence. See Pierce, supra; Shugars, supra.In his seventh issue, Appellant argues his sentence was contrary to
the legislative intent behind Section 9714. Appellant asserts the court
acknowledged its mistake in initially sentencing Appellant as a third-strike
offender under that statute, but it still imposed a harsh sentence appropriate
for third-strike offenders upon resentencing. Appellant contends the
sentence did not afford him the opportunity for rehabilitation intended for
second-strike offenders. Appellant claims Section 9714 did not authorize the
court to impose a sentence beyond the ten-year mandatory minimum.
Appellant submits Attorney Shreve was ineffective for failing to challenge
- 19 -
J-S58042-16
Appellant’s new sentence based on the legislative intent and constitutionality
of Section 9714. Appellant concludes he is entitled to resentencing. We
disagree.
Instantly, Appellant conflates his single mandatory minimum sentence
with his aggregate sentence of forty (40) to eighty (80) years. The court’s
application of Section 9714 related to only one of Appellant’s robbery
convictions. For that conviction, the court imposed a mandatory minimum
term of ten (10) years’ incarceration, consistent with the requirements of
Section 9714. See 42 Pa.C.S.A. § 9714(a)(1). Section 9714 in no way
prohibited the court from exercising its discretion to link that sentence
consecutively with Appellant’s other individual sentences. Therefore,
Appellant’s claim that his sentence was inconsistent with Section 9714 lacks
arguable merit, and Attorney Shreve was not ineffective for declining to
pursue it.6 See Pierce, supra.____________________________________________
6
To the extent Appellant suggests his new aggregate sentence was
excessive, Attorney Shreve raised that claim in a post-sentence motion and
this Court disposed of it on direct appeal. Therefore, that particular claim
has been previously litigated. See 42 Pa.C.S.A. § 9543(a)(3) (stating
petitioner must prove allegation of error has not been previously litigated or
waived to be eligible for PCRA relief). Moreover, direct challenges to the
discretionary aspects of sentencing are not cognizable under the PCRA. See
Commonwealth v. Wrecks, 934 A.2d 1287 (Pa.Super. 2007).
Additionally, Appellant failed to develop any argument regarding the
“constitutionality” of Section 9714. Therefore, that aspect of Appellant’s
issue is waived. See Commonwealth v. Beshore, 916 A.2d 1128(Pa.Super. 2007), appeal denied, 603 Pa. 679, 982 A.2d 509 (2007) (en
(Footnote Continued Next Page)
- 20 -
J-S58042-16
In his eighth issue, Appellant argues his presentence investigation
(“PSI”) report contained numerous factual inaccuracies relied on by the
resentencing court. Appellant contends he had no opportunity before
resentencing to review or discuss with Attorney Shreve any information
contained in the PSI report. Appellant further asserts the court improperly
considered prior juvenile offenses where Appellant was not represented by
counsel. Appellant claims Attorney Shreve was ineffective for failing to
object to inaccuracies in the PSI report and to the court’s reliance on
Appellant’s prior juvenile offenses. Appellant concludes this Court should
vacate the judgment of sentence and remand for resentencing. We
disagree.
This Court has stated the following with respect to allegations of errors
in PSI reports:
Where…the accuracy of the presentence report has been
challenged at the sentencing hearing, the sentencing court
cannot solely rely on the presentence report to satisfy the
record requirements of its sentencing function. Thus,
whenever the information contained in the pre-sentence
report is challenged by the defendant at sentencing, it is
incumbent upon the court to engage in a fact finding
function to determine the truth or falsity of the statements
contained in the report. The reliance sentencing courts
enjoy regarding pre-sentence reports in the sentencing
process presumes their accuracy. When it is alleged that
the reports contain untruths, it is imperative that the
sentencing court make the appropriate determination on
_______________________
(Footnote Continued)
anc) (stating failure to develop adequate argument in appellate brief may
result in waiver of claim).
- 21 -
J-S58042-16
the record of the factual basis for the sentence imposed.
Commonwealth v. Kerstetter, 580 A.2d 1134, 1136 (Pa.Super. 1990).
Instantly, the resentencing court incorporated the same PSI report and
juvenile record used at Appellant’s initial sentencing in 2002. Appellant had
previous opportunities to object to those documents. Further, the PCRA
court addressed Appellant’s allegations of factual inaccuracies in his PSI
report as follows:
No inaccuracies existed in the [PSI report], which caused
prejudice to [Appellant] at resentencing. The court relied
upon no erroneous information as to [Appellant’s] juvenile
history, background or criminal record, which required
correction by resentencing counsel and therefore no
ineffectiveness occurred.
We address each of the alleged inaccuracies asserted in
the January 14, 2013 Counseled Petition, Claims 1-7, as
presented:
1. [Appellant] had a high school diploma prior to
sentencing on July 24, 2002.
[Appellant] fails to demonstrate how he suffered prejudice
by the court’s order on July 24, 2002 that he obtain a
GED, alleging that he already possessed a high school
diploma. The court imposed that condition as
rehabilitative not punitive.
No need existed to correct or to inform the court of
[Appellant’s] high school diploma at resentencing in 2009,
because [Appellant] did so himself, stating to the court[:]
[W]hen you sentenced me last time you ordered me
to go upstate and to get a high school diploma and
enroll in some other programs. But I already had a
high school diploma which I got in [19]99.
[N.T. Resentencing, 4/7/09, at 15].
- 22 -
J-S58042-16
Accordingly, no ineffectiveness occurred.
2. [Appellant] worked at temp agencies and participated in
preaching at the Boys & Girls Club prior to his 2001 arrest.
No ineffectiveness occurred in relation to the alleged
omission of such information from the PSI where
[Appellant] provided such information to the court on the
record [at] resentencing. [Appellant] stated:
Even prior to when I found myself getting back into
the streets, I had completed a drug program,
Conewago in Wernersville. Also, the monitors there
really took a liking to how I carried myself. They
wanted me to stay out of trouble for two years so I
could come back and work in their facility. I also
while I was there was [t]eaching at the Boys and
Girls Club.
* * *
[Id. at 14].
3. [Appellant] could not enroll in vocational classes during
his previous sentence because he was 17 years old and did
not have a high school diploma.
[Appellant] fails to present argument as to how this
alleged omission or inaccuracy created prejudice and is
therefore waived. Further, the court did not recite that
factor in sentencing or resentencing.
4. [Appellant] had only 1 previous adult conviction,
serving a 2-10 year sentence; [p]rior, he served 2 juvenile
terms for 6-9 months in 1993 and 9-12 months in 1995;
[n]ever arrested for an assault at age 8 nor did he have a
conviction for robbery in June or August of 1993.
The court properly relied upon and referred to the certified
record of the Clerk of Courts as to [Appellant’s] history of
criminal offenses.
[Appellant’s] claim that the court improperly relied upon
- 23 -
J-S58042-16
an “arrest for assault at age 8” lacks merit. The court
properly noted [Appellant’s] juvenile offenses at both the
initial sentencing and resentencing, namely, that
[Appellant] served 2 juvenile terms for 6-9 months in 1993
and 9-12 months in 1995.
* * *
The court did not state, as [Appellant] argues, that he was
“arrested” [at age 8]. Rather the court stated[:]
Those certainly have been afforded you over—really
since age 13, and you even have at age 8 an
aggravated assault contact with the juvenile
probation office. That was warned and closed.
[N.T. Sentencing, 7/24/02, at 12].
5. [Appellant] had no robbery conviction in June or August
of 1993.
The court did not refer to a [1993] robbery conviction. Id.
6. [Appellant] had no weapon conviction in 1996 or
robbery conviction in 1996[.]
The [c]ourt properly relied upon the certified dockets
which reflect prior convictions.
7. [Appellant] was at Loysville in Jan[uary] 1995 not
Paradise School[.]
The court correctly referred to “Loysville” as set forth in
the PSI. (“It looks like you went to Loysville for a period of
time”)[.] [Id. at 11].
8. The court was not aware of [Appellant’s] age.
The statements of the court and the testimony of a family
member reflect the court’s awareness of Appellant’s age.
It is insignificant that the court later referred to
[Appellant’s] age as…22[.]
At resentencing, a family member testified, “[Appellant is]
- 24 -
J-S58042-16
28 years old and stands before you as a man that has a
total different outlook on life[,] has concerns for others as
well as himself.” [N.T. Resentencing, 4/7/09, at 20].
(PCRA Court Opinion and Order, filed June 8, 2015, at 11-15) (some internal
citations to the record omitted) (emphasis in original). The record supports
the court’s analysis. Appellant’s pro se amended PCRA petition raised
additional allegations of inaccuracies in the PSI report. All of Appellant’s
allegations are unsupported, belied by the record, and/or involve minor
discrepancies or factors not relied on by the resentencing court. The
resentencing court stated its reasons on the record for the new sentence
imposed, including Appellant’s prior convictions for third-degree murder and
robbery, and other evidence of Appellant’s lack of amenability to
rehabilitation. Appellant fails to demonstrate that but for Attorney Shreve’s
failure to raise Appellant’s allegations regarding the PSI report, the outcome
of the resentencing proceedings would have been different. See
Chambers, supra. Appellant also fails to provide any support for his bald
assertion that he was unrepresented by counsel during his prior juvenile
adjudications, or that Attorney Shreve was aware of Appellant’s purported
lack of representation. Therefore, Appellant’s final challenge to Attorney
Shreve’s effectiveness merits no relief. See Kimball, supra. Based on the
foregoing, the court properly denied Appellant’s PCRA petition. Accordingly,
we affirm.
- 25 -
J-S58042-16
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
- 26 -