Com. v. Harris, C. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CHRISTOPHER LEE HARRIS
Appellant No. 211 WDA 2016
Appeal from the PCRA Order dated January 21, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008631-2011
BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 15, 2016
Appellant, Christopher Lee Harris, appeals from the order dismissing
his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. Appellant asserts that his trial counsel was ineffective
for recommending a sentence to the court which was longer than the
minimum sentence recommended by the guidelines. Upon review, we affirm.
This Court laid out the underlying facts of the case when we affirmed
Appellant’s judgment of sentence:
[Appellant] lived with the victim, Alison Studvant, on the
1500 block of Marlboro Avenue in Wilkinsburg. On July 1, 2011,
[Appellant], his girlfriend, the victim, and the victim’s boyfriend,
were drinking. After the victim’s boyfriend departed, the victim
solicited [Appellant] and his girlfriend for a group sexual
encounter, and allegedly attempted to kiss [Appellant]’s
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*
Retired Senior Judge assigned to the Superior Court.
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girlfriend. [Appellant], angered by the victim’s interaction with
his girlfriend, and at the sexual solicitation, began arguing with
the victim. The victim then left the room, went into the kitchen,
returned with two knives, and began swinging the knives
around. [Appellant] then approached the victim and attempted
to disarm her. In the process of attempting to disarm the victim,
[Appellant] was cut on the arm, cheek and under his eye.
[Appellant] and the victim continued arguing, and when the
victim left the room and went upstairs, [Appellant] leaned out of
the front door and fired four shots into the air. The victim
returned downstairs minutes later, and more arguing ensued.
The victim continued swinging knives and struck [Appellant] in
the wrist and face. [Appellant] then took several steps
backwards, and, although aware of his opportunity to leave the
premises, raised his gun to the victim’s upper torso and fired
twice, striking her in the left breast. The victim slumped against
the wall, and when she attempted to regain her footing,
[Appellant] shot her in the ankle. The victim subsequently died
from her injuries.
[Appellant] was arrested and charged with one count of
criminal homicide. [Appellant] filed a pre-trial motion to
suppress his statements to the police, which the trial court
subsequently denied. On February 1, 2012, at the conclusion of
a jury trial, [Appellant] was found guilty of third-degree murder.1
Commonwealth v. Harris, 1395 WDA 2012, at 1-2 (Pa. Super., July 30,
2013) (“Harris I”) (unpublished memorandum) (citations to the record and
footnote omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
At Appellant’s sentencing hearing on April 30, 2012, his trial counsel
presented three witnesses who spoke on Appellant’s behalf: Appellant’s
mother, Appellant’s older brother, and a member of Appellant’s church. N.T.,
4/30/12, at 4-9. Appellant’s counsel argued for leniency because Appellant
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1
18 Pa.C.S. § 2502(c).
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had no prior contact with the criminal justice system and had been lawfully
carrying a registered firearm at the time of the shooting. Id. at 9-10.
Appellant’s trial counsel concluded her sentencing argument with the
following: “For those reasons, Your Honor, his guidelines start at 90 months.
I would suggest a sentence starting at 120 months.” Id. at 10:18-20.
Appellant thereafter exercised his right of allocution, saying only “I’m sorry.”
Id. at 10:22.
In response, the Commonwealth presented three witnesses: the
victim’s mother, daughter, and sister. N.T., 4/30/12, at 11-15. The
Commonwealth did not make argument or recommend a sentence to the
trial court.
When sentencing Appellant, the judge stated that he took into
consideration Appellant’s Behavior Clinic Evaluation and Pre-Sentence
Investigation Report. N.T., 4/30/12, at 15. The judge also noted that he
incorporated the testimony from the jury trial into the sentencing hearing,2
and acknowledged that the standard sentence range was 90 to 240 months’
minimum incarceration. Id. at 16. Appellant received a sentence of 120 to
240 months’ incarceration, or ten to twenty years. Id.
Appellant filed a post-sentence motion for a new trial on May 1, 2012,
in which he challenged the sufficiency and weight of the evidence supporting
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2
The judge did not indicate any particular portion of the trial testimony that
aided him in his sentencing.
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his conviction. Post-Sentence Mot., 5/1/12. The trial court denied the motion
on August 14, 2012. Trial Ct. Order, 8/14/12.
Appellant filed a timely notice of appeal through counsel on September
12, 2012,3 challenging the sufficiency and weight of the evidence. Harris I
at 3. On July 30, 2013, this Court affirmed the judgment of sentence. PCRA
Ct. Op., 6/3/16, at 2. On December 4, 2013, the Supreme Court of
Pennsylvania denied Appellant’s petition for allowance of appeal. Id.
On May 6, 2014, Appellant filed a timely pro se PCRA Petition. PCRA
Ct. Op., 6/3/16, at 2.4 In his petition, Appellant alleged that his trial counsel
was ineffective for suggesting a sentence above the minimum range in the
Pennsylvania Sentencing Guidelines, 204 Pa. Code §§ 303.1 et seq.:
[Trial counsel] had no reasonable basis for suggesting that
[Appellant’s] sentence [] start above the standard range on the
guidelines where prior to making that suggestion, [Appellant’s]
counsel stated facts of [Appellant’s] no prior criminal history
[and] no run-in’s with the police leading the court to consider
the mitigating circumstances for a possible mitigated sentence of
seventy-eight (78) months. [Counsel’s request for a sentence
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3
Appellant also filed pro se notices of appeal on August 30, 2012, and
September 4, 10, and 11, 2012. Notice of Appeal, 8/30/12; Notice of
Appeal, 9/4/12; Notice of Appeal, 9/10/12; Notice of Appeal, 9/11/12.
4
The petition was filed within one year of December 4, 2013, the date
Appellant’s judgment of sentence became final. See 42 Pa.C.S. § 9545(b)(1)
(stating that generally a PCRA petition must be filed within one year of the
date the petitioner’s judgment of sentence becomes final); 42 Pa.C.S. §
9545(b)(3) (for purposes of the PCRA, “a judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review”).
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starting at 120 months] displayed incompetence, and did not
further her client[’s] [] interest. . . . Such an error show[]s that
[there] is a reasonable probability that but for counsel’s
unprofessional errors [] the outcome of the hearing would have
been different.
PCRA Pet., 5/6/14, at ¶¶ 22-23.5
The PCRA court appointed counsel, and on August 5, 2014, counsel
filed a petition to withdraw and a “no merit” letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
PCRA Ct. Op., 6/3/16, at 2. In her Turner/Finley letter, Appellant’s PCRA
counsel asserted that Appellant was complaining about his trial counsel’s
failure to raise an excessive-sentence claim in Appellant’s post-sentence
motion. Commonwealth v. Harris, 1586 WDA 2014, at 10 (Pa. Super.,
June 5, 2015) (“Harris II”) (unpublished memorandum disposing of
Appellant’s appeal from adverse decision on his 2014 PCRA petition).
Appellant’s PCRA counsel concluded that Appellant’s trial counsel was not
ineffective for failing to preserve that issue. Id. The PCRA court granted
appointed counsel’s petition to withdraw and issued a notice of its intent to
dismiss the petition without a hearing, pursuant to Rule 907 of the
Pennsylvania Rules of Criminal Procedure. PCRA Ct. Op., 6/3/16, at 2-3.
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5
The parties do not dispute the applicable sentencing guidelines. The
mitigated range began at a minimum of 78 months; the standard range was
a minimum of 90 to 240 months. The statutory limit was a minimum of 240
months. PCRA Ct. Op., 6/3/16, at 7.
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Appellant responded to the Rule 907 notice on August 18, 2014, alleging
PCRA counsel’s ineffectiveness. Id. at 3. On September 17, 2014, the PCRA
court dismissed the petition without a hearing. Id.
On September 25, 2014, Appellant filed a timely pro se appeal of the
dismissal of his PCRA petition. PCRA Ct. Op., 6/3/16, at 3. Appellant
asserted that his trial counsel was ineffective for suggesting a sentence
above the minimum or mitigated sentence range, that he had a right to an
evidentiary hearing on trial counsel’s effectiveness, and that his appointed
PCRA counsel was ineffective for misconstruing his PCRA issue. Harris II at
6-7.
On June 5, 2015, this Court issued its Harris II decision disposing of
Appellant’s appeal. We held that Appellant’s claim was similar to a claim that
trial counsel was ineffective for failing to object to an erroneously higher
calculated guideline range, see Commonwealth v. Barnes, 593 A.2d 868,
871 (Pa. Super. 1991), and that such “a claim of ineffectiveness that trial
counsel affirmatively recommended that the trial court impose a higher
sentence than the lower end of the correct standard range . . . has arguable
merit.” Harris II at 8 (emphasis in original). Because no evidentiary hearing
was conducted to determine whether trial counsel had a reasonable basis for
requesting a 120-month sentence, and because the retired trial judge was
unavailable to speak to whether trial counsel’s remarks caused prejudice to
Appellant, we were unable to rule on trial counsel’s ineffectiveness. Id. at 8-
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9; see Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (to prevail
on a claim of ineffective assistance of counsel, a PCRA petitioner must allege
and prove that the underlying legal claim has arguable merit, that counsel
had no reasonable strategic basis for his action, and that the petitioner was
prejudiced by counsel’s action or inaction).
We also held that PCRA counsel was ineffective for misstating
Appellant’s PCRA issue. Harris II at 9-12. That mischaracterization, upon
which the PCRA court relied when dismissing the petition, undeniably
prejudiced Appellant. Id. at 11-12. We therefore vacated the order
dismissing the petition, remanded the case for an evidentiary hearing on
trial counsel’s ineffectiveness, and relinquished jurisdiction. Id. at 12.
On August 10, 2015, the PCRA court appointed new counsel for
Appellant. PCRA Ct. Op., 6/3/16, at 3. On August 31, 2015, appointed
counsel filed an amended PCRA petition that presented the following issue:
“Was trial counsel ineffective for failing to argue the mitigated sentence or at
the very least, a minimum sentence?” Amended PCRA Pet., 8/31/15, at 1.
The PCRA court conducted an evidentiary hearing on October 14,
2015. At the hearing, Appellant’s trial counsel testified that she did not ask
for a mitigated (78-month minimum) sentence, because it “wasn’t indicated
under the facts of the case.” N.T., 10/14/15, at 11. She explained that she
feared that if she had asked for an unreasonably low sentence, the
Commonwealth would have argued for a higher sentence, id. at 25, or the
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judge might have punished her client with a higher sentence. Id. at 19. She
believed a ten to twenty year sentence was low for what Appellant could
expect for his conviction, “especially in Allegheny County where twenty to
forty is almost standard.” Id. at 10. She felt “leaving it to the judge’s
discretion would have absolutely ended at a twenty to forty [year] sentence,
whereas asking for a specific sentence, there was a chance he would not be
sentenced to the top end of the standard range, if you will.” Id.
The PCRA court dismissed Appellant’s amended petition on January 21,
2016. PCRA Ct. Op., 6/3/16, at 4. In its opinion, the PCRA court noted the
following from the evidentiary hearing:
1. [Appellant’s trial counsel] testified that she asked for a
sentence of ten to twenty years, which she believed was
appropriate under the circumstances, albeit a low sentence for
someone convicted of third degree murder. According to [trial
counsel], in Allegheny County, twenty to forty years is almost
standard for murder in the third degree. She felt that if she left it
to the judge’s discretion, it would have absolutely ended up at a
twenty to forty year sentence. She felt that if she asked for a
specific sentence, there was a chance he would not be sentenced
to the top end of the standard range. She further testified, based
on her years of legal experience, a mitigated range sentence was
not indicated under the facts of the case.
2. Her decision to ask for ten to twenty years instead of 78
months (the mitigated range) or 90 months (the low end of the
standard range) was based upon what she believed was
appropriate under the circumstances.
3. [Appellant’s trial counsel] feared if she asked for a mitigated-
range sentence, the Commonwealth would argue for the higher
sentence of twenty to forty years.
4. The Court asked [trial counsel] if one of the reasons she
asked for a specific range was to try and remove or take out of
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the judge’s consideration the higher range sentence in the
standard guidelines. Her answer was that was one of the
reasons, because she did not believe 20-40 years was
appropriate for [Appellant]. [Trial counsel] emphasized to
maintain her credibility with the court, she did not argue for
either a mitigated or low range in the standard range.
5. The Court next asked her if it was her rationale and strategy
that if she asked for a lower-range sentence, 90-180 or plus, the
judge might say a higher sentence is what he’d get, 240-480.
She answered yes; and
6. The Court then asked her if she took a bold approach and
asked for something in the middle rather than the low end or
high end to reduce the likelihood of the higher range. She
stated, “That’s correct.”
PCRA Ct. Op., 6/3/16, at 8-9 (citations to the record omitted). The PCRA
court held that Appellant failed to prove the second prong of the
ineffectiveness test (that trial counsel lacked a reasonable basis for her
actions):
[Appellant’s trial counsel] abundantly explained her trial strategy
and why she asked for a sentence above the mitigated range
and lower end of the standard range. Counsel was trying to
protect her client from receiving a 20-40 year sentence.
Counsel’s actions were reasonable.
Id. at 9. The PCRA court stated that it dismissed Appellant’s petition solely
on the basis of the reasonable basis prong, and did not make a finding
regarding prejudice to Appellant. Id. at 10.
Appellant, through his appointed counsel, timely appealed from the
order dismissing his amended petition on February 10, 2016, and it is that
appeal that is now before this Court. Notice of Appeal, 2/10/16. On February
17, 2016, the PCRA court ordered Appellant to file a Concise Statement of
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Errors Complained of on Appeal, pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure. Order, 2/17/16. Appellant filed
his Concise Statement on February 23, 2016. Statement, 2/23/16. In his
brief to this Court, Appellant raises the following question:
Did trial counsel render ineffective assistance by failing to fully
advocate for [Appellant] by weighing what she perceived the
sentencing court would think over [Appellant’s] own interests
and then asking the sentencing court to apply a sentence that is
higher than the bottom of the standard range?
Appellant’s Brief at 2.
Appellant argues that “All of the evidence [that trial counsel]
presented on behalf of her client were all good points that called for her to
ask for a mitigated sentence or at worst, a bottom of the standard range
sentence.” Id. at 5-6. Appellant claims that in suggesting a 120-month
minimum sentence rather than a 90-month or 78-month minimum sentence,
“[t]rial counsel took on a quasi-judicial role by coming up with a number
that she believed was something that the judge and Commonwealth would
accept.” Id. at 4. Appellant contends that trial counsel violated Appellant’s
Sixth Amendment right to effective counsel by (1) failing to engage in the
adversarial process, citing United States v. Cronic, 466 U.S. 648 (1984),
and (2) preventing the sentencing court from exercising its discretion in
Appellant’s favor, citing United States v. Castro, 26 F.3d 557 (5th Cir.
1994), rehearing denied, 38 F.3d 759 (5th Cir. 1994).
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Our standard of review of the dismissal of a PCRA petition is as
follows:
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 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. Further, 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. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
A petitioner claiming ineffective assistance of counsel must establish
the three prongs of the test from Commonwealth v. Pierce, 527 A.2d 973(Pa. 1987): “(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.” Fears, 86 A.3d at 804
(citations omitted). Counsel is presumed effective, and a petitioner bears the
burden of proving otherwise. Id. If a petitioner fails to prove by a
preponderance of the evidence any of the Pierce prongs, the court need not
address the remaining prongs. Commonwealth v. Fitzgerald, 979 A.2d
908, 911 (Pa. Super. 2009), appeal denied, 990 A.2d 727 (Pa. 2010).
With regard to the second prong, a petitioner must prove that his
counsel failed to pursue an alternative course of action which “offered a
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potential for success substantially greater than the course actually pursued.”
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) (citation omitted).
However,
The test is not whether other alternatives were more reasonable,
employing a hindsight evaluation of the record. Although weigh
the alternatives we must, the balance tips in favor of a finding of
effective assistance as soon as it is determined that trial
counsel’s decision had any reasonable basis.
Pierce, 527 A.2d at 975 (citation omitted). Counsel will not be found
ineffective “if the decision to follow a particular course of action was
reasonably based and was not the result of sloth or ignorance of available
alternatives. Counsel’s approach must be so unreasonable that no
competent lawyer would have chosen it.” Commonwealth v. Loner, 836
A.2d 125, 132–33 (Pa. Super. 2003) (internal quotation marks and citations
omitted), appeal denied, 852 A.2d 311 (Pa. 2004).
Specifically, the decision of whether to present a particular defense “is
a tactical one and will not be deemed ineffective stewardship if there is a
reasonable basis for that position.” Commonwealth v. Blair, 421 A.2d 656,
660 (Pa. 1980); see, e.g., Commonwealth v. Rainey, 656 A.2d 1326,
1330-31 (Pa. 1995) (trial counsel’s strategic concession of guilt on second-
degree murder rather than pursuit of acquittal was deemed reasonable),
cert. denied, 116 S.Ct. 562 (1995); Commonwealth v. Davenport, 431
A.2d 982, 984 (Pa. 1981) (counsel’s promotion of self-defense theory over
pursuit of voluntary intoxication defense was reasonable). An appellate
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court’s evaluation of counsel’s performance and the reasonableness of her
decisions is highly deferential, Commonwealth v. Rega, 933 A.2d 997,
1025 (Pa. 2007), cert. denied, 552 U.S. 1316 (2008), and an appellate
court “will not substitute its determination for that of counsel as to what
course of action would have been more effective in promoting the client's
interest.” Commonwealth v. Blair, 421 A.2d 656, 660 (Pa. 1980).
Under Pennsylvania law, a sentencing judge generally has broad
discretion in fashioning a sentence. Commonwealth v. Hoch, 936 A.2d
515, 519 (Pa. Super. 2007). While a judge is obligated to consider the
ranges prescribed by the guidelines of the Pennsylvania Commission on
Sentencing, the judge may depart from the sentencing guidelines. 42
Pa.C.S. § 9721(b). If there are mitigating or aggravating circumstances
present, a judge may select a sentence in the mitigated or aggravated
range, 204 Pa. Code § 303.13, 42 Pa.C.S. § 9721, but a judge is not
required to sentence in the mitigated or aggravated range, even when
presented with mitigating or aggravating circumstances. Commonwealth v.
Wright, 600 A.2d 1289, 1291-92 (Pa. Super. 1991). The judge must
consider the gravity of the offense as it relates to the impact on the life of
the victim and on the community, the need for public protection, and the
defendant’s need for rehabilitation. 42 Pa.C.S. § 9721(b); Commonwealth
v. Walls, 926 A.2d 957, 962 (Pa. 2007).
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At the time of sentencing, the judge must afford counsel for both
parties the opportunity to present arguments and information relative to
sentencing. Pa.R.Crim.P. 704(C)(1) (emphasis added). It follows, therefore,
that counsel’s role at sentencing is to ensure that the sentencing judge is
fully equipped to consider all the requisite aspects of sentencing, and that
counsel’s arguments should be designed to aid the judge in considering the
appropriate factors and in crafting a sentence in accordance with the law.
Counsel may be found ineffective, for example, for failing to (1) correct
erroneously high sentencing guidelines, Barnes, 593 A.2d at 871; (2)
investigate or present mitigation evidence, Commonwealth v. Martin, 5
A.3d 177, 204 (Pa. 2010), cert. denied, 563 U.S. 1035 (2011); or (3)
request a presentence investigation and report, Commonwealth v.
Johnson, 517 A.2d 1311, 1317 (Pa. 1986). The ultimate discretion,
however, remains with the sentencing judge, who may completely disregard
a sentence recommended by counsel if circumstances so require.6
In the instant case, the trial court conducted an evidentiary hearing to
determine whether Appellant’s trial counsel lacked a reasonable basis for
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6
A judge may also disregard the sentence recommended by the pre-
sentence or psychiatric reports. See Pa.R.Crim.P. 702(A)(1) (a sentencing
judge has discretion to order a pre-sentence investigation report);
Commonwealth v. Goggins, 748 A.2d 721, 729 (Pa. Super. 2000) (stating
one of the essential elements of a presentence investigation report includes
specific recommendations as to the sentence if the sentencing court has so
requested).
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suggesting a 120-month minimum sentence. To succeed on his claim,
Appellant was required to prove that an alternative course of action available
to his trial attorney — here, requesting a 90-month sentence — offered a
potential for success substantially greater than requesting a 120-month
sentence. See Paddy, 15 A.3d at 442. As evidenced by her statements at
the hearing, counsel’s choice to request a sentence of 120 months was not
born of sloth or ignorance, Loner, 836 A.2d at 132–33, but of intention,
experience, and strategy. We note that Appellant’s sentence falls not even at
the midpoint of the standard range, but twenty percent from the low end. 7
Trial counsel’s strategy was successful, and her reasoning was sound.8 We
hold that the PCRA court did not err in finding that Appellant failed to prove
the second prong of the ineffectiveness test.9
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7
The standard range is 90 to 240 months; the midpoint would be a sentence
of a minimum of 165 months; Appellant received a minimum sentence of
120 months.
8
We are not persuaded that Appellant’s trial counsel was obligated to ask for
a mitigated sentence, and find this claim to be without legal merit.
Appellant’s main contention for why he deserved a sentence in the mitigated
range is based on his lack of a criminal history; however, a judge may not
deviate below the sentencing guideline ranges based solely on a defendant’s
clean criminal record, because credit for a clean record is already given
under the guidelines in the defendant’s prior record score. Commonwealth
v. Smith, 673 A.2d 893, 895 (Pa. 1996).
9
Because we affirm on this basis, we need not examine whether Appellant
suffered any prejudice because of counsel’s actions. See Fitzgerald, 979
A.2d at 911 (stating that if a petitioner fails to prove by a preponderance of
(Footnote Continued Next Page)
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Appellant’s argument that his trial counsel violated his Sixth
Amendment right to effective counsel by failing to engage in the adversarial
process is without merit. Appellant contends that his trial counsel was so
ineffective that he should be presumed to have been prejudiced and to have
been the victim of ineffectiveness per se; but an analysis pursuant to United
States v. Cronic, 466 U.S. 648 (1984), which applies to cases in which the
denial of counsel is so apparent that prejudice to a defendant is presumed, is
not appropriate here. See Commonwealth’s Brief at 14-17. Few cases fall
within the purview of Cronic, such as those in which counsel was prevented
from cross-examining witnesses, or counsel completely failed to challenge
the prosecution’s case. Commonwealth v. Williams, 9 A.3d 613, 619 (Pa.
2010). A Cronic analysis “is limited to situations where counsel's failure is
complete, i.e., where counsel has entirely failed to function as the client's
advocate.” Commonwealth v. Mallory, 941 A.2d 686, 700 (Pa. 2008)
(citation and quotation marks omitted), cert. denied, 555 U.S. 884 (2008).
A Cronic analysis is not applicable, for example, where an attorney fails to
adduce mitigating evidence at a capital sentencing, Bell v. Cone, 535 U.S.
685, 696–98 (2002), or where counsel strategically concedes guilt of a
lesser charge during a closing statement. Commonwealth v. Cousin, 888
A.2d 710, 719 (Pa. 2005). Cronic does not apply where, as here, counsel
_______________________
(Footnote Continued)
the evidence any of the Pierce prongs, the court need not address the
remaining prongs).
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was present and meaningfully participated in Appellant’s sentencing
proceeding, and strategically conceded to a sentence of imprisonment higher
than the bare minimum. 10 Thus, Appellant failed to establish counsel’s
alleged error was so significant it should be deemed per se ineffective
assistance of counsel.
Appellant’s argument that his trial counsel prevented the sentencing
court from exercising its discretion in Appellant’s favor also fails. The case
cited by Appellant, United States v. Castro, 26 F.3d 557 (5th Cir. 1994), is
factually distinguishable. In that case, the Fifth Circuit held that a failure to
request Judicial Recommendation Against Deportation (JRAD) from the
sentencing court could constitute ineffective assistance under an
ineffectiveness analysis because, without a request for a JRAD, the
sentencing court was not aware it could grant one. Id. at 562. Moreover,
with limited exceptions not pertinent here, federal court decisions are not
binding on this Court. NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52
A.3d 296, 303 (Pa. Super. 2012). Here, Appellant’s trial counsel ensured
that the sentencing judge was aware of the applicable guidelines range and
of all sentencing factors that weighed in Appellant’s favor. The trial judge is
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10
Moreover, Appellant’s brief does not present a meaningful analysis of why
the Cronic exception to the ineffectiveness test should apply, and to that
extent that aspect of his claim is waived. See Commonwealth v. Furrer,
48 A.3d 1279, 1281 n.3 (Pa. Super. 2012) (issues not developed in an
appellate brief with pertinent authority are waived, citing Pa.R.A.P. 2119(a)),
appeal denied, 62 A.3d 378 (Pa. 2013).
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not beholden to counsel’s recommended sentence, and there is no reason to
believe that the court could not or would not have sentenced Appellant to a
lower sentence than that requested by counsel.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2016
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