Com. v. Hairston, G. ( 2018 )

J-A02024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY HAIRSTON :
:
Appellant : No. 258 WDA 2017
Appeal from the PCRA Order July 15, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0015261-2008
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 06, 2018
Appellant, Gary Hairston, was convicted by a jury of possession of a
controlled substance with intent to deliver (PWID) and possession of a
controlled substance1 on July 17, 2012. After unsuccessful direct appeals,
Appellant obtained collateral relief under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546 when the trial court ordered that he be
resentenced. Pursuant to that order, the court, on July 15, 2016, directed
that Appellant serve five to 15 years of imprisonment for his convictions and
denied his remaining claims for collateral relief.2 In this appeal, Appellant
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1 35 P.S. §§ 780–113(a)(30) and 780–113(a)(16), respectively.
2 Although we use both the terms “trial court” and “PCRA court” throughout
this memorandum, the same judge presided over Appellant’s trial and PCRA
review.
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challenges the court’s determinations in its July 15, 2016 order. After
careful consideration, we affirm Appellant’s judgment of sentence, as well as
the denial of Appellant’s claims for collateral relief.
We briefly summarize the facts and procedural history of this case as
follows. On July 17, 2012, a jury convicted Appellant of the aforementioned
crimes.3 On October 4, 2012, the trial court sentenced Appellant to five to
15 years' incarceration for his PWID conviction. No further penalty was
imposed on Appellant's simple possession charge. We affirmed Appellant’s
judgment of sentence in an unpublished memorandum on June 20, 2014.
Thereafter, on April 16, 2014, Appellant filed a PCRA petition. The PCRA
court conducted a hearing and, ultimately, granted Appellant relief on an
illegal sentencing claim pursuant to Alleyne v. United States, 133 S.Ct.
2151 (2013). On July 15, 2016, the trial court resentenced Appellant,
without considering a mandatory sentence deemed illegal under Alleyne, to
the same five-to-15-year term of incarceration. At the time of resentencing,
the PCRA court also denied Appellant’s remaining PCRA claims. Appellant
filed a timely post-sentence motion on July 25, 2016. The trial court granted
Appellant’s subsequent request to file a supplemental post-sentence motion
upon receipt of applicable transcripts. Appellant filed a timely supplemental
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3 This was Appellant’s second trial. The first trial resulted in a mistrial
following a hung jury.
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post-sentence motion on January 9, 2017. The trial court denied relief by
order entered on January 11, 2017. This timely appeal resulted.4
Appellant’s issues challenge the discretionary aspects of his new
sentence, as well as the ineffective assistance of trial counsel. Absent
extraordinary circumstances, in a conventional direct appeal from the
judgment of sentence, claims of ineffective assistance of counsel are to be
deferred to PCRA review. See Commonwealth v. Murray, 174 A.3d 1147,
1153 (Pa. Super. 2017). Also currently on appeal, Appellant challenges the
order denying him collateral relief and ordinarily could not raise discretionary
sentencing claims on collateral review. Thus, we have a hybrid appeal and
must first determine what claims may be considered. This Court has
previously determined that we have jurisdiction to review both the
resentencing claim and the underlying allegations of trial counsel
ineffectiveness. See Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa.
Super. 2017) (PCRA court’s order granting relief with regard to sentencing
and denying all of the petitioner’s other collateral claims was a final
appealable order), citing Commonwealth v. Watley, 153 A.3d 1034 (Pa.
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4 Appellant filed a notice of appeal on February 8, 2017. On February 10,
2017, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 1, 2017,
the trial court granted Appellant a requested extension to file his Rule
1925(b) statement. Thereafter, Appellant filed a timely Rule 1925(b)
statement. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on
June 8, 2017.
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Super. 2016), Commonwealth v. Gaines, 127 A.3d 15 (Pa. Super. 2015)
(en banc), and Commonwealth v. Bryant, 780 A.2d 646 (Pa. 2001); see
also Commonwealth v. McKeever, 947 A.2d 782, 786 (Pa. Super. 2008)
(citation omitted) (grant of PCRA relief in first PCRA petition does not “reset
clock” of finality of judgment of sentence; “clock” is reset only where direct
appeal rights are restored or original conviction is disturbed).
We examine Appellant’s ineffective assistance of trial counsel claim
first. Appellant alleges that “[t]rial [c]ounsel was ineffective for failing to
properly advise [him] of the permissive range of sentences he could receive
for charges pursuant to 35 Pa.C.S.A. § 780-113[(a)(30)].” Id. at 8. In
sum, Appellant avers:
[Appellant] was not properly advised of the maximum range of
sentences he could possibly face if convicted. As such, he did
not have the appropriate information to make an informed
decision regarding any potential plea agreements. If [Appellant]
had been aware of the increased punishments, he could have
opted to enter a negotiated plea. There is no reasonable
strategy that supports [t]rial [c]ounsel’s inaction.
Id. at 9.5
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5 Appellant also claims that trial counsel was ineffective for failing to: (1)
raise an allegation of prosecutorial misconduct when questioning a witness
at trial; (2) file a motion in limine to exclude evidence of his witness’ prior
conviction from trial or object during questioning; and (3) take exception
and reserve his objection regarding a jury instruction on prior inconsistent
statements. See Appellant’s Brief at 10-13. However, Appellant did not
raise these issues in his concise statement of errors complained of on appeal
and, therefore, the issues are waived. See Commonwealth v. Snyder,
870 A.2d 336, 341 (Pa. Super. 2005).
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Our standard of review is well-settled:
This Court analyzes PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court's ruling if it is supported by evidence
of record and is free of legal error. Similarly, 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 is plenary. Finally, we
may affirm a PCRA court's decision on any grounds if the record
supports it.
* * *
In order to obtain relief based on an ineffective assistance of
counsel 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.
Trial counsel is presumed to be effective, and a PCRA petitioner
bears the burden of pleading and proving each of the three
factors by a preponderance of the evidence.
Commonwealth v. Steckley, 128 A.3d 826, 831 (Pa. Super. 2015)
(internal citations, quotations, and brackets omitted).
The United States Supreme Court has explained that a post-conviction
petitioner seeking relief on the basis that ineffective assistance of counsel
caused him or her to reject a plea agreement must demonstrate prejudice:
[B]ut for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the
court (i.e., that the defendant would have accepted the plea and
the prosecution would not have withdrawn it in light of
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intervening circumstances), that the court would have accepted
its terms, and that the conviction or sentence, or both, under the
offer's terms would have been less severe than under the
judgment and sentence that in fact were imposed.
Steckley, 128 A.3d at 832, citing Lafler v. Cooper, 132 S. Ct. 1376(2012).
Here, Appellant presented the testimony of trial counsel and the
assistant district attorney who represented the Commonwealth at trial.
Appellant did not testify. Trial counsel vaguely alluded to a plea deal with
the Commonwealth, but could not recall any specifics. N.T., 6/17/2016, at
10, 28. More specifically, trial counsel claimed that “it could have been a
[four] to [eight] year” offer, but he did not “have any recollection.” Id. at
28. Trial counsel testified that he never discussed the range of sentences
Appellant faced. Id. at 10. However, he did review the mandatory
sentencing statute in existence at the time with Appellant. Id. at 28-29.
Trial counsel also admitted that the assistant district attorney gave him the
sentencing guidelines prior to trial, but he could not recall showing them to
Appellant. Id. at 38. Trial counsel suggested that Appellant “would have to
tell” whether he received them. Id. at 40. However, trial counsel also
testified that he looks at the sentencing guidelines “in every single case” and
recognized that the guidelines contain the statutory maximum. Id. at 41.
The assistant district attorney, representing the Commonwealth at
Appellant’s trial, testified that he did not have “a specific recollection” that a
plea deal had been offered. N.T., 7/15/2016, at 54, 57. If an offer had
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been made, the assistant district attorney testified that his general practice
would have been to offer, “one year below the mandatory minimum that was
in existence at that time, and the cap would have been what the maximum
on the mandatory would have been.” Id. “[T]here was no offer made that
was better than four to ten years [of imprisonment].” Id. at 59. The
assistant district attorney further testified that it was his practice to allow a
plea offer to remain open until the litigation of a defendant’s pretrial
motions. Id. at 50-51. In this case, once Appellant’s motion to suppress
was denied, any potential plea negotiations were withdrawn. Id. at 51-53.
The Commonwealth did not extend any other plea offers thereafter. Id. at
52. Further, the assistant district attorney testified that he provided the
applicable sentencing guidelines to trial counsel at the pretrial conference.
Id. at 54.
The PCRA court determined that there was no merit to Appellant’s
ineffective assistance of counsel claim. Upon review, we agree. While trial
counsel initially testified that he was certain that he did not review the range
of sentences Appellant potentially faced, he also testified that he goes over
the sentencing guidelines with every defendant he represents and conceded
that he received the sentencing guidelines applicable to Appellant in this
case. The assistant district attorney confirmed that he gave trial counsel the
applicable sentencing guidelines. The PCRA court further noted that
Appellant did not testify at the PCRA hearing and “failed to produce any
further evidence in support of his claim.” Trial Court Opinion, 6/8/2017, at
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4. Thus, the only evidence presented was that trial counsel may or may not
have given Appellant the guidelines. More specifically, the PCRA court found
trial counsel’s “testimony was neither persuasive no[r] internally
inconsistent.” Id. As such, the PCRA court “determined that Appellant
failed to meet his evidentiary burden and [] dismissed this claim.” Id.
We discern no abuse of discretion or error of law. Applying governing
principles, we cannot conclude that Appellant was entitled to relief. There
was no testimony from Appellant, so there was no evidence of his decision-
making process or direct testimony that he did not receive the sentencing
guidelines. Thus, he did not show that there was arguable merit to his
claim. Moreover, Appellant failed to prove that there was a reasonable
probability that a plea offer would have been presented to, or accepted by,
the court. Neither trial counsel nor the Commonwealth could recall a specific
plea offer. If there were a plea deal, it was extended to Appellant at the
beginning of his first trial, which resulted in a hung jury and no sentence.
Therefore, under Steckley, there was no prejudice to Appellant. There was
no plea offer extended to Appellant during the second trial, so there was no
agreement for counsel to convey to Appellant and no prejudice arising from
failure to convey potential maximum punishments. For all of the foregoing
reasons, Appellant’s ineffective assistance of counsel claim fails.
Next, Appellant argues that the trial court abused its discretion by
sentencing Appellant to an aggravated range sentence. Appellant’s Brief at
16. He claims, the trial court “improperly sentenced [him] by including
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aggravating factors related to his prior records score, despite the prior
record score already being a factor the guidelines take into account.” Id.
Such a claim implicates the trial court’s discretion to impose sentence.
See Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(challenge to the trial court’s discretion in imposing an aggravated range
sentence). “A challenge to the discretionary aspects of sentencing does not
entitle an appellant to review as of right.” Commonwealth v. Griffin, 149
A.3d 349, 353 (Pa. Super. 2016) (citation omitted). Instead, an appellant
must satisfy a four-part test to invoke this Court’s jurisdiction. Id. As part
of that test, “an appellant must include in his or her [appellate] brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under
the Sentencing Code.” Id. (citation omitted); see also Pa.R.A.P. 2119(f).
“If the Commonwealth objects to the appellant's failure to comply with
Pa.R.A.P. 2119(f), the sentencing claim is waived for purposes of review.”
Griffin, 149 A.3d at 353. Here, the Commonwealth has objected to
Appellant’s failure to include a separate Rule 2119(f) statement in his
appellate brief. See Commonwealth’s Brief at 17. Thus, Appellant’s
sentencing issue is waived.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2018
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