Com. v. Harris, C. ( 2014 )

J-S59044-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER RAY HARRIS, :
:
Appellant : No. 1387 EDA 2014
Appeal from the PCRA Order Entered March 28, 2014,
In the Court of Common Pleas of Carbon County,
Criminal Division, at No(s): CP-13-CR-0000354-2011
BEFORE: SHOGAN, LAZARUS and STRASSBURGER*, JJ.
MEMORANDUM BY: STRASSBURGER, J.: FILED SEPTEMBER 26, 2014
Christopher Ray Harris (Appellant) appeals from the order entered
March 28, 2014, dismissing his petition filed pursuant to the Post Conviction
Relief Act (PCRA).1 We affirm.
On March 7, 2011, Appellant was arrested and charged with multiple
crimes stemming from an incident that occurred on February 13, 2011,
where Appellant and three other individuals fired multiple shots at three
occupied homes along Yeakle Street in Weatherly, Pennsylvania.
On May 9, 2011, Appellant waived his preliminary hearing in exchange
for a bail modification releasing him to pre-trial electronic home monitoring
1
42 Pa.C.S. §§ 9541-9546.
* Retired Senior Judge assigned to the Superior Court.
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he remained on pre-trial EHM until sentencing.
On May 17, 2012, Appellant, through his counsel, David Lampman, III,
entered into a negotiated stipulation with the Commonwealth whereby he
agreed to plead guilty to one count of aggravated assault - serious bodily
injury, two counts of REAP, and one count of discharging a firearm into an
unoccupied structure. Stipulation, filed 7/6/2012, 1-2. In exchange for his
plea, all other charges were withdrawn. The stipulation expressly provided
for a 48-to-96 month sentence of incarceration. Id. at 2.
On July 12, 2012, Appellant formally entered his guilty plea before the
trial court. A pre-sentence investigation was ordered and a sentencing date
was set. On October 15, 2012, Appellant was sentenced to an aggregate of
48-to-
On June 13, 2013, Appellant timely filed pro se a PCRA petition. New
counsel was appointed, and an amended PCRA petition was filed on October
16, 2013.2 In his amended petition, Appellant claimed that Attorney
Lampman was ineffective for ignoring his request to file a direct appeal.
Appellant also claimed that his sentence was illegal because (1) he did not
receive full credit for the time spent on pre-trial EHM and (2) the charges of
2
The
was subsequently appointed on February 27, 2014.
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aggravated assault and REAP should have merged for the purpose of
sentencing.
On March 28, 2014, following a PCRA hearing at which both Appellant
and Attorney Lampman testified, the PCRA court issued an order denying
Both the PCRA court and Appellant have complied with Pa.R.A.P. 1925.
Appellant first argues that the PCRA court erred in denying his request
to reinstate his appellate rights nunc pro tunc where his plea counsel was
per se ineffective for failing to file a direct appeal on his behalf.
order is whether the determination of the PCRA court is supported by the
Commonwealth v. Carter, 21
A.3d 680, 682 (Pa. Super. 2011) (citation omitted). This Court grants great
deference to the findings of the PCRA court, and we will not disturb those
findings merely because the record could support a contrary holding.
Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001).
Additionally,
[o]ur standard of review when faced with a claim of
ineffective assistance of counsel is well settled. First, we note
that counsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.
***
A petitioner must show (1) that the underlying claim has
merit; (2) counsel had no reasonable strategic basis for his or
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her action or inaction; and (3) but for the errors or omissions of
counsel, there is a reasonable probability that the outcome of
the proceedings would have been different. The failure to prove
any one of the th
claim.
failure to file a requested direct appeal constitutes ineffective
assistance per se, such that the petitioner is entitled to
reinstatement of direct appeal rights nunc pro tunc without
establishing prejudice. Commonwealth v. Lantzy, 558 Pa. 214,
226 27, 736 A.2d 564, 572 (1999). However, before a court will
find ineffectiveness of counsel for failing to file a direct appeal,
the petitioner must prove that he requested a direct appeal and
the counsel disregarded the request. Commonwealth v. Bath,
907 A.2d 619 (Pa. Super. 2006).
Commonwealth v. Ousley, 21 A.3d 1238, 1244-45 (Pa. Super. 2011)
(some citations omitted).
Instantly, at his PCRA hearing Appellant testified that, immediately
following his sentencing, he asked Attorney Lampman to file an appeal,
although he claimed he did not specify any grounds upon which to do so.
N.T., 3/7/2014, at 14, 22. Appellant testified that once he returned to state
prison, he wrote a letter to Attorney Lampman requesting an appeal. Id. at
16. Additionally, Appellant testified that he asked his family to contact
time. Id. at 15. Appellant claimed that he eventually received a letter from
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Attorney Lampman explaining that there were no grounds to file an appeal.
Id.3
In contrast, Attorney Lampman testified that he did not recall having
any post-sentence communication with Appellant and did not recall Appellant
requesting a direct appeal. Id. at 27, 28. 31. However, he remembered
Appellant being combative immediately following sentencing. Id. at 29.
Additionally, Attorney Lampman did not recall receiving communication from
Appellant or his family regarding an appeal, nor did he recall writing a letter
to Appellant informing him that there were no grounds to appeal. Id. at 27,
31.
Appellant requesting a
Order, 3/28/2013, n.2. This determination is supported by the record, and
determination that Appellant has failed to meet his burden under Bath,
supra and hold that Attorney Lampman was not per se ineffective for failing
to take a direct appeal where none was requested.
3
Neither the letter Appellant purportedly wrote to counsel, nor Attorney
Appellant testified he did not have a copy of either letter. N.T., 3/7/2014, at
23.
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dit for
time spent on pre-trial EHM and that his convictions should merge, raise
-
32. These nonwaiveable claims are cognizable under the PCRA. See
Commonwealth v. Turner, 58 A.2d 845, 847 (Pa. Super. 2012) (indicating
challenges to the legality of a sentence are within the ambit of the PCRA);
Commonwealth v. Perry, 563 A.2d 511, 513 (Pa. Super. 1989) (noting
that claims of sentencing illegality based on failure to award credit time are
cognizable as due-process challenges in PCRA proceedings);
Commonwealth v. Pettersen, 49 A.3d 903, 911 (Pa. Super. 2012)
sentence). As with all questions of law, our standard of review is de novo
and the scope of our review is plenary. Commonwealth v. Baldwin, 985
A.2d 830, 833 (Pa. 2009).
Appellant first argues that equitable circumstances were present which
entitle him to credit for the time he spent on pre-trial EHM. Appe
at 24.
Pursuant to the Pennsylvania Sentencing Code, credit for time served
is awarded as follows:
Credit against the maximum term and any minimum term shall
be given to the defendant for all time spent in custody as a
result of the criminal charge for which a prison sentence is
imposed or as a result of the conduct on which such a charge is
based. Credit shall include credit for time spent in custody prior
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to trial, during trial, pending sentence, and pending the
resolution of an appeal.
42 Pa.C.S. § 9760(1).
In Commonwealth v. Kyle, 874 A.2d 12, 21 (Pa. 2005), our
that time spent on bail release, subject to
electronic monitoring, does not qualify as custody for purposes of Section
9760 credit against a sentence o
assertions, in fashioning this bright-
-by-case test to determine if a defendant should
receive credit. Id. -line rule
will obviate the necessity of evidentiary hearings into the particulars of each
electronic monitoring program around the Commonwealth, which would be
necessary to implement a case-by-
claim must fail.4
Finally, Appellant claims that his convictions for aggravated assault
and REAP should have merged for the purposes of sentencing because those
two crimes arose from the same criminal act and because REAP is a lesser
included offense of aggravated assault. Appell -32.
4
Commonwealth v. Martz, 42 A.3d 1142 (Pa. Super. 2012), for the
proposition that the rule as set forth in Kyle is somehow subject to
interpretation, we note that, unlike Appellant, Martz was not disputing pre-
trial EHM credit; rather, he requested credit for time spent following his
accidental release prior to the completion of his sentence. These situations
are vastly different, and the holding in Kyle abrogating the need for an
equitable balancing of factors related to pre-trial EHM credit controls here.
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The merger statute states that
[n]o crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the statutory
elements of one offense are included in the statutory elements of
the other offense.
42 Pa.C.S. § 9765.
Instantly, there is no dispute that the charges arose from the same set
of facts, constituting a single criminal act. Moreover,
that reckless endangerment is a lesser included offense of aggravated
assault for the purposes of merger, i.e. Commonwealth
v. McCord, 700 A.2d 938, 947 (Pa. Super. 1997). Specifically, we found
Id. Nonetheless, Ap
Our Supreme Court has held that merger does not preclude separate
punishments for injuries to different victims, even when the victims were
injured by a single unlawful act or transaction. Commonwealth v. Frisbie,
485 A.2d 1098, 1100-01 (Pa. 1984). See also Commonwealth v. Burdge,
indicates that the specified victim of the aggravated assault conviction was
her home at the
time of the shooting, is the specified victim of the REAP conviction.
Accordingly, merger does not apply, and Appellant is not entitled to relief on
this issue.
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Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
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