Com. v. Barner, O. ( 2016 )

J. S38004/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ORIS ALVIN BARNER, JR., : No. 1938 EDA 2015
:
Appellant :
Appeal from the PCRA Order, May 29, 2015,
in the Court of Common Pleas of Northampton County
Criminal Division at No. CP-48-CR-0003136-2013
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 09, 2016
Oris Alvin Barner, Jr., appeals pro se from the May 29, 2015 order of
the Court of Common Pleas of Northampton County denying his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The PCRA court provided the following synopsis of the factual and
procedural history:
On November 14, 2013, [appellant] pleaded
guilty to Possession with Intent to Deliver [(“PWID”)]
Heroin (35 [P.S.] § 780-113(a)(30)). On August 18,
2013, . . . [appellant] was strip searched as an
inmate of Northampton County Correctional Facility
and was discovered to be in possession of five
packets of heroin. Appellant was then charged with
Contraband (18 Pa.C.S. § 5123(a.2)) and pleaded
J. S38004/16
guilty to this second charge on January 17, 2014.[1]
On the same date, and upon consideration of the
record, this Court sentenced [appellant] to the
following: 33-66 months [imprisonment], plus four
(4) years’ probation, on the PWID charge and 24-48
months [imprisonment] on the Contraband charge,
these sentences to run concurrently. On February 3,
2015, [appellant] filed a Petition for Post-Conviction
Relief and independent counsel was appointed to
represent [appellant] on February 13, 2015.[2] On
May 6, 2015, this Court received counsel’s “No-Merit
Letter”[3] submitting that [appellant] was not
entitled to post-conviction relief. This Court then
reviewed the record and agreed with counsel’s
assessment, issuing a Notice of Intent to Dismiss
Without a Hearing on May 8, 2015. Appellant failed
to respond to the Notice and this Court dismissed
[appellant’s] Petition for Post-Conviction Relief on
May 29, 2015. This pro se appeal followed.
PCRA court opinion, 8/26/15 at 1.
On June 26, 2015, the PCRA court ordered appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied with the PCRA court’s order on July 15, 2015. On
August 26, 2015, the PCRA court filed an opinion pursuant to Rule 1925(a).
Appellant raises the following issues for our review:
A. Whether [t]he Commonwealth breached the
plea agreement with Appellant?
1
Appellant was arrested for PWID on August 13, 2013. (Notes of testimony,
1/17/14 at 3.) He was in custody for the original PWID charge at the time of
the strip search.
2
Appellant did not file any post-sentence motions, nor did he file a direct
appeal in this case.
3
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
-2-
J. S38004/16
B. Whether plea counsel provided ineffective
assistance in allowing Appellant to enter into a
plea agreement without first investigating the
ramifications of a subsequent charge?
C. Whether the sentence imposed violates the
Sixth Amendment to the United States
Constitution?
D. Whether the trial court was without discretion
to impose a term of confinement followed by a
consecutive term of probation?
E. Whether PCRA counsel provided ineffective
assistance in failing to amend the pro se
petition to present the meritorious preceding
[sic]?
Appellant’s brief at 3.
PCRA petitions are subject to the following standard of review:
“[A]s a general proposition, we review a denial of
PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of
legal error.” Commonwealth v. Dennis, 609 Pa.
442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
A PCRA court’s credibility findings are to be accorded
great deference, and where supported by the record,
such determinations are binding on a reviewing
court. Id. at 305 (citations omitted). To obtain
PCRA relief, appellant must plead and prove by a
preponderance of the evidence: (1) his conviction or
sentence resulted from one or more of the errors
enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
claims have not been previously litigated or waived,
id. § 9543(a)(3); and (3) “the failure to litigate the
issue prior to or during trial . . . or on direct appeal
could not have been the result of any rational,
strategic or tactical decision by counsel[.]” Id.
§ 9543(a)(4). An issue is previously litigated if “the
highest appellate court in which [appellant] could
have had review as a matter of right has ruled on
-3-
J. S38004/16
the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
issue is waived if [appellant] could have raised it but
failed to do so before trial, at trial, . . . on appeal or
in a prior state postconviction proceeding.” Id.
§ 9544(b).
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).
In his first issue, appellant alleges that the Commonwealth breached
the plea agreement reached with appellant. Specifically, appellant avers
that the Commonwealth failed “to ensure that [appellant] received the
twenty-four month minimum sentence agreed upon, and, based upon this
breach, [appellant] should be permitted to withdraw his guilty pleas.”
(Appellant’s brief at 9.)4
Before we can address appellant’s first issue on its merits, we must
first look to whether his claim has been previously litigated or waived. The
PCRA requires that, in order for a petitioner to be eligible for relief, his or her
claim cannot have been “previously litigated or waived.” 42 Pa.C.S.A.
§ 9543(a)(3). The PCRA mandates that an 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 post-conviction proceeding.”
42 Pa.C.S.A. § 9544(b). Our supreme court has stated that “a PCRA
petitioner’s waiver will only be excused upon a demonstration of
4
This appeal concerns only the sentence appellant received for his guilty
plea to the PWID charge.
-4-
J. S38004/16
ineffectiveness of counsel in waiving the issue.” Commonwealth v.
Albrecht, 720 A.2d 693, 700 (Pa. 1998).
Here, appellant did not raise the issue of whether the Commonwealth
breached the plea agreement with appellant at sentencing, through a
post-sentence motion, or on direct appeal. Moreover, appellant did not
allege that his failure to do so was caused by ineffective assistance of
counsel. We, therefore, find that appellant’s first issue is waived under the
PCRA.
In his second issue for our review, appellant avers that his plea
counsel, Steven Mills, Esq., was ineffective because of his failure to
“adequately investigate the facts of the case.” (Appellant’s brief at 11.)
“A criminal defendant has the right to effective
counsel during a plea process as well as during trial.”
[Commonwealth v. Hickman, 799 A.2d 136, 141
(Pa.Super. 2002)]. “A defendant is permitted to
withdraw his guilty plea under the PCRA if ineffective
assistance of counsel caused the defendant to enter
an involuntary plea of guilty.” Commonwealth v.
Kersteter, 877 A.2d 466, 468 (Pa.Super. 2005).
We conduct our review of such a claim in
accordance with the three-pronged
ineffectiveness test under section
9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A.
§ 9543(a)(2)(ii). See [Commonwealth
v.] Lynch[, 820 A.2d 728, 732
(Pa.Super. 2003)]. “The voluntariness of
the plea depends on whether counsel’s
advice was within the range of
competence demanded of attorneys in
criminal cases.” Id. at 733 (quoting
Commonwealth v. Hickman, 2002 PA
-5-
J. S38004/16
Super 152, 799 A.2d 136, 141
(Pa.Super. 2002)).
In order for Appellant to prevail on a
claim of ineffective assistance of counsel,
he must show, by a preponderance of
the evidence, ineffective assistance of
counsel which, in the circumstances of
the particular case, so undermined the
truth-determining process that no
reliable adjudication of guilt or innocence
could have taken place.
Commonwealth v. Kimball, 555 Pa.
299, 724 A.2d 326, 333 (Pa. 1999).
Appellant must demonstrate: (1) the
underlying claim is of arguable merit;
(2) that counsel had no reasonable
strategic basis for his or her 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. Id. The petitioner bears the
burden of proving all three prongs of the
test. Commonwealth v. Meadows,
567 Pa. 344, 787 A.2d 312, 319-20
(2001).
Commonwealth v. Johnson, 868 A.2d 1278, 1281
(Pa.Super. 2005).
Kersteter, 877 A.2d at 469-69. Moreover, trial
counsel is presumed to be effective.
Commonwealth v. Carter, 540 Pa. 135, 656 A.2d
463, 465 (1995).
Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa.Super. 2006).
Appellant makes an undeveloped claim that Attorney Mills was
ineffective because he,
should have been aware of the ramifications of the
subsequent charge [of contraband] on the agreed
-6-
J. S38004/16
upon sentence. Had he sought to ascertain the
effect of the subsequent charge, he could have
exploited it into, at best, a drug program or at worst,
the benefit of the bargaining position with regard to
the plea bargain eventually entered into between the
Commonwealth and [appellant.] In short, it would
have been difficult, armed with these facts, for the
Commonwealth to breach its agreement with
[appellant.]
Appellant’s brief at 11-12. This claim does not satisfy any of the three
prongs established by the Meadows court. Therefore, appellant’s claim of
ineffective assistance of counsel in regards to Attorney Mills is without merit.
Under his third issue, appellant avers that the PCRA court abused its
discretion by sentencing him to an aggravated-range sentence of
33-66 months’ imprisonment for the PWID charge. “Issues challenging the
discretionary aspects of a sentence must be raised in a post-sentence
motion or by presenting the claim to the trial court during the sentencing
proceedings. Absent such efforts, an objection to a discretionary aspect of a
sentence is waived.” Commonwealth v. Shugars, 895 A.2d 1270, 1273-
1274 (Pa.Super. 2006), quoting Commonwealth v. Tirado, 870 A.2d 362,
365 (Pa.Super. 2005) (citation omitted).
Appellant failed to raise this issue through an objection at sentencing,
through a post-sentence motion, or on direct appeal. This issue, therefore,
is waived under the PCRA and we cannot consider it on its merits.
In his fourth issue for our review, appellant challenges the legality of
his sentence.
-7-
J. S38004/16
“A challenge to the legality of a sentence . . . may be
entertained as long as the reviewing court has
jurisdiction.” Commonwealth v. Borovichka,
18 A.3d 1242, 1254 n. 8 (Pa.Super. 2011) (citation
omitted). It is also well-established that “[i]f no
statutory authorization exists for a particular
sentence, that sentence is illegal and subject to
correction.” Commonwealth v. Rivera, 95 A.3d
913, 915 (Pa.Super. 2014) (citation omitted). “An
illegal sentence must be vacated.” Id. “Issues
relating to the legality of a sentence are questions of
law[.] . . . Our standard of review over such
questions is de novo and our scope of review is
plenary.” Commonwealth v. Akbar, 91 A.3d 227,
238 (Pa.Super. 2014) (citations omitted).
Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa.Super. 2014), appeal
denied, 121 A.3d 494 (Pa. 2015).
In the instant appeal, the Commonwealth cites 42 Pa.C.S.A. § 9721 as
the statute from which the PCRA court derived its authority to impose
appellant’s sentence. (Commonwealth’s brief at 14.) Section 9721
provides:
(a) General rule.--In determining the sentence to
be imposed the court shall, except as provided
in subsection (a.1), consider and select one or
more of the following alternatives, and
may impose them consecutively or
concurrently:
(1) An order of probation.
(2) A determination of guilt without
further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.
(6) County intermediate punishment.
(7) State intermediate punishment.
-8-
J. S38004/16
42 Pa.C.S.A. § 9721(a) (emphasis added). As the Commonwealth notes,
our supreme court has held that a sentencing court may “fashion a sentence
which includes one or more of five alternative punishments, and permits
these punishments to be imposed consecutively or concurrently.”
Commonwealth v. Pierce, 441 A.2d 1218, 1219 (Pa. 1982), citing
Commonwealth v. Nickens, 393 A.2d 758 (Pa.Super. 1978) (en banc).5
In the instant appeal, we find that the sentencing court acted fully
within its statutory authority when it sentenced appellant to a term of
probation consecutive to a term of imprisonment for the same offense.
Accordingly, appellant’s fourth issue is without merit.
For his fifth and final issue on appeal, appellant avers that his PCRA
counsel, Tyree A. Blair, Esq., provided ineffective assistance for failing to
amend appellant’s PCRA petition to raise the preceding four issues.
Appellant raises this issue for the first time on appeal. Our supreme court
has stated that a failure to raise an ineffective assistance of PCRA counsel
claim before the PCRA court will result in waiver. Commonwealth v. Pitts,
981 A.2d 875, 880 n.4 (Pa. 2009). The court further stated that a petitioner
may raise such an issue in either his response to counsel’s Turner/Finley
5
The courts in Pierce and Nickens analyzed sentencing schemes under
18 Pa.C.S.A. § 1321(a). Section 9721 of the Sentencing Code, which is at
issue in the instant appeal, is virtually identical to Section 1321, except that
it adds two alternative forms of punishment.
-9-
J. S38004/16
no-merit letter, or in his response to the PCRA court’s Rule 907 notice of
intent to dismiss the PCRA petition.
Here, appellant raises the issue of Attorney Blair’s alleged ineffective
assistance for the first time on appeal. Appellant failed to file any response
to Attorney Blair’s Turner/Finley no-merit letter and the PCRA court’s
Rule 907 notice of intent to dismiss his PCRA petition. We, therefore, find
appellant’s fifth issue waived for the purpose of appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2016
- 10 -