Com. v. Hartleb, R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD ADAM HARTLEB
Appellant No. 1823 WDA 2015
Appeal from the PCRA Order October 19, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000856-2013 CP-25-CR-0001217-
2013
BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 10, 2017
Richard Adam Hartleb appeals from the trial court’s order denying his
petition filed pursuant to the Post Conviction Relief Act (PCRA). 1 Upon
review, we affirm and grant counsel’s petition to withdraw pursuant to
Turner/Finley.2
On September 23, 2013, a jury convicted Hartleb of four counts of
terroristic threats,3 four counts of simple assault,4 one count of possessing
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1
42 Pa.C.S. §§ 9541-9546.
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
18 Pa.C.S. § 2706.
4
18 Pa.C.S. § 2701.
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an instrument of a crime,5 and one count of a person carrying a firearm
without a license.6 These convictions stemmed from an incident that
occurred on February 8, 2013, in which Hartleb pointed a handgun at several
individuals at Haggerty’s Bar in Erie. On November 5, 2013, Hartleb pled
guilty to one count of recklessly endangering another person7 and another
count of a person carrying a firearm without a license, following an unrelated
incident on January 13, 2013, in which Hartleb fired a handgun toward a
vehicle on the 1100 block of Wallace Street in Erie.
On November 14, 2013, the Honorable John Garhart sentenced Hartleb
to an aggregate term of 6 to 14 years’ incarceration. On November 22,
2013, Hartleb filed a motion to modify and reduce sentence, which Judge
Garhart denied on December 6, 2013. Counsel filed a statement of intent
to file an Anders/McClendon8 brief in lieu of a Pa.R.A.P. 1925(b)
statement. On August 22, 2014, this Court granted counsel’s petition to
withdraw and affirmed Hartleb’s judgment of sentence. Commonwealth v.
Hartleb, No. 1966 WDA 2013 (Pa. Super. filed Aug. 22, 2014).
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5
18 Pa.C.S. § 907.
6
18 Pa.C.S. § 6106.
7
18 Pa.C.S. § 2705.
8
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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On May 16, 2015, Hartleb filed a pro se “Motion to Correct Formal
Error,” arguing that his sentence was illegal. The trial court treated
Hartleb’s motion as a PCRA petition and the trial court appointed PCRA
counsel. Hartleb’s PCRA counsel subsequently filed a motion to supplement
Hartleb’s PCRA petition, suggesting that Hartleb’s claim that his prior record
score was incorrectly calculated lacked legal merit.9 PCRA counsel
apparently attempted to withdraw from the matter; however, we found that
counsel did not satisfy all of the demands of Turner/Finley. Accordingly,
we ordered counsel to either comply with the mandates of Turner/Finley or
file an advocate’s brief. See Commonwealth v. Hartleb, No. 1823 WDA
2015 (Pa. Super. filed Nov. 15, 2016). PCRA counsel has now filed an
advocate’s brief.
On appeal, Hartleb raises the issues of “[w]hether the lower court
erred in denying PCRA relief based on the finding of waiver and in otherwise
failing to find that the offense gravity score calculated and applied as to the
instant sentence was incorrect[.]” Brief of Appellant, at 2.
The PCRA court found that because the issue of whether the correct
offense gravity score was used is a challenge to the discretionary aspects of
sentence, Hartleb waived this claim by “fail[ing] to preserve [it] following
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9
Hartleb also argued that the offense gravity score for his conviction of one
count of a person carrying a firearm without a license should have been
calculated as a 5 rather than a 7.
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sentence or on direct review[.]” Notice of Intent to Dismiss Without a
Hearing Pursuant to Pa.R.Crim.P. 907, 9/23/15, at 3.
We agree that Hartleb’s claim entitles him to no relief under the PCRA.
See Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007)
(“Challenges to the discretionary aspects of sentencing are not cognizable
under the PCRA.”). Accordingly, the court did not err in dismissing Hartleb’s
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2017
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