Com. v. Lantosh, A. ( 2021 )

J-S13043-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW PAUL LANTOSH III :
:
Appellant : No. 2101 EDA 2020
Appeal from the PCRA Order Entered September 17, 2020
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000053-2018,
CP-13-CR-0000054-2018
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 28, 2021
Andrew Paul Lantosh III (Lantosh) appeals the order of the Court of
Common Pleas of Carbon County (PCRA court) denying his petition for post-
conviction relief. See 42 Pa.C.S. §§ 9541-9546 (Post-Conviction Relief Act
(PCRA)). In 2018, Lantosh pleaded guilty in two Carbon County cases to two
counts of criminal trespass and one count of driving with a suspended or
revoked license. At sentencing, he was denied entry into the Carbon County
Drug Treatment Court (DTC).1 Lantosh now argues that he did not receive a
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 DTC is an 18-month long program instituted in 2019. It is a collaborative
effort between the numerous Carbon County entities to provide an alternative
track for criminal defendants suffering from addiction and mental health
issues.
J-S13043-21
chance to challenge the denial of his entry into DTC, that his trial counsel was
ineffective in failing to dispute his DTC ineligibility, and that counsel was
ineffective in failing to delay the sentencing, preventing him from receiving a
concurrent sentence as to his then-pending cases in Lehigh County. Finding
no merit in these claims, we affirm.
I.
On March 23, 2018, Lantosh entered a counseled plea in two cases in
Carbon County (CP-13-CR-53-2018 and CP-13-CR-54-2018).2 He pleaded
guilty to two counts of criminal trespass (18 Pa.C.S. § 3503)(a)(1)(i)) and one
count of driving with a suspended license (75 Pa.C.S. § 1543(b)(1)).
The sentencing was initially scheduled to take place on December 10,
2018. However, Lantosh’s counsel sought to have sentencing deferred until
March 1, 2019. Lantosh had a pending burglary case in Lehigh County, and
counsel still needed to “check with Lehigh County [prosecutors]” about getting
him admitted into DTC. It appears that unless the prosecutors in Lehigh
County would agree to give Carbon County jurisdiction over the Lehigh County
____________________________________________
2 Lantosh’s notice of appeal in the present case included both county court
case numbers in its caption. While the notice might arguably not comport
with Pa.R.A.P. 341 for the reasons outlined in Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018), we find the notice to be sufficient. In numerous
cases that are analogous to the facts of the instant appeal, any defect in
Lantosh’s notice would be attributable to a breakdown in court operations.
See e.g., Commonwealth v. Larkin, 235 A.3d 350, 352 (Pa. Super.
2020)(en banc); Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super.
2019).
-2-
J-S13043-21
case, Lantosh would be deemed ineligible for DTC.3 The continuance of the
sentence was granted.
Again, days before the scheduled sentencing, Lantosh sought another
continuance as to the Carbon County cases. In the motion, counsel noted that
the reason for the request was that Lantosh’s application to DTC was still
pending. This continuance was granted and the sentencing was moved to
March 22, 2019.
For a third time, on March 22, 2019, defense counsel sought a
continuance of the sentencing and it was granted. The reason listed for the
delay was that defense counsel was still “working to make [Lantosh] eligible
for drug court.” The sentencing was moved to May 17, 2019, the day Lantosh
was finally sentenced on his Carbon County cases.
Despite that the delays had been needed to clarify Lantosh’s eligibility
for DTC, his counsel was surprised when it was announced at the sentencing
that he was not being admitted into the program. Nevertheless, Lantosh
agreed to go forward with sentencing and he received an aggregate prison
term of 9 to 36 months on the Carbon County charges. Lantosh did not file
post-sentence motions or a direct appeal.
____________________________________________
3 Lantosh admitted that a requirement for entering DTC was residency within
Carbon County, and that he resided just outside the boundaries of that
jurisdiction, in Lehigh County.
-3-
J-S13043-21
As of the date of that sentencing on May 17, 2019, Lantosh was awaiting
sentence on his Lehigh County case, having already entered a plea. This
sentencing in Lehigh County was scheduled to take place ten days later, on
May 27, 2019. Lantosh would go on to receive a prison term of 36 to 72
months in the Lehigh County case, consecutive to the sentence in Carbon
County.
On November 4, 2019, Lantosh filed a pro se petition for post-conviction
collateral relief, and after PCRA counsel was appointed, an amended petition
was filed. He argued that his trial counsel in the Carbon County cases was
ineffective and that his constitutional rights were violated because the
sentencing went forward on May 17, 2019.
At the evidentiary hearing on June 9, 2020, on Lantosh’s PCRA claims,
he testified that he had thought he was being admitted into DTC when
sentencing commenced on May 17, 2019, and that he had not been informed
why he was found ineligible. Yet he decided to go forward with sentencing at
that time rather than challenge his ineligibility because he did not know he
had the right to do so.
He testified further that he thought his Lehigh County case was going to
be transferred to Carbon County so that he could qualify for DTC and receive
concurrent sentences on all his cases. Lantosh claimed that, had his Carbon
County trial counsel requested another continuance of the sentencing, the
cases could have been consolidated. Lantosh claimed he was advised by his
-4-
J-S13043-21
counsel in Lehigh County that he could not receive a concurrent sentence in
Lehigh County on May 27, 2019, because the Carbon County sentencing had
already concluded and the length of the term as to the Lehigh County counts
exceeded the length of those imposed in Carbon County.
The PCRA court ruled that Lantosh was not entitled to PCRA relief
because the record refuted the factual bases of his claims. That is, the PCRA
court referred to the multiple continuances of his sentencing to infer that
Lantosh, in fact, knew he was ineligible for DTC at the sentencing on May 17,
2019. The PCRA court also ruled that the claims failed because admittance
into DTC is not a constitutionally protected right, as would be required to make
the claim cognizable under the PCRA. Lantosh timely appealed the denial of
his petition. In his appellate brief, he raises three issues:
1. Did the [PCRA] court err in failing to recognize that a violation
of the Fourteenth Amendment occurred when [Lantosh] was not
afforded due process of law with regard to the denial of his
application for the Carbon County drug treatment court program
and his ability to request reconsideration of such denial?
2. Did the [PCRA] court err by not concluding that former counsel
for [Lantosh] was ineffective per se by failing to seek
reconsideration of [Lantosh] being denied participation in the
Carbon County drug treatment court program?
3. Did the [PCRA] court err in failing to conclude that former
counsel for [Lantosh] to first be sentenced in Carbon County, as
opposed to Lehigh County, and thereby removing the possibility
of [Lantosh] being sentenced in a concurrent fashion between the
counties?
-5-
J-S13043-21
Appellant’s Brief, at 5 (suggested answers omitted).4
II.
In Lantosh’s first appellate claim, he asserts that his constitutional rights
were violated because he had no opportunity to challenge the denial of his
entry into DTC. He maintains that he was never informed of his ineligibility
until sentencing on May 17, 2019, and that he was not able to seek
reconsideration of that decision, depriving him of procedural due process.
The PCRA is the sole means of obtaining collateral relief in Pennsylvania.
See Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999); 42 Pa.C.S.
§ 9542. The scope of the PCRA is limited to situations where the petitioner is
either innocent of a crime for which he is serving a sentence or the petitioner
is serving an illegal sentence. See id. at § 9542. PCRA relief may be available
where “[a] violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States 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.” 42 Pa.C.S.
§ 9543(a)(2)(i).
Here, Lantosh asserts his constitutional claim pursuant to the above
provision of the PCRA, Section 9543(a)(2)(i). Yet this provision only affords
____________________________________________
4 Our review is limited to examining whether the trial court’s determination is
supported by the evidence of record and free of legal error. Commonwealth
v. Ali, 86 A.3d 173, 177 (Pa. 2014).
-6-
J-S13043-21
relief when a constitutional violation undermines the adjudication of guilt or
innocence, which is not now at issue because Lantosh has pleaded guilty to
the crimes for which sentence was imposed. It follows then that Lantosh’s
claim is not cognizable under the PCRA because, regardless of whether he was
given an opportunity to dispute his ineligibility for DTC, that determination
had nothing to do with his underlying adjudication of guilt. Thus, the PCRA
court did not err in denying this claim.
III.
Lantosh next contends that his trial counsel was ineffective for not
seeking reconsideration of his exclusion from DTC. He maintains that he was
unaware of that decision until his sentencing on May 17, 2019, and that but
for counsel’s conduct, he would have been able to dispute his ineligibility and
ultimately enter the program.
To prevail on a PCRA claim of ineffectiveness, a petitioner must establish
by a preponderance of the evidence that (1) the underlying legal claim has
arguable merit; (2) counsel had no reasonable basis for the disputed conduct;
and (3) the petitioner has suffered prejudice as a result of counsel’s deficient
performance. See Commonwealth v. Sneed, 45 A.3d 1096, 1106 (Pa.
2012). Failure to satisfy any of these three prongs is fatal to the claim. Id.Prejudice is defined as “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been
different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012) (quotation,
-7-
J-S13043-21
quotation marks and citation omitted). “[A] reasonable probability is a
probability that is sufficient to undermine confidence in the outcome of the
proceeding.’” Commonwealth v. Collins, 957 A.2d 237, 244 (Pa. 2008).
We find that the PCRA court did not err in denying this claim because
Lantosh has not satisfied the prejudice prong, and even if he could do so, the
claim would not be cognizable under the PCRA. Lantosh’s eligibility for DTC
does not implicate his guilt or innocence; nor does it implicate the legality of
his sentence. The claim, therefore, falls outside of the PCRA’s scope.
Assuming that such a right was implicated, putting the claim within the
ambit of the PCRA, Lantosh has still not carried his initial burden of showing
by a preponderance of the evidence that he would have qualified for DTC had
counsel delayed the sentencing that took place on May 17, 2019, or otherwise
objected to the sentence. In fact, the record suggests that Lantosh did not
satisfy the residency requirements for DTC and that the severity of his offense
in Lehigh County also made him ineligible. Lantosh has not stated how
counsel’s action or inaction would have changed any of those circumstances.
Thus, the PCRA court did not err in denying this ineffectiveness claim.
IV.
Lantosh’s final ground is that his trial counsel was ineffective in not
seeking to delay the sentencing in Carbon County so that he would have a
chance to receive a concurrent sentence in his Lehigh County case. As stated
above, the initial burden is on Lantosh to show by a preponderance of the
-8-
J-S13043-21
evidence that counsel’s deficient performance caused him prejudice. In this
context, prejudice is defined as a reasonable likelihood that the outcome of
the proceedings would have been different but for counsel’s deficient conduct.
As with the previous claim, we focus here on the prejudice prong of
ineffectiveness. Even if Lantosh can show that another continuance should
have been requested, and that counsel had no reasonable basis for failing to
do so, Lantosh would still have to demonstrate that he would have received
more lenient (or concurrent) sentences in the Carbon County and Lehigh
County cases had counsel performed differently.
However, Lantosh has not demonstrated a reasonable likelihood that
concurrent sentences would have been imposed had a continuance been
sought on May 17, 2019. There is no indication in the record that the Carbon
County trial court would have granted another continuance after already
granting three of them from the date Lantosh entered his plea. There is no
indication in the record that the authorities in Lehigh County would have ever
agreed to transfer the burglary case to Carbon County had a continuance been
granted. Similarly, there is no record support for the contention that the trial
court in Carbon County would have made the sentence on the Lehigh County
case concurrent.
Simply losing the chance of a concurrent sentence is not enough to
satisfy the prejudice prong of an ineffectiveness claim. The asserted prejudice
-9-
J-S13043-21
is speculative and the claim was properly denied. Thus, for all the above
stated reasons, the order on review must stand.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/21
- 10 -