Com. v. Haines, S.

J-S34007-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN DAVID HAINES :
:
Appellant : No. 973 MDA 2021
Appeal from the PCRA Order Entered May 27, 2021
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000398-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED: FEBRUARY 15, 2022
Appellant Sean David Haines appeals from the Order denying his petition
for post-conviction relief, filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-46, in which he alleged ineffective assistance
of plea counsel. He contends that if plea counsel had investigated the value
of the goods that Appellant stole, his crime of Receiving Stolen Property would
have been graded as a misdemeanor rather than a felony. After careful
review, we affirm.
On August 6, 2019, Appellant stole numerous pieces of sound
equipment from a vehicle owned by a disc jockey. When police officer arrested
Appellant, he had drug paraphernalia in his possession. The Commonwealth
filed a criminal information charging Appellant with Receiving Stolen Property
valued at $2,025, and Possession of Drug Paraphernalia.
J-S34007-21
On October 1, 2019, Appellant entered a negotiated guilty plea to one
count of Receiving Stolen Property, graded as a third-degree felony (“F3”).1
In exchange, the Commonwealth agreed (1) not to prosecute Appellant on a
charge of possession of drug paraphernalia, and (2) to recommend a low-
range sentence of two to four years’ incarceration. During his plea hearing,
Appellant agreed that the facts set forth in the criminal information were
accurate. The court immediately sentenced Appellant to the negotiated term
of imprisonment, to run concurrently with a sentence imposed in an unrelated
docket. At no time did Appellant attempt to withdraw his guilty plea.
Appellant did not seek appellate review.2
On September 30, 2020, Appellant timely filed a pro se PCRA petition,
alleging plea counsel provided ineffective assistance by not attempting to
investigate the actual value of the items stolen so that he could then negotiate
the grading of the offense down from a third-degree felony to a first-degree
misdemeanor.3 PCRA Petition, 9/30/20, at 2. The PCRA court appointed
counsel, who did not file an amended PCRA Petition.
____________________________________________
1 18 Pa.C.S. §§ 3925 and 3903(a.1).
2 On August 18, 2020, Appellant filed a pro se Motion to Modify Sentence
seeking a reduction in his sentence, citing the COVID pandemic and the
general need to reduce the prison population for non-violent crimes. Citing
Pa.R.Crim.P. 720(a)(1), the court denied the motion as untimely filed on
September 8, 2020.
3 The offense gravity score for the crime graded as a felony was 5 and
Appellant had a prior record score of RFEL. If the value of the items stolen
(Footnote Continued Next Page)
-2-
J-S34007-21
The court held a hearing on April 29, 2021. Appellant’s PCRA counsel
argued that Appellant admitted that he stole the items due to his drug
addiction, but contended that because plea counsel did not investigate the
value of the stolen items before Appellant pled guilty to the crime graded as
a felony, Appellant is serving a longer sentence than he would if counsel had
investigated and negotiated the crime down to a misdemeanor.4 For relief,
PCRA counsel requested only that the court reclassify the crime from a third-
degree felony to a first-degree misdemeanor. N.T. PCRA Hearing, 4/29/21, at
6. Appellant presented no evidence to support his claim that the items would
have been valued at an aggregate of less than $2,000. On May 27, 2021, the
PCRA court issued an Order and Opinion denying relief.
Appellant filed a timely Notice of Appeal followed by a court-ordered
Pa.R.A.P. 1925(b) statement. The PCRA court filed a Rule 1925(a) opinion
referring this Court to its May 27, 2021 Order and Opinion as fully addressing
Appellant’s issues.
____________________________________________
were less than $2,000, the crime of Receiving Stolen Property would have
been graded as a first-degree misdemeanor, reducing the offense gravity
score to 3.
4 Appellant’s PCRA counsel did not call Appellant’s plea counsel to testify at
the hearing. PCRA counsel indicated he spoke with plea counsel and proffered
that if called to testify, plea counsel “would say basically that [ ] he wasn’t
asked to look into it, it wasn’t brought to his attention, and in his practice he
doesn’t look into something that his client doesn’t make an issue for him as
long as it seems reasonable on its fact. . . . I think it’s not unreasonable to
ask the Commonwealth to stipulate to that offer of proof as being what [plea
counsel] would testify to[.]” See N.T. PCRA Hr’g, 4/29/21, at 5. The
Commonwealth did not so stipulate.
-3-
J-S34007-21
In his brief, Appellant provides the following question for our review:
Did the trial court err in denying [] Appellant’s petition for post-
conviction relief, when his trial counsel failed to obtain and
present evidence of the actual value of the items at issue, which
would have reduced the grading of the offense from a felony of
the third degree to a misdemeanor of the first degree, when
there was no reasonable basis for trial counsel to fail to pursue
such evidence?
Appellant’s Br. at 2.
We review an order denying a petition for collateral relief to determine
whether the PCRA court’s decision is supported by the evidence of record and
free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.
Super. 2016). “This Court grants great deference to the findings of the PCRA
court if the record contains any support for those findings.” Commonwealth
v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) (citation omitted).
“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.” Commonwealth v. Benner, 147 A.3d
915, 919 (Pa. Super. 2016) (quoting Commonwealth v. Perry, 128 A.3d
1285, 1289 (Pa. Super. 2015)).
To be eligible for relief under the PCRA, a petitioner must establish that
his conviction or sentence resulted from one or more of the enumerated errors
or defects found in 42 Pa.C.S. § 9543(a)(2), including the ineffective
assistance of counsel “which, in the circumstances of the particular case, so
-4-
J-S34007-21
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
Ineffective assistance of plea counsel is the basis of Appellant’s petition.
We presume counsel is effective. Commonwealth v. Cox, 983 A.2d
666, 678 (Pa. 2009). To overcome this presumption, a petitioner must plead
and prove that: (1) the underlying claim has arguable merit; (2) counsel
lacked a reasonable basis for his act or omission; and (3) petitioner suffered
actual prejudice. Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015).
In order to establish prejudice, a petitioner must demonstrate “that there is a
reasonable probability that, but for counsel’s error or omission, the result of
the proceeding would have been different.” Commonwealth v. Koehler, 36
A.3d 121, 132 (Pa. 2012) (citation omitted). A claim will be denied if the
petitioner fails to meet any one of these prongs. See Jarosz, 152 A.3d at
350.
Appellant contends that “had trial counsel conducted an even cursory
investigation into the valuation of the stolen property, he would have obtained
information that would have undermined the Commonwealth’s grading of the
primary offense charged.” Appellant’s Br. at 8. He states that “[a]s used
items, it is likely that their fair market value would be less than $2,000.” Id.
at 4, (citing N.T. PCRA Hr’g, 4/29/21, at 4, 9 (Appellant’s counsel’s
argument)). Appellant observes that plea counsel’s “failure to inquire into the
evidence forming the basis for this element of the offense is the failure to
-5-
J-S34007-21
perform an essential duty of defense counsel. [ ] That failure prejudiced
[Appellant] by subjecting him to a longer sentence.” Id. at 9.
The PCRA court concluded that Appellant could not demonstrate that his
claim had arguable merit. PCRA Ct. Op., filed 5/27/21, at 2. The court
emphasized that Appellant entered into a negotiated plea agreement to one
of two charged counts in exchange for a “low-end guideline sentence” that
was ordered to run concurrently with a term of incarceration ordered at a
separate docket. See Order and Opinion, filed May 27, 2021, at 2-3. The
court found “that due to the negotiated sentence to the aforementioned
charge and grading, counsel is not ineffective.” Id. at 3. We agree that
Appellant’s PCRA claim warrants no relief, however, we do so on other
grounds. See Benner, 147 A.3d at 919.
As noted above, in order to obtain relief, a PCRA petitioner must plead
and prove that his underlying claim has arguable merit. Treiber, supra, at
445. “[B]ald assertions of . . . ensuing prejudice cannot satisfy a petitioner’s
burden to prove that counsel was ineffective.” Commonwealth v. Paddy,
15 A.3d 431, 443 (Pa. 2011).
Our review of the record reveals that Appellant presented no testimonial
or documentary evidence at the PCRA hearing to show that the value of the
items was less than $2,000. Rather, PCRA counsel presented his own
argument speculating that if plea counsel had investigated, he would have
discovered that the items sell at values aggregating to less than $2,000.
-6-
J-S34007-21
“[A]rguments of counsel are not evidence.” Commonwealth v.
Ligons, 773 A.2d 1231, 1238 (Pa. 2001). Without evidence showing that the
value of the items was less than $2,000, Appellant could not prove that his
underlying claim had arguable merit so as to support his averment that he
suffered prejudice as a result of plea counsel’s failure to investigate. As a
result, Appellant failed to satisfy each prong of the ineffective assistance of
counsel test.5
Having determined that Appellant did not satisfy the requirements for
obtaining relief based on ineffective assistance of counsel, we conclude that
the PCRA court did not abuse its discretion in entering its order denying relief.
We, thus, affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/15/2022
____________________________________________
5 We also note that PCRA counsel’s failure to call plea counsel to testify
prevented the PCRA court from determining whether plea counsel had a
reasonable strategy in his stewardship of the case.
-7-