Com. v. Burton, B.

J-S02026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAROLD BURTON,
Appellant No. 469 EDA 2014
Appeal from the PCRA Order of January 24, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005138-2010
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAROLD BURTON,
Appellant No. 470 EDA 2014
Appeal from the PCRA Order of January 24, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008177-2010
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAROLD BURTON,
Appellant No. 471 EDA 2014
Appeal from the PCRA Order of January 24, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008178-2010
J-S02026-15
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAROLD BURTON,
Appellant No. 472 EDA 2014
Appeal from the PCRA Order of January 24, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000204-2011
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAROLD BURTON,
Appellant No. 473 EDA 2014
Appeal from the PCRA Order of January 24, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000205-2011
BEFORE: MUNDY, OLSON and WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 10, 2015
Appellant, Harold Burton, appeals from the order entered on January
24, 2014 denying his petition filed under the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The relevant factual background of this case is as follows. During
October 2009, August 2010 (on two separate occasions), and September
2010 (on two separate occasions), Appellant possessed cocaine with the
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intent to deliver. The relevant procedural history of this case is as follows.
On August 20, 2010, Appellant was charged via criminal information at CP-
46-CR-0005138-2010 with, inter alia, possession with intent to deliver
(“PWID”).1 On December 30, 2010, Appellant was charged via criminal
informations at CP-46-CR-0008177-2010 and CP-46-CR-0008178-2010 with,
inter alia, PWID. On February 8, 2011, Appellant was charged via criminal
informations at CP-46-CR-0000204-2011 and CP-46-CR-0000205-2011 with,
inter alia, PWID.
On March 19, 2012, Appellant proceeded to a bench trial on all five
informations. On the second day of trial, March 20, 2012, Appellant agreed
to plead guilty to all five PWID charges. In return, the Commonwealth
agreed to recommend concurrent sentences of four to eight years’
imprisonment. Furthermore, the Commonwealth agreed to make Appellant
eligible for recidivism risk reduction incentive (“RRRI”). He was immediately
sentenced in accordance with the plea agreement.
On July 31, 2012, Appellant filed a pro se PCRA petition. Counsel was
appointed and, on March 15, 2013, an amended PCRA petition was filed. An
evidentiary hearing was held on September 11, 2013. On January 24, 2014,
the PCRA court denied Appellant’s PCRA petition. Appellant filed timely
1
35 P.S. § 780-113(a)(30).
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notices of appeal at each docket number.2 This Court sua sponte
consolidated all five appeals.
Appellant presents one issue for our review:
Was Appellant’s trial counsel ineffective for advising the
Appellant at his guilty plea hearing that the maximum sentence
he could receive for each count of possession with intent to
deliver was 20 years where the bills of information did not
indicate that the charge was a second or subsequent offense?
Appellant’s Brief at 3 (complete capitalization removed).
“Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s findings of fact, and whether the PCRA
court’s determination is free of legal error.” Commonwealth v. Wantz, 84
A.3d 324, 331 (Pa. Super. 2014) (citation omitted). “The scope of review is
limited to the findings of the PCRA court and the evidence of record, viewed
in the light most favorable to the prevailing party at the trial level.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
Appellant’s lone claim on appeal is that his trial counsel rendered
ineffective assistance. Our Supreme Court has explained:
[T]o prove counsel ineffective, [a PCRA] petitioner must
demonstrate: (1) the underlying claim has arguable merit; (2)
no reasonable basis existed for counsel’s actions or failure to
act; and (3) the petitioner suffered prejudice as a result of
counsel’s error such that there is a reasonable probability that
2
On February 28, 2014, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On March 18, 2014, Appellant filed his concise
statement. On June 13, 2014, the PCRA court issued its Rule 1925(a)
opinion. Appellant’s lone issue on appeal was included in his concise
statement.
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the result of the proceeding would have been different absent
such error. Counsel is presumed to have rendered effective
assistance.
A court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; instead,
if a claim fails under any necessary element of the
ineffectiveness test, the court may proceed to that element first.
Finally, counsel cannot be deemed ineffective for failing to raise
a meritless claim.
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations
omitted).
Furthermore,
[a]llegations of ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the
ineffectiveness caused [A]ppellant to enter an involuntary or
unknowing plea. In determining whether a guilty plea was
entered knowingly and intelligently, a reviewing court must
review all of the circumstances surrounding the entry of that
plea.
Commonwealth v. Fears, 86 A.3d 795, 806–807 (Pa. 2014) (citation
omitted).
Appellant argues that his trial counsel was ineffective for advising him
that the maximum penalty for each of the five PWID charges was 20 years’
imprisonment. Appellant argues that this was ineffective assistance
because, according to Appellant, the actual maximum was ten years’
imprisonment. The Commonwealth argues, and the PCRA court found, that
Appellant’s underlying claim is meritless because the maximum penalty was
20 years’ imprisonment.
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An individual convicted of PWID is generally subject to a term of
imprisonment not to exceed ten years. See 35 P.S. § 780-113(f)(1.1). For
second and subsequent PWID convictions, however, the maximum term of
imprisonment is 20 years. See id.; 35 P.S. § 780-115(a). At the PCRA
hearing, Appellant stipulated to the fact that, prior to any of the five
incidents in question, he had been convicted of PWID. He argues, however,
that the recidivist provision of section 780-115 did not apply to him because
the Commonwealth failed to plead in the criminal informations that he had
previously been convicted of PWID.
Appellant concedes that in Commonwealth v. Aponte, 855 A.2d 800,
812 (Pa. 2004), our Supreme Court stated that it is not necessary for the
Commonwealth to plead in the criminal information that an individual has a
prior PWID conviction in order for the section 780-115 recidivism
enhancement to apply. See also Commonwealth v. Gordon, 942 A.2d
174, 183 (Pa. 2007) (quoting Aponte with approval). Appellant argues,
however, that our Supreme Court’s statement in Aponte was dicta and,
therefore, is not binding on this Court.
Our Supreme Court’s statement in Aponte was not dicta. Aponte
was a direct appeal and it is well-settled that an appellate court may raise
illegal sentence claims sua sponte. Commonwealth v. Orie Melvin, 103
A.3d 1, 52 (Pa. Super. 2014) (citations omitted). In Aponte, our Supreme
Court sua sponte considered whether the fact of a prior conviction for PWID
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must be pled in the criminal information. It held that the fact of the prior
conviction need not be pled in the criminal information. Accordingly, our
Supreme Court’s pronouncement in Aponte was not dicta. Appellant also
argues that Aponte was incorrectly decided; however, this Court is “bound
by holdings of the Pennsylvania Supreme Court.” Strausser Enters., Inc.
v. Segal & Morel, Inc., 89 A.3d 292, 300 (Pa. Super. 2014) (citation
omitted).
As Appellant was subject to a maximum sentence of 20 years’
imprisonment for each PWID conviction, his trial counsel’s advice was legally
correct. Therefore, Appellant is unable to prove the first prong of
ineffectiveness and he is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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