Com. v. Humphrey, B.

J-S32045-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON LEE HUMPHREY :
:
Appellant : No. 162 WDA 2021
Appeal from the PCRA Order Entered January 19, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010147-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON HUMPHREY :
:
Appellant : No. 163 WDA 2021
Appeal from the PCRA Order Entered January 19, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010215-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON HUMPHREY :
:
Appellant : No. 164 WDA 2021
J-S32045-21
Appeal from the PCRA Order Entered January 19, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000762-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON HUMPHREY :
:
Appellant : No. 165 WDA 2021
Appeal from the PCRA Order Entered January 19, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009943-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON HUMPHREY :
:
Appellant : No. 166 WDA 2021
Appeal from the PCRA Order Entered January 19, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010568-2019
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COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON LEE HUMPHREY :
:
Appellant : No. 167 WDA 2021
Appeal from the PCRA Order Entered January 19, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009884-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON HUMPHREY :
:
Appellant : No. 168 WDA 2021
Appeal from the PCRA Order Entered January 19, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010214-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON LEE HUMPHREY :
:
Appellant : No. 169 WDA 2021
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J-S32045-21
Appeal from the PCRA Order Entered January 19, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000237-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON HUMPHREY :
:
Appellant : No. 170 WDA 2021
Appeal from the PCRA Order Entered January 19, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009813-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON HUMPHREY :
:
Appellant : No. 219 WDA 2021
Appeal from the PCRA Order Entered January 19, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009942-2019
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: DECEMBER 7, 2021
Brandon Humphrey (“Humphrey”) appeals from the Orders denying his
Petitions for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
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In its Opinion, the PCRA court summarized the history underlying the
instant appeal, as follows:
[] Humphrey appeared before [the trial court] on February
14, 2020[,] and entered into a negotiated guilty plea at 10
cases[:] 2019-00237 [(“No. 237”)]; 2019-00762 [(“No. 762”)];
2019-09942 [(“No. 9942”)]; 2019-09943 [(“No. 9943”)]; 2019-
09813 [(“No. 9813”)]; 2019-09884 [(“No. 9884”)]; 2019-10568
[(“No. 10568”)]; 2019-10147 [(“No. 10147”)]; 2019-10214
[(“No. 10214”)]; and 2019-10215 [(“No. 10215”)]. Following a
lengthy and full, written and oral colloquy, [the trial court]
accepted [Humphrey’s] plea agreement[,] finding that it was
voluntarily, knowingly[,] and intelligently made. [Humphrey] pled
guilty to the 10 [c]ases as follows:
[No. 762: Humphrey] pled guilty to Count 2, Carrying a Firearm
Without a License[, see 18 Pa.C.S.A. § 6106(a)(1)]; Count 3:
Persons Not to Possess a Firearm[, see id. § 6105(a)(1)]; Count
4: Possession of a Controlled Substance[, see 35 P.S. § 780-
113(a)(16)]; and the Commonwealth withdrew the remaining
counts.
[No. 9884: Humphrey] pled guilty to Count 2: Receiving Stolen
Property, [see 18 Pa.C.S.A. § 3925(a)]; and the Commonwealth
withdrew the remaining counts.
[No. 9943: Humphrey] entered into a general plea at one count
of Escape[, see id., § 5121(a)].
[No. 10215: Humphrey] pled guilty to Count 2: Receiving Stolen
Property, and the Commonwealth withdrew the remaining counts.
[No. 9942: Humphrey] pled guilty to Count 2: Access Device
Fraud[, see id. § 4106(a)(1)]; and the Commonwealth withdrew
the remaining counts.
[No. 9813: Humphrey] pled guilty to Count 3: Theft by Unlawful
Taking-Movable Property[, see id. § 3921(a)]; and the
Commonwealth withdrew the remaining counts.
[No. 10214: Humphrey] pled guilty to Count 1: Access Device
Fraud; and the Commonwealth withdrew the remaining counts.
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[No. 10568: Humphrey] pled guilty to Count 1: Access Device
Fraud; and the Commonwealth withdrew the remaining counts.
[No. 10147: Humphrey] pled guilty to Count 2: Theft By
Unlawful Taking-Movable Property; and the Commonwealth
withdrew the remaining counts.
[No. 237: Humphrey] pled guilty to Count 3: Access Device
Fraud; and the Commonwealth withdrew the remaining counts.
There was no negotiated plea agreement with respect to the
sentence at [No. 762]. However, the Commonwealth requested
that all other sentences be imposed concurrently to the sentence
imposed [at No. 762]. During the sentencing hearing,
[Humphrey’s] plea attorney[, Adam Reynolds, Esquire (“Attorney
Reynolds”),] requested that [Humphrey] be sentenced to 2-4
years with permission to enroll in Motivation[al] Boot Camp.
Additionally, Attorney Reynolds requested that the
Commonwealth waive a juvenile adjudication for robbery, as it is
a disqualifier for the Motivation[al] Boot Camp program, which the
Commonwealth and [trial court] agreed to do. [The trial court
sentenced Humphrey to a prison term of 2-4 years for his
conviction at No. 762. The trial court imposed prison terms of 2-
4 years at each of the remaining case numbers.]
* * *
[The trial court] ordered that all sentences run concurrent
to each other and included credit for time served. [Humphrey]
received an aggregate sentence of two (2) to four (4) years of
imprisonment, which is a sentence that makes him statutorily
eligible for Motivation[al] Boot Camp. Furthermore, the [trial
court] gave [Humphrey] permission to participate in
Motivation[al] Boot Camp.
[Humphrey] filed no [p]ost-[s]entencing [m]otions and no
[d]irect [a]ppeal. On July 21, 2020, [Humphrey] filed a pro se
PCRA Petition[s,] and PCRA [c]ounsel was appointed on August
11, 2020. On November 11, 2020, [Humphrey] filed his Amended
PCRA Petition. On December 18, 2020, the Commonwealth filed
[its] Answer to [Humphrey’s] PCRA Petition. On December 28,
2020, the [PCRA court] filed a [Pa.R.Crim.P. 907] Notice of Intent
to Dismiss [Humphrey’s] PCRA Petition. On December 30, 2020,
[Humphrey] filed Objections to [the] Notice to Dismiss, and on[]
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January 19, 2021, [the PCRA court] dismissed [Humphrey’s] PCRA
Petition. [Humphrey] filed [timely Notices of Appeal at each
docket number,] and on February 11, 2021, [Humphrey] filed his
Concise Statement[s] of Matters Complained of on Appeal. [See
Pa.R.A.P. 1925(b).]
PCRA Court Opinion, 4/27/21, at 1-4 (emphasis in original, bulleted
designations omitted). On May 5, 2015, this Court consolidated Humphrey’s
appeals for review.
On appeal, Humphrey presents the following claims for our review:
I. [Whether] the PCRA court erred in dismissing the Petition[,]
where trial counsel was ineffective for advising Humphrey
to enter a guilty plea and suggesting he would receive Boot
Camp, when the escape charge automatically disqualified
him from Boot Camp, thereby rendering the guilty plea
invalid and establishing post-sentence manifest injustice to
permit Humphrey to withdraw his plea[?]
II. [Whether] the PCRA court erred in dismissing the Petition[,]
where trial counsel was ineffective for failing to file post-
sentence motions and/or a direct appeal to modify the
sentence, where the sentence imposed was unreasonably
harsh and lengthy[?]
Brief for Appellant at 6 (some capitalization altered).
We review an order denying PCRA relief to determine whether the record
supports the PCRA court’s findings of fact, and whether its decision is free of
legal error. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015). We
view the evidence of record in a light most favorable to the prevailing
party. Id. The PCRA court’s credibility determinations, when supported by
the record, are binding on this Court. Id. We review the PCRA court’s legal
conclusions de novo. Id. We further observe that this Court may affirm a
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valid judgment or order for any reason appearing of record.
Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019)
Humphrey first claims that his plea counsel rendered ineffective
assistance by advising him to plead guilty, “and suggesting he would receive
Boot Camp[,]” when his escape charge disqualified him from Boot Camp. Brief
for Appellant at 18. Humphrey claims that his disqualification from Boot Camp
rendered his guilty plea invalid, thereby establishing the manifest injustice
necessary for him to withdraw his plea. Id. Humphrey argues that,
[w]here [he] was very focused on receiving Boot Camp and
proceeded to enter a guilty plea to 10 cases believing he would be
eligible for Boot Camp, there is absolutely no reasonable basis for
trial counsel’s incorrect advice that he would be eligible for Boot
Camp without revealing to Humphrey that the [Department of
Corrections (“DOC”)] has their own requirements and determines
who will be admitted into the program….
Id. at 19. According to Humphrey, he suffered prejudice by relying on his
counsel’s advice. Id. at 19-20. Humphrey further points out that the trial
court did not mention the role of the DOC in its colloquy. Id. at 22. Humphrey
states that his plea counsel admitted to advising Humphrey that he would be
eligible for Boot Camp, but did not discuss other factors that the DOC would
consider in determining Humphrey’s eligibility. Id. at 23. Consequently,
Humphrey asks that this Court reverse the PCRA court’s Order, and remand
so that he may withdraw his guilty plea. Id. at 24.
To establish a claim of ineffective assistance of counsel, a defendant
“must show, by a preponderance of the evidence, ineffective assistance of
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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. Turetsky, 925 A.2d 876, 880
(Pa. Super. 2007) (citation omitted). The burden is on the defendant to prove
all three of the following prongs: “(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. (citation omitted); see also Commonwealth v. Daniels, 963
A.2d 409, 419 (Pa. 2009) (recognizing that “[a] failure to satisfy any prong of
the ineffectiveness test requires rejection of the claim of ineffectiveness.”
(citation omitted)).
This Court has explained that,
[i]n order for a guilty plea to be constitutionally valid, the guilty
plea colloquy must affirmatively show that the defendant
understood what the plea connoted and its consequences. This
determination is to be made by examining the totality of the
circumstances surrounding the entry of the plea. Thus, even
though there is an omission or defect in the guilty plea colloquy,
a plea of guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant had
a full understanding of the nature and consequences of his plea
and that he knowingly and voluntarily decided to enter the plea.
Commonwealth. v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)
(citation omitted). However,
a defendant may not challenge his guilty plea by asserting that he
lied while under oath, even if he avers that counsel induced the
lies. A person who elects to plead guilty is bound by the
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statements he makes in open court while under oath and may not
later assert grounds for withdrawing the plea which contradict the
statements he made at his plea colloquy …. [A] defendant who
elects to plead guilty has a duty to answer questions truthfully.
Id.“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 guilt.” Commonwealth v. Kersteter, 877 A.2d 466, 467 (Pa. Super.
2005). If plea counsel misapprehends the consequences of a plea and
therefore misleads the client, counsel renders ineffective assistance.
Commonwealth v. Barndt, 74 A.3d 185, 196 (Pa. Super. 2013).
In its Opinion, the PCRA court concluded that Humphrey’s claim lacks
arguable merit, because Humphrey’s sentences made him statutorily eligible
for Motivational Boot Camp. See PCRA Court Opinion, 4/27/21, at 8. In so
holding, the PCRA court quoted and applied this Court’s decision in
Commonwealth v. Johnson, 868 A.2d 1278 (Pa. Super. 2005). See PCRA
Court Opinion, 4/27/21, at 8. In Johnson, this Court rejected an
ineffectiveness claim based upon a defendant’s disqualification for
Motivational Boot Camp:
The Motivational Boot Camp Act provides, inter alia, that the
sentencing judge, in selecting inmates who are eligible for
participation in this “alternative method” of incarceration “shall
have the discretion to exclude a defendant from eligibility if the
judge determines that the defendant would be inappropriate for
placement in a motivational boot camp.” 61 P.S. § 1124(b).
Here, the sentencing judge found [the defendant] to be eligible
for placement in Boot Camp. … If an inmate is deemed eligible
by a judge, however, the inmate must still be approved by the
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“motivational boot camp selection committee” before he will be
permitted to participate in the program. 61 P.S. § 1126(b). Thus,
the Motivational Boot Camp Act makes clear that, after a common
pleas court judge rules a defendant eligible for the Boot Camp
program, it is within the Boot Camp Committee’s discretion to
accept or reject a defendant for the Boot Camp Program. See 61
P.S. § 1126(b). Ultimately, [the defendant] was not placed in the
Boot Camp program, but neither [defendant’s] plea counsel nor
the sentencing judge could have anticipated that decision. [The
defendant’s] plea counsel did not, therefore, render ineffective
assistance in advising Appellant concerning his eligibility for Boot
Camp under the Boot Camp Act.
Id. at 1282 (some citations omitted). Unlike in Humphrey, our review of the
record discloses that, in the instant case, eligibility for Motivational Boot Camp
was not a part of Humphrey’s plea agreement.
At the guilty plea hearing, the Commonwealth expressly agreed to run
all sentences at all docket numbers concurrent to each other, as part of
Humphrey’s plea agreement. N.T., 2/14/20, at 5. However, the
Commonwealth indicated that, in exchange for Humphrey’s guilty plea to the
firearms offense at No. 762, “the Commonwealth would move to withdraw the
remaining counts with sentencing left up to this Honorable Court.” Id.
at 3 (emphasis added). After the Commonwealth set forth, on the record, the
plea agreement with respect to the offenses at the remaining docket numbers,
the prosecutor stated the following:
[The Commonwealth:] … Your Honor, all of them, except
for that very first case, the Commonwealth would agree to run all
of these sentences concurrently to that sentence.
THE COURT: Run that by me one more time.
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[The Commonwealth:] … [T]he sentence was left up to the
[c]ourt on that very first count with the gun charge.
THE COURT: Okay. That’s at [No.] 762[,] correct?
[The Commonwealth:] Yes. And then we would agree to
have any other sentence run concurrently with that.
THE COURT: So you want the gun charge to run
consecutively?
[The Commonwealth:] No. Just whatever you sentence and
then run everything with it. We don’t – we just want them to run
all together, but we can’t agree to a sentence on that one
charge. Does that make sense?
….
THE COURT: … All right. [Attorney Reynolds], is that your
understanding of the plea agreements at all these cases?
[Attorney Reynolds:] Yes, Your Honor, it surely is.
Id. at 5-6 (emphasis added).
During the plea colloquy, Humphrey acknowledged that Attorney
Reynolds? had reviewed all of the charges, and the maximum and minimum
penalties associated with the charges to which he tendered his guilty plea.
Id. at 8. As part of his plea colloquy, Humphrey was asked whether “anyone
promised you anything in return for all these guilty pleas, other than the
Commonwealth of Pennsylvania?” Id. at 15. Humphrey responded, “No, sir.”
Id.
Following the acceptance of the plea, Humphrey waived his right to a
presentence investigation, and proceeded immediately to sentencing. Id. At
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sentencing, Attorney Reynolds addressed the trial court, in relevant part, as
follows:
[Attorney Reynolds:] ... Your Honor, [Humphrey] has taken
responsibility for his actions that brought him here today. Your
Honor, he has never been incarcerated before this incident for any
length of time.
I would ask for you to consider giving him the
opportunity to perform [Motivational] Boot Camp. I would
ask for two to four years with a Boot Camp recommendation. He
does have a juvenile adjudication for a robbery. That should not
be a disqualifier because it was an adjudication and not a
conviction. However, I would ask the Commonwealth and the
district attorney … and this Honorable Court that if that were to
be a disqualifier, that that disqualification would be waived for the
purpose of this Boot Camp.
Id. at 17 (emphasis added). The Commonwealth and the trial court did not
object to waiver of the adjudication. Id. at 18. Further, the trial court
subsequently complied with Attorney Reynolds’s request not to impose a
sentence for Humphrey’s conviction of Access Device Fraud, as a sentence on
that charge would render Humphrey statutorily ineligible for Motivational Boot
Camp. Id. at 23.
Thus, the record does not support Humphrey’s claim that counsel’s
alleged misunderstanding or misrepresentation regarding Motivational Boot
Camp eligibility caused Humphrey to tender an unknowing or involuntary plea.
See, contra, Kersteter, 877 A.2d at 470 (wherein a defendant obtained
collateral relief where he was promised boot camp under the express terms of
a plea agreement and then did not receive it). The guilty plea colloquy made
it clear that the parties had no agreement regarding Motivational Boot Camp
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eligibility as part of Humphrey’s plea deal. In fact, the colloquy confirmed that
the parties had no agreement regarding Humphrey’s sentence for his
convictions at No. 762. See N.T., 2/14/20, at 5-6. In addition, Humphrey
denied under oath being promised anything in exchange for his plea. Id. at
15. As such, we cannot conclude that there is arguable merit to Humphrey’s
ineffectiveness claim regarding his Motivational Boot Camp eligibility. See
Daniels, 963 A.2d at 419 (recognizing that “[a] failure to satisfy any prong
of the ineffectiveness test requires rejection of the claim of ineffectiveness.”
(citation omitted)). Consequently, Humphrey’s first claim fails.
In his second claim, Humphrey argues that the PCRA court improperly
dismissed his Petition, where counsel had rendered ineffective assistance by
failing to preserve a challenge to the discretionary aspects of his sentence.
Brief for Appellant at 26. Our Court has held that claims implicating the
discretionary aspects of sentencing, raised in the context of an ineffectiveness
claim, are cognizable under the PCRA. Commonwealth v. Whitmore, 860
A.2d 1032, 1036 (Pa. Super. 2004), reversed in part on other grounds,
912 A.2d 827 (Pa. 2006) (stating that “a claim that counsel was ineffective
for failing to perfect a challenge to the discretionary aspects of sentencing is
cognizable under the PCRA.” (citations omitted)); Commonwealth v.
Watson, 835 A.2d 786, 801 (Pa. Super. 2003) (explaining that “a claim
regarding the discretionary aspects of [the defendant’s] sentence, raised in
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the context of an ineffectiveness claim, would be cognizable under the
PCRA[.]”).
“A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right.” Commonwealth v. Grays,
167 A.3d 793, 815 (Pa. Super. 2017). “An appellant must satisfy a four-part
test to invoke this Court’s jurisdiction when challenging the discretionary
aspects of a sentence.” Id. We conduct this four-part test to determine
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see [Pa.R.Crim.P. 720]; (3) whether appellant’s brief
has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there
is a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, [see] 42 Pa.C.S.A.
§ 9781(b).
Grays, 167 A.3d at 815-16 (citation omitted).
A discretionary aspects of sentencing claim must be preserved either at
sentencing or in a post-sentence motion before the trial court.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). With respect to a claim of ineffective assistance of counsel
regarding the failure to file post-sentence motions, our Supreme Court has
concluded that “counsel’s failure to file post-sentence motions [does] not fall
within the narrow ambit of ineffectiveness claims requiring no finding of
prejudice.” Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super.
2011). Thus, in order to obtain relief on his ineffectiveness claim, an appellant
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must demonstrate that his sentence was excessive such that counsel may be
deemed ineffective in failing to file the post-sentence motion. Id.Humphrey has included the required Pa.R.A.P. 2119(f) Statement in his
brief. Accordingly, we next determine whether Humphrey has presented a
substantial question that his sentence is not appropriate under the Sentencing
Code. See Grays, supra. “An appellant making an excessiveness claim
raises a substantial question when he sufficiently articulates the manner in
which the sentence violates either a specific provision of the sentencing
scheme set forth in the Sentencing Code[,] or a particular fundamental norm
underlying the sentencing process.” Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa. Super. 2014) (internal citations omitted).
In his Rule 2119(f) Statement, Humphreys asserts that the trial court
imposed a sentence of total confinement, which was “unduly excessive and
harsh.” Brief for Appellant at 9. According to Humphrey, the trial court
improperly focused solely on the seriousness of the crime, without
consideration of “his unique circumstances and rehabilitative needs.” Id.Humphrey further asserts that the trial court improperly imposed a sentence
of total confinement, without the benefit of a presentence investigation report.
Id.A substantial question exists where there is an allegation that the
sentencing court failed to consider the factors set forth in 42 Pa.C.S.A.
§ 9721(b), which includes a consideration of the defendant’s rehabilitative
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needs. See Commonwealth v. Serrano, 150 A.3d 470, 473 (Pa. Super.
2016) (finding a substantial question where the appellant claimed the trial
court failed to consider his individualized needs); Commonwealth v.
Coulverson, 34 A.3d 135, 143 (Pa. Super. 2011) (finding a substantial
question where the appellant argued the trial court focused on the seriousness
of the offense, did not consider his rehabilitative needs, and evinced a “fixed
purpose of keeping [the appellant] in jail for his life”). Thus, Humphrey has
presented a substantial question for our review. See id. Accordingly, we will
consider his discretionary aspects of sentencing challenge, in the context of
his ineffectiveness claim.
Humphrey asserts that his sentence is excessive because it was
intended to make him eligible for the Motivational Boot Camp Program. Brief
for Appellant at 31. Humphrey argues that, because his escape conviction
disqualified him for Motivational Boot Camp, his state sentence of two to four
years is excessive. Id. Humphrey further argues that his sentence was
manifestly unreasonable, because he had spared the Commonwealth “the task
of putting forth evidence and establishing their cases[,] because he accepted
responsibility for his actions.” Id. at 32. Humphrey also asserts that the trial
court improperly failed to consider his drug addiction and mental health
disorders. Id. Finally, Humphrey argues that the trial court improperly based
its sentence on the seriousness of the underlying offense. Id. at 33.
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Contrary to Humphrey’s claim, our review of the record discloses that
the trial court considered Humphrey’s mental health disorders, his unique
circumstances and rehabilitative needs when imposing its sentence. See N.T.,
2/14/20, at 15-17 (wherein at the sentencing hearing, Attorney Reynolds
detailed Humphrey’s drug addiction and mental disorders), 21 (wherein the
trial court imposed no further penalty at No. 9943, to allow Humphrey to be
statutorily eligible for Motivational Boot Camp). Further, our review discloses
that the trial court imposed the sentence requested by his counsel. See id.
at 20 (wherein the trial court sentenced Humphrey in accordance with the
request of his counsel).
Regarding Humphrey’s claim that the trial court sentenced him without
the benefit of a presentence investigation report, we observe that the trial
court proceeded immediately to sentencing, at Humphrey’s request. See id.
at 15.
Our review also discloses that the record reflects no agreement or
understanding by the Commonwealth or Humphrey regarding the length of
Humphrey’s sentences, only that all sentences would run concurrent to his
sentence at No. 762. See N.T., 2/14/20, at 5-6 (wherein the Commonwealth
stated on the record that the parties could reach no agreement as to the
sentence at No. 762, only that all other sentences would be imposed
concurrent to that sentence). At No. 762, for his conviction of carrying a
firearm without a license, the trial court imposed a sentence of 24-48 months,
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which is below the standard guidelines range of 42 to 84 months for that
offense. “[W]here a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the Sentencing
Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)
(citation omitted). All other sentences were imposed concurrently with
Humphrey’s sentence at No. 762. Thus, Humphrey’s challenge to his sentence
as excessive lacks merit.
Because there is no arguable merit to Humphrey’s underlying sentencing
challenge, his claim of ineffective assistance of counsel claim fails. See
Turetsky, 925 A.2d at 880; see also Daniels, 963 A.2d at 419. We therefore
affirm the Order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2021
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