Com. v. Oxner, R.

J-S45017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD OXNER, :
:
Appellant : No. 1534 EDA 2018
Appeal from the PCRA Order May 15, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007212-2013,
CP-51-CR-0008970-2015, CP-51-CR-0009943-2015,
CP-51-CR-0014276-2011, MC-51-CR-0029660-2015
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED AUGUST 16, 2019
Richard Oxner (Appellant) appeals from the order denying his timely
petition seeking relief under the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized:
Simply put, on February 4, 2016, [Appellant] was found to
be in violation of probation (“VOP”) on two prior Bills of
Information. On the same date, [Appellant] entered into “non-
negotiated” pleas of guilty on three separate Bills of Information.
At CP-51-CR-0008970-2015, [Appellant] entered into a non-
negotiated plea on the charge of PWID; at CP-51-CR-0009943-
2015, [Appellant] entered into a non-negotiated guilty plea on the
charge of PWID; and at MC-51-CR-0029660-2015, [Appellant]
entered into a non-negotiated guilty plea on the charge of simple
possession. The court revoked his bail and scheduled a sentencing
hearing on all five Bills of Information on April 15, 2016.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S45017-19
At his sentencing hearing held on April 15, 2016, [Appellant]
was first sentenced on his three non-negotiated pleas to
concurrent periods of confinement in a state correctional
institution of 4 to 8 years on the first PWID charge, 2 to 8 years
on the second PWID charge, and 1 to 2 years on the simple
possession charge, for an aggregate sentence of 4 to 8 years. He
was then sentenced on his two “VOP” charges to concurrent
periods of confinement of 1 to 2 years on the charges of
possession of an instrument of crime (PIC) and conspiracy and a
consecutive period of confinement of 1 to 3 years on the charge
of PWID, for an aggregate period of confinement of 2 to 5 years.
The court also ordered that his sentences on the pleas were to be
served consecutively to his VOP sentences for a total aggregate
sentence of 6 to 13 years confinement.
[Appellant] filed neither a motion for reconsideration of his
sentence nor a direct appeal.
PCRA Court Opinion, 11/19/18, at 1-2 (footnote omitted).
Appellant filed the underlying PCRA petition pro se on October 14, 2016.
Appellant subsequently obtained representation, and on August 10, 2017,
Appellant’s counsel filed an amended PCRA petition. On March 13, 2018, the
PCRA court issued notice of intent to dismiss the petition without a hearing
pursuant to Pennsylvania Rule of Criminal Procedure 907. On May 15, 2018
the PCRA court entered the order denying the petition. Appellant filed this
timely appeal on May 25, 2018. Both the PCRA court and Appellant have
complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant presents two questions on appeal:
I. Whether the court erred in denying the Appellant’s PCRA
petition without an evidentiary hearing on the issues raised
in the amended PCRA petition regarding trial counsel’s
ineffectiveness.
II. Whether the court erred in not granting relief on the PCRA
petition alleging counsel was ineffective.
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Appellant’s Brief at 8.
In his first issue, Appellant claims that the PCRA court erred by failing
to hold an evidentiary hearing. We recently repeated our standard of review:
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the findings of the PCRA court and the evidence
of record in a light most favorable to the prevailing party. With
respect to the PCRA court’s decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing, such
a decision is within the discretion of the PCRA court and will not
be overturned absent an abuse of discretion.
Commonwealth v. Maddrey, 205 A.3d 323, 327 (Pa. Super. 2019) (citation
omitted).
Instantly, Appellant concedes that his right to an evidentiary hearing is
not absolute. Appellant’s Brief at 19 (citation omitted). In the remainder of
his argument, however, Appellant simply recites general case law,
emphasizing that a hearing is warranted “on any issue that the PCRA court is
not certain lacks merit.” Id. at 19-20 (citations omitted). Critically, Appellant
fails to relate the case law he cites to the record — including his petitions —
and the PCRA court’s decision not to hold a hearing. See id. We therefore
find that this issue is undeveloped and waived. See Commonwealth v.
Spotz, 18 A.3d 244, 323 (Pa. 2011) (where appellant included no argument
as to the court’s alleged error, claim is “completely undeveloped and
unreviewable, and, accordingly, it is waived.”). Our Supreme Court has long
held that it is not this Court’s obligation to formulate arguments on behalf of
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an appellant. Commonwealth v. Wright, 961 A.2d 119, 135 (Pa. 2008);
see also Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
(stating “where an appellate brief . . . fails to develop the issue in [a]
meaningful fashion capable of review, that claim is waived”);
Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (“[I]t is a well-
settled principle of appellate jurisprudence that undeveloped claims are
waived and unreviewable on appeal.”).
In his second issue, Appellant argues that the PCRA court erred by failing
to find trial counsel ineffective. Citing his amended petition, Appellant
contends that after sentencing, he asked counsel to file a motion for
reconsideration, and appeal if the motion was denied. Appellant’s Brief at 21.
Appellant states that he was unable to reach his counsel and “spoke with the
secretary with his request.” Id. Appellant claims that counsel’s failure to file
a motion for reconsideration constituted ineffective assistance because “a
reasonable judge would have granted a reconsideration motion” where the
sentencing court “failed to give any consideration to any of the relevant
sentencing factors when it imposed the lengthy sentence.” Id. at 23. For
these reasons, Appellant concludes that he “suffered actual prejudice as a
result of counsel’s failure to file a reconsideration motion.” Id.
We again note our standard of review:
As a general proposition, an appellate court reviews
the PCRA court’s findings to see if they are supported
by the record and free from legal error. The court’s
scope of review is limited to the findings of the PCRA
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court ... viewed in the light most favorable to the
prevailing party.
***
To prevail on a claim that counsel was constitutionally
ineffective, [Appellant] must overcome the presumption of
competence by showing that: (1) his underlying claim is of
arguable merit; (2) the particular course of conduct pursued
by counsel did not have some reasonable basis designed to
effectuate his interests; and (3) but for counsel’s
ineffectiveness, there is a reasonable probability that the
outcome of the challenged proceedings would have been
different. A failure to satisfy any prong of [this] test[, also
referred to as the Pierce test,] ... will require rejection of the
claim.
Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super.
2008) (citation omitted). “In accord with these well-established
criteria for review, [an appellant] must set forth and individually
discuss substantively each prong of the [Pierce ] test.”
Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa. Super. 2009).
Mindful of the foregoing, our review of the record reveals no error by
the PCRA court. We note that the Honorable Charles J. Cunningham III
presided over Appellant’s sentencing on April 15, 2016, as well as the
subsequent PCRA proceedings. Sitting as the PCRA court, Judge Cunningham
contradicted Appellant’s claim that counsel was ineffective for failing to file a
motion for reconsideration, stating, “[a]t the conclusion of [Appellant’s]
sentencing hearing, Counsel did in fact make an oral motion seeking
reconsideration of sentence.” PCRA Court Opinion, 11/19/18, at 4. Appellant
has acknowledged this statement, and responded that current counsel “has
been unable to find any oral motion seeking reconsideration of the sentence
in the transcripts.” Appellant’s Brief at 21 n.2.
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Our review reveals that Judge Cunningham comprehensively explained
Appellant’s sentence on the record. See, N.T., 4/15/16, at 23-28.
Immediately thereafter, the following exchange occurred between Judge
Cunningham and Appellant’s counsel:
THE COURT: Does anybody have any questions with regard
to any of this?
COUNSEL: Judge, I have one question, please, and I just –
I’m asking the Court to consider that two-and-a-half to five that
you have currently running consecutive . . . I’m sorry, two to five
that you have running consecutive to the four to eight. I’m asking
the Court to consider running those current, please. . . .
THE COURT: No. No. Absolutely not. The VOPs – you don’t
get a free ride because you get convicted of a subsequent offense.
We don’t just forget that you were on probation and wipe it away.
N.T., 4/15/16, at 28-29. Appellant’s counsel continued to advocate —
unsuccessfully — for a lesser sentence, with the court concluding, “So the total
sentence is six to 13, as I’ve described.” Id. at 30. It is reasonable to
conclude from this record, as the PCRA court did, that counsel sought
reconsideration.
However, even in the absence of counsel’s oral advocacy, the record
does not support Appellant’s claim of ineffectiveness. The PCRA court stated,
“had [Appellant] filed a formal motion for reconsideration, the court would
have denied it, as it did his oral motion.” PCRA Court Opinion, 11/19/18, at
9. The PCRA court accurately recognized that Appellant “must establish actual
prejudice” and “must establish that there was a ‘reasonable probability’ that
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such a motion would have resulted in a reduction of his sentence.” Id. at 6-
7.
The court opined:
In imposing sentence, the court was not unmindful of
counsel’s impassioned plea, for mitigating [Appellant’s] sentence,
in explaining the circumstances leading to [Appellant’s] addiction.
The court also took into account [Appellant’s] taking responsibility
for his actions, stating for the record: “Because it was a plea, at
time of sentencing I always look to the bottom of the sentencing
guidelines. Because I figure, if someone’s pleading guilty and
saying -- admitting what they’re doing, they’ve done, and they
say they’re sorry, and that’s a good indication they’re not going
to come back in front of me.” (N.T., 4/15/16, pg. 24)
As noted above, on April 15, 2016, the court first imposed
sentence on [Appellant’s] three non-negotiated plea agreements.
Prior to the imposition of sentence, it was agreed by counsel that
[Appellant’s] prior record score was 5 and offense gravity score
for the most serious PWID charge was II. It was also agreed that
the guidelines recommendation was 72 to 90 months, +- 12
months. (N.T., 4/15/16, pg. 7) After reviewing [Appellant’s] pre-
sentence report, listening to argument of counsel, the testimony
of [Appellant’s] character witnesses and [Appellant’s] attempts at
rehabilitation, the court, on the PWID charges, imposed
concurrent sentences of periods of confinement of 4 to 8 years
and 2 to 8 years, and on the remaining simple possession charge,
1 to 2 years. [Appellant’s] aggregate sentence of 4 to 8 years, on
these charges, clearly falls below even the mitigated range of the
guidelines. (N.T., 4/15/16, pgs. 7, 24, 25)
With regard to [Appellant’s] “VOP”s, the Court felt
compelled, in light of his prior violations, to impose additional
sentences of confinement. In addressing [Appellant’s] “VOP”s,
the court noted: “On these violations, this is not the first time
we've been here. I mean, we have been here before on violations,
and I have found [Appellant] in violation, and each time I just
impose the same sentence... I just said the same sentence could
stand... And I did the same thing on both of those cases... So you
reach a certain point where I can’t say same sentence to stand or
impose no other sentence because, otherwise, what does
probation mean?” The court imposed an aggregate sentence of 2
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to 5 years, on the “VOP” charges, to be served consecutively to
those sentences imposed as a result of his non-negotiated pleas.
(NT., 4/15/16, pgs. 26, 27)
Furthermore, [Appellant’s] resulting total aggregate
sentence of 6 to 13 years of confinement clearly falls within the
guideline recommendation of 72 to 90 months, ± 12 months on
the most serious charge of PWID. After imposing sentence, the
court added that “if I hadn’t taken into consideration the
mitigation that was presented to me today by his family and in
the presentence report, it would have been very easy to give you
double digits to something... Counsel immediately requested that
the Court reconsider [Appellant’s] sentence, requesting that the
VOP sentences run concurrently to the sentences imposed on the
non-negotiated pleas. In denying counsel’s request the court
stated: “No. No. Absolutely not. The VOPs -- you don’t get a
free ride because you get convicted of a subsequent offense. We
don’t just forget that you were on probation and wipe it away.”
(N.T., 4/15/16, pgs. 28, 29) Nevertheless, [Appellant’s] sentence
was reasonable under the circumstances and had [Appellant] filed
a formal motion for reconsideration, the court would have denied
it, as it did his oral motion.
PCRA Court Opinion, 11/19/18, at 7-8.
Consistent with the foregoing, we find no error by the PCRA court in
rejecting Appellant’s claim of counsel’s ineffectiveness.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/19
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