Com. v. Davis-Osterhoudt, C.

J-S10001-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CAMDYN DAVIS-OSTERHOUDT :
:
Appellant : No. 1251 MDA 2021
Appeal from the PCRA Order Entered September 17, 2021
In the Court of Common Pleas of Tioga County
Criminal Division at CP-59-CR-0000333-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED APRIL 01, 2022
Camdyn Davis-Osterhoudt (Appellant) appeals from the order denying
his first petition filed pursuant to the Post Conviction Relief Act (PCRA). See
42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously detailed the factual and procedural history of this
case as follows:
On September 6, 2018, Appellant and Naseer Timothy
Burzak (Co-Defendant) entered the victims’ residence armed with
an assault rifle and handgun. Appellant and Co-Defendant were
dressed in black, wearing gorilla masks and black gloves. Holding
the victims at gunpoint, they took $150 in cash, a handgun, a
wallet, a knife, and a cell phone.
Appellant and Co-Defendant were arrested and charged with
numerous offenses, including robbery, criminal conspiracy, and
unlawful restraint. On May 29, 2019, Co-Defendant entered a
guilty plea to one count of robbery, and was sentenced, on
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S10001-22
September 12, 2019, to a term of intermediate punishment.
On August 5, 2019, Appellant entered a guilty plea to one count
of robbery with intent to cause immediate serious injury in
exchange for the nolle pros of his remaining charges.
A sentencing hearing was held on October 28, 2019. The
trial court acknowledged it had reviewed Appellant’s pre-sentence
investigation report (“PSI”), and the parties agreed the sentencing
guidelines called for a standard range sentence of 45 to 63
months’ imprisonment. Appellant argued “he should probably
receive something less[ ]” than Co-Defendant, because “as a
matter of fairness,” Co-Defendant [allegedly] “had a prior record,”
and Appellant did not. [N.T., 10/28/19, at 5]. Notwithstanding
this argument, the trial court imposed a standard range sentence
of 45 to 90 months’ imprisonment.
Commonwealth v. Davis-Osterhoudt, 248 A.3d 464, at **1-2 (Pa. Super.
Jan. 5, 2021) (unpublished memorandum) (emphasis added; citations to
record and footnotes omitted); see also id. at *2 n.6 (stating that neither
Appellant nor Co-Defendant had a prior criminal record).
On November 8, 2019, Appellant, through counsel (prior counsel), filed
an untimely post-sentence motion. Appellant argued he “should have
received the same sentence or perhaps a more lenient sentence than [] Co-
Defendant,” because “the conduct engaged in [by] both of [them] was
identical.” Post-Sentence Motion, 11/8/19, ¶¶ 7, 9. The trial court held a
hearing and denied the post-sentence motion on February 14, 2020.
Appellant filed an untimely notice of appeal on March 31, 2020, followed by
a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
-2-
J-S10001-22
On direct appeal, Appellant argued the trial court “abused its discretion
by imposing a harsher sentence than that received by his Co-Defendant.”
Davis-Osterhoudt, 248 A.3d 464, at *1. We quashed, reasoning:
Appellant was sentenced on October 28, 2019. He then filed
an untimely post-sentence motion on November 8th. As a result,
the appeal period was not tolled. See [Commonwealth v.]
Green, 862 A.2d [613,] 618 [(Pa. Super. 2004) (en banc) (“since
[a]ppellant did not file a timely post-sentence motion, her appeal
period began to run from the date sentence was imposed”); see
also Pa.R.A.P. 903(a) (30-day appeal period)]. Appellant’s notice
of appeal was then due November 26, 2019, 30 days after the
imposition of sentence. See Pa.R.Crim.P. 720(A)(3). However,
Appellant filed his notice of appeal on March 31, 2020, more than
150 days after sentencing. Appellant’s notice of appeal was
therefore untimely filed.
Davis-Osterhoudt, supra, at *7 (emphasis in original; footnotes omitted).
We further stated:
Assuming arguendo this Court had jurisdiction to consider
the merits of Appellant’s case, we would conclude his disparate
sentence claim is waived for failure to include the argument in his
1925(b) concise statement. See Pa.R.A.P. 1925(b)(4)(ii)
(litigants are required to “concisely identify each error that the
appellant intends to assert with sufficient detail to identify the
issue to be raised for the judge.”); see also Commonwealth v.
Castillo, 585 Pa. 395, 888 A.2d 775, 780 (Pa. 2005) (“issues not
raised in a Pa.R.A.P.1925(b) statement will be deemed waived.”).
Appellant’s 1925(b) concise statement alleges the trial court
imposed a manifestly excessive sentence by failing to consider “all
relevant statutory sentencing factors[.]” Appellant’s Concise
Statement of Matters Complained of on Appeal Pursuant to Rule
1925(b) Order, 4/23/20. However, in his brief, Appellant simply
argues the court abused its discretion in imposing a “far greater
and more harsh sentence than” Co-Defendant. Appellant’s Brief
at 12. Thus, his disparate sentence claim would be waived.
Moreover, we note “it has never been a rule in this Commonwealth
that co-defendants are required to receive equal sentences[.]”
Commonwealth v. Krysiak, 369 Pa. Super. 293, 535 A.2d 165,
167 (Pa. Super. 1987) (citation omitted).
-3-
J-S10001-22
Davis-Osterhoudt, supra, at *7 n.11.
On January 25, 2021, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed counsel, who filed an amended PCRA petition on March
24, 2021. Appellant asserted ineffective assistance of prior counsel for failing
to timely file a direct appeal and preserve Appellant’s sentencing issue. See
Amended PCRA Petition, 3/24/21, at 3-4; see also 42 Pa.C.S.A. §
9543(a)(2)(ii) (relief for ineffective assistance of counsel). Appellant further
claimed the court imposed a sentence greater than the lawful maximum.
Appellant “requested that his sentence be modified to generally conform to
the sentence imposed upon his Co-Defendant.” Amended PCRA Petition,
3/24/21, at 3; see also 42 Pa.C.S.A. § 9543(a)(2)(vii) (relief for unlawful
sentences). On May 4, 2021, the Commonwealth filed an answer in
opposition. The PCRA court held a hearing on June 11, 2021.
On September 17, 2021, the PCRA court denied Appellant’s petition. In
an accompanying opinion, the PCRA court addressed the disparity in the
sentences of Appellant and Co-Defendant:
At the time [the trial] court imposed sentence upon
Appellant’s Co-Defendant, the court erred when it imposed a
county intermediate punishment sentence upon
Appellant’s Co-Defendant. Neither Co-Defendant nor Appellant
met the statutory definition of an “eligible offender” for County
intermediate punishment pursuant to 42 Pa.C.S.A. § 9802 since
their robbery convictions precluded both from the program. Prior
to imposing sentence upon Appellant, the court became
aware of this error. Rather than compound the issue by
sentencing Appellant to a likewise illegal sentence, the court
instead imposed a term of imprisonment upon him for a minimum
-4-
J-S10001-22
period of 45 months [to] a maximum period of 90 months. This
sentence is at the very bottom of the guideline range for the
deadly weapon enhancement that this court determined applied
based upon Appellant’s possession of a deadly weapon.
PCRA Court Opinion, 9/17/21, at 2 n.4 (emphasis added).
In addition, the PCRA court rejected Appellant’s claim of ineffectiveness
of prior counsel with respect to Appellant’s “disparate sentencing” claim,
concluding Appellant failed to establish that the outcome of his direct appeal
would have been different had prior counsel preserved the claim. See id. at
5-7; Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (to prove
ineffectiveness, the petitioner must prove, inter alia, “he suffered prejudice as
a result of counsel’s error, with prejudice measured by whether there is a
reasonable probability the result of the proceeding would have been
different.”). The PCRA court reasoned:
Notwithstanding prior counsel’s failure to preserve the claim in the
trial court and failure to correctly frame the issue in his 1925(b)
Statement, the Superior Court[, on direct appeal,] correctly
identified the claim as a disparate sentence claim. Moreover, the
Superior Court continued to note that “it has never been a rule in
this Commonwealth that co-defendants are required to receive
equal treatment,” [Davis-Osterhoudt, supra, at *7 n.11] citing
Krysiak[, supra].
PCRA Court Opinion, 9/17/21, at 7.
Appellant timely appealed. Both the PCRA court and Appellant complied
with Pa.R.A.P. 1925. On appeal, Appellant presents three issues for review:
I. Did the trial court err in concluding that the general
prohibition against significant disparities in the sentences of
co-defendants who are sentenced by the same judge, absent
-5-
J-S10001-22
facts-of-record supporting the disparity, does not apply when
the disparity is the result of an earlier grant [of] leniency?
II. Did the trial court err in concluding that the Commonwealth’s
failure to challenge the erroneous imposition of a county
intermediate punishment sentence when sentencing one
defendant is not equally binding upon the Commonwealth
with respect to an identically situated co-defendant?
III. Did the trial court err by relying on dicta in the Superior
Court’s January 5, 2021 decision to conclude that [Appellant]
was not prejudiced by prior counsel’s failure to preserve a
challenge to [Appellant’s] sentence premised on the disparity
between his sentence and his codefendant’s sentence?
Appellant’s Brief at 6 (issues reordered, capitalization omitted).1
“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court’s ruling is
supported by the record and free of legal error.” Commonwealth v. Hand,
252 A.3d 1159, 1165 (Pa. Super. 2021) (citation omitted). “[W]e will not
disturb the findings of the PCRA court unless those findings have no support
in the certified record.” Commonwealth v. Rivera, 154 A.3d 370, 377 (Pa.
Super. 2017) (en banc).
As Appellant’s issues are related, we address them together. Appellant
argues the trial court imposed an unlawful sentence where Appellant “and his
Co-Defendant committed the same crime, entered essentially identical pleas
as part of essentially identical plea bargains, and had the same prior record
score of zero,” but Co-Defendant received a lenient sentence of intermediate
____________________________________________
1 The Commonwealth has not filed a reply brief.
-6-
J-S10001-22
punishment, in contrast to Appellant’s state prison sentence. Appellant’s Brief
at 29. According to Appellant, “[e]ven if [Appellant’s] sentence would have
been legal in isolation, the extreme and disparate impact on the two
identically-situated co-defendants renders it illegal.” Id. at 24 (emphasis
omitted). Appellant contends the PCRA court “also failed to disclose on the
record any basis for the resulting sentencing disparity until it issued its
September 17, 2021 Opinion in support of dismissing [Appellant’s] PCRA
petition.” Id. at 17 (emphasis in original) (citing PCRA Court Opinion,
9/17/21, at 2 n.4). Finally, Appellant claims “the trial court erred in concluding
that the Commonwealth’s failure to challenge the erroneous imposition of a
county intermediate punishment sentence when sentencing one defendant[,
i.e., Co-Defendant,] is not equally binding upon the Commonwealth with
respect to an identically situated co-defendant[.]” Id. at 27.
We first examine whether Appellant’s claims are cognizable under the
PCRA. Although Appellant claims to be challenging the legality of his sentence,
his argument (the trial court improperly imposed disparate sentences on
identically situated co-defendants) challenges the discretionary aspects of his
sentence. See Appellant’s Brief at 21-23 (analysis of discretionary aspects of
sentencing claims); Commonwealth v. Cleveland, 703 A.2d 1046, 1048
(Pa. Super. 1997) (claim “alleging an unexplained disparity between
[defendant’s] sentence and that of a co-defendant” implicates the
discretionary aspects of sentencing). “Challenges to the discretionary aspects
-7-
J-S10001-22
of sentencing are not cognizable under the PCRA.” Commonwealth v.
Fowler, 930 A.2d 586, 593 (Pa. Super. 2007) (citing 42 Pa.C.S.A. §
9543(2)(vii); Commonwealth v. Evans, 866 A.2d 442, 444-45 (Pa. Super.
2005)). Thus, Appellant’s claims are not cognizable.
Appellant additionally claims that prior counsel was ineffective for failing
to preserve his disparate sentencing issue on direct appeal. See, e.g.,
Appellant’s Brief at 14-16, 20-21, 29. This claim, which Appellant preserved,
see Amended PCRA Petition, 3/24/21, ¶¶ 13-21, is cognizable under the
PCRA. Commonwealth v. Sarvey, 199 A.3d 436, 455 (Pa. Super. 2018)
(“claims implicating the discretionary aspects of sentencing raised in the
context of an ineffectiveness claim are cognizable under the PCRA.”).
Regarding ineffectiveness, the Pennsylvania Supreme Court has stated:
Counsel is presumed effective, and to rebut that presumption, the
PCRA petitioner must demonstrate that counsel’s performance
was deficient and that such deficiency prejudiced him. … [T]o
prove counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. If a petitioner fails to prove
any of these prongs, his claim fails. Generally, counsel’s
assistance is deemed constitutionally effective if he chose a
particular course of conduct that had some reasonable basis
designed to effectuate his client’s interests. Where matters of
strategy and tactics are concerned, a finding that a chosen
strategy lacked a reasonable basis is not warranted unless it can
be concluded that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued. To
demonstrate prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different. A
reasonable probability is a probability that is sufficient to
undermine confidence in the outcome of the proceeding.
-8-
J-S10001-22
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations omitted).
Here, Appellant argues:
It is undisputed that prior counsel (i) failed to file a timely
post-sentence motion, (ii) failed to file a timely appeal, and (iii)
failed to properly preserve a challenge premised specifically on
disparate sentencing. A colorable and reviewable challenge to the
disparity between [Appellant’s] sentence and that of his Co-
Defendant existed, and [Appellant] was therefore prejudiced when
he was denied the opportunity to have the Superior Court consider
that issue.
Appellant’s Brief at 16.
Appellant further asserts the PCRA court “erred in concluding that prior
counsel’s error in negligently waiving the disparate-sentencing issue was
harmless[.]” Id. at 14. Specifically, Appellant alleges the court erred by
relying on this Court’s prior statement on direct appeal that “it has never been
a rule in this Commonwealth that co-defendants are required to receive equal
sentences,” Davis-Osterhoudt, supra, at *7 n.11 (citation omitted),
because “such statement is mere dicta.” Appellant’s Brief at 14.
To succeed on an ineffectiveness claim for failure to preserve a challenge
to the discretionary aspects of sentencing, the petitioner must demonstrate
the underlying sentencing claim merits relief. See Commonwealth v.
Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (“[I]f the PCRA court can
determine from the record that the sentence was not excessive, … then there
is no underlying merit to the ineffectiveness claim and the claim must fail.”);
see also Commonwealth v. Reaves, 923 A.2d 1119, 1131-32 (Pa. 2007)
-9-
J-S10001-22
(a claim of ineffectiveness for failure to preserve discretionary sentencing
issue requires showing of reasonable probability that sentencing court would
have imposed lesser sentence). “Sentencing is a matter vested in the sound
discretion of the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion.” Commonwealth v. Barnes,
167 A.3d 110, 122 n.9 (Pa. Super. 2017) (en banc) (citation omitted).
Regarding disparate sentences of co-defendants,
a defendant is not entitled to the same sentence as that imposed
on another person involved in the same crime. Commonwealth
v. Mastromarino, … 2 A.3d 581, 589 (Pa. Super. 2010). Rather,
“when there is a disparity between co-defendants’ sentences, a
sentencing court must give reasons to each defendant explaining
why they received their individual sentences.” Id. (quotation
marks and quotation omitted).
Commonwealth v. Ali, 197 A.3d 742, 764 (Pa. Super. 2018); see also
Commonwealth v. Szczesniewski, 591 A.2d 1055, 1056 (Pa. Super. 2010).
However, the sentencing court is not required to justify the disparity with
reference to the specific sentence imposed on the co-defendant. Cleveland,
703 A.2d at 1048.
Here, the court stated its rationale for imposing Appellant’s sentence,
noting the severity of the crime and impact on the victims, but also recognizing
Appellant’s youth and potential for rehabilitation. See N.T., 10/28/19, at 6
(“This of course is a horrible offense, to have someone come into your home
and threaten you in this fashion; … you’re a young person with a lot of life
ahead of you, and I commend you for the fact that you want to get this
- 10 -
J-S10001-22
resolved and move on with your working life and with your family life.”). 2
Moreover, the court was informed by a PSI, see id. at 1. It is “presumed that
the court [wa]s aware of all appropriate sentencing factors and considerations,
and [] where the court has been so informed, its discretion should not be
disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super.
2009) (citing Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988)).
In sum, our review discloses that Appellant’s sentence – at the low end
of the standard range of the guidelines – was not excessive or unreasonable.
The record reflects that the court considered the PSI and all evidence
presented at the sentencing hearing (as well as all relevant statutory factors,
see 42 Pa.C.S.A. § 9721(b)), and sentenced Appellant accordingly. See, e.g.,
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (stating
“where a sentence is within the standard range of the guidelines, Pennsylvania
law views the sentence as appropriate under the Sentencing Code,” and
holding sentence was not unreasonable where court had the benefit of a PSI
and imposed a standard range sentence); Commonwealth v. Raven, 97
A.3d 1244, 1254-55 (Pa. Super. 2014) (defendant’s standard-range sentences
were neither unreasonable nor excessive where “the record reflects that the
[sentencing] court carefully considered all of the evidence presented at the
sentencing hearing.”).
____________________________________________
2The court also considered defense counsel’s argument that Appellant “should
probably receive something less” than Co-Defendant. Id. at 5.
- 11 -
J-S10001-22
As the trial court set forth adequate reasons for Appellant’s sentence,
and Appellant’s disparate sentencing issue lacks merit, prior counsel was not
ineffective. See Jones, 942 A.2d at 907-08 (rejecting claim of ineffectiveness
for failure to preserve challenge to discretionary aspects of sentencing where
there was no merit to the claim); see also Commonwealth v. Ligons, 971
A.2d 1125, 1156 (Pa. 2009) (counsel cannot be deemed ineffective for failing
to raise a meritless claim).
Finally, as prior counsel was not ineffective, there is no merit to
Appellant’s claim that the PCRA court erred by relying on language from a
footnote in Davis-Osterhoudt, supra. See PCRA Court Opinion, 10/27/21,
at 9 (“the court did not pull the dicta into this case to support its conclusion,
but instead reviewed the context of the entire portion of the dicta relied upon
by Appellant and determined that this evidence was insufficient to sustain
Appellant’s burden that [prior] counsel’s alleged ineffectiveness prejudiced
him.” (emphasis omitted)).
For the above reasons, the PCRA court dd not err in denying Appellant’s
petition for post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/01/2022
- 12 -