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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TROY MARTIN
Appellant No. 2177 EDA 2015
Appeal from the PCRA Order July 14, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1302354-2006
BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 03, 2016
Troy Martin appeals from the order entered in the Court of Common
Pleas of Philadelphia County denying his petition pursuant to the Post-
Conviction Relief Act (PCRA).1 After careful review, we affirm.
On April 11, 2008, Martin entered a negotiated guilty plea to robbery,
aggravated assault, and possession of an instrument of crime (PIC).
Pursuant to the terms of his negotiated guilty plea, the trial court sentenced
him to an aggregate term of ten to thirty years’ incarceration.
Martin filed a notice of appeal on April 16, 2008. On April 30, 2008,
the trial court ordered Martin to file a concise statement of errors
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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complained of on appeal pursuant to Pa.R.A.P. 1925(b). Because Martin
failed to file a Rule 1925(b) statement, the trial court filed an opinion on July
24, 2008, indicating that Martin had waived any claims on appeal. On
October 7, 2008, this Court dismissed Martin’s appeal for failure to file a
brief.
Following the reinstatement of Martin’s appellate rights nunc pro tunc,
he filed a timely notice of appeal and a Rule 1925(b) statement alleging
several errors by the trial court. The trial court filed an opinion addressing
Martin’s asserted errors on March 2, 2010. This Court affirmed Martin’s
judgment of sentence on January 21, 2011. Commonwealth v. Martin, 23
A.3d 1087 (Pa. Super. 2010) (unpublished memorandum). Martin then filed
a timely petition for allowance of appeal, which our Supreme Court denied
on June 30, 2011. Commonwealth v. Martin, 23 A.3d 1055 (Pa. 2011).
On February 24, 2012, Martin filed a timely pro se PCRA petition
raising eleven issues for review, and on June 6, 2012, the court appointed
Peter A. Levin, Esquire, to represent Martin. Counsel filed an amended PCRA
petition on January 21, 2014, alleging three additional grounds for relief.
The trial court dismissed Martin’s PCRA petition on July 15, 2015.
Martin filed a timely notice of appeal on July 20, 2015, and on August
13, 2015, he filed a Rule 1925(b) statement alleging that the trial court
erred by denying his PCRA petition without a hearing. He further alleged
that the trial court erred by denying relief on the claims raised in his
amended PCRA petition that counsel was ineffective for: (1) causing him to
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enter an unknowing and involuntary guilty plea; (2) failing to file post
sentence motions; and (3) failing to provide the court with correct
information regarding DNA costs. Statement of [Errors] Complained of on
Appeal, 8/13/15, at 1. The trial court filed its Rule 1925(a) opinion on
August 18, 2015.
On appeal, Martin raises the following issues for our review:
I. Whether the PCRA Judge was in error in denying [Martin’s]
PCRA petition without an evidentiary hearing on the issues
raised in the amended PCRA petition regarding trial
counsel’s ineffectiveness.
II. Whether the PCRA Judge was in error in not granting relief
on the PCRA petition alleging counsel was ineffective.
Appellant’s Brief, at 8.
Our standard and scope of review for the denial of a PCRA petition is
well-settled. We review the PCRA court’s findings of fact to determine
whether they are supported by the record, and review its conclusions of law
to determine whether they are free from legal error. Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our 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. Id.
To establish counsel’s ineffectiveness, a petitioner must demonstrate:
(1) the underlying claim has arguable merit; (2) counsel had no reasonable
basis for the course of action or inaction chosen; and (3) counsel’s action or
inaction prejudiced the petitioner. Commonwealth v. Burno, 94 A.3d 956,
964 n.5 (Pa. 2014); Strickland v. Washington, 466 U.S. 668 (1984).
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A failure to satisfy any prong of the ineffectiveness test requires
rejection of the claim. The burden of proving ineffectiveness
rests with the Appellant. To sustain a claim of ineffectiveness,
Appellant must prove that the strategy employed by trial counsel
was so unreasonable that no competent lawyer would have
chosen that course of conduct. Trial counsel will not be deemed
ineffective for failing to pursue a meritless claim.
Commonwealth v. Rega, 933 A.2d 997, 1019 (Pa. 2007).
A PCRA court is only required to hold an evidentiary hearing where
there is an issue of material fact. Pa.R.Crim.P. 909(B)(1)-(2). “[W]hen
there are no disputed factual issues, an evidentiary hearing is not required.”
Commonwealth v. Morris, 684 A.2d 1037, 1042 (Pa. 1996). An
evidentiary hearing is unwarranted where a PCRA petitioner’s offer of proof
is insufficient to establish a prima facie case, or his allegations are refuted
by the existing record. Commonwealth v. Eichinger, 108 A.3d 821, 849
(Pa. 2014).
First, Martin argues that trial counsel was ineffective for causing him to
enter an unknowing and involuntary plea. In order to determine whether
Martin entered his plea knowingly, intentionally, and voluntarily, we must
examine the plea colloquy. At a minimum, a plea colloquy must inform a
defendant of: (1) the nature of the charges; (2) the factual basis for the
plea; (3) the right to be tried by a jury; (4) the presumption of innocence;
(5) the permissible range of sentences; and (6) the fact that the judge is not
bound by the terms of any plea agreement. Commonwealth v. Bedell,
954 A.2d 1209, 1212 (Pa. Super. 2008). The adequacy of the plea colloquy
and the voluntariness of the resulting plea must be ascertained based on the
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totality of the circumstances surrounding the entry of the plea.
Commonwealth v. Muhammad, 794 A.2d 378, 383- 84 (Pa. Super. 2002).
During the course of a plea colloquy, a defendant has a duty to answer
questions truthfully and cannot later assert that he lied under oath.
Commonwealth v. Turetsky, 925 A.2d 876 (Pa. Super. 2007).
This Court previously addressed the claim of involuntariness raised by
Martin on direct appeal. This Court offered the following analysis of Martin’s
oral and written plea colloquies under the standard set forth in Bedell:
The record, as a whole, belies Martin’s claim. The trial court
provided a thorough oral colloquy to Martin. While at one point
it appeared Martin believed his agreed upon sentence was for
10-20 years, the record demonstrates he was properly informed
what the actual sentence was and, further, he agreed to the
sentence. Not only did the oral colloquy clearly state the
sentence, the written guilty plea colloquy, signed by Martin, also
clearly stated the negotiated sentence to be 10-30 years’
incarceration.
...
The record as a whole shows Martin entered into the plea with
his eyes open; it was a knowing, intelligent and voluntary plea.
The fact he filed an appeal challenging the legality of his
sentence does not negate the validity of his plea. Rather, it
appears Martin was simply disappointed with the reality of his
sentence. Such disappointment does not render a plea invalid
and is not reason to allow the withdrawal of an otherwise valid
plea. See Bedell, supra.
Commonwealth v. Martin, 2474 EDA 2009, unpublished memorandum at
4-6 (Pa. Super. filed January 21, 2011). Accordingly, Martin has failed to
demonstrate that his ineffective assistance of counsel claim has arguable
merit. See Burno, supra. Furthermore, the PCRA court did not err in
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failing to grant Martin an evidentiary hearing on this claim because Martin’s
offer of proof was insufficient to establish a prima facie case. See
Eichinger, supra.
Next, Martin argues that trial counsel was ineffective for failing to file
post-sentence motions. Our Supreme Court has held that the failure to file
post-sentence motions does not fall within the limited ambit of situations
where a defendant alleging ineffective assistance of counsel need not prove
prejudice to obtain relief. Commonwealth v. Reaves, 923 A.2d 1119 (Pa.
2007). Therefore, Martin bears the burden of pleading and proving that trial
counsel’s failure to file post-sentence motion prejudiced him – meaning
Martin must show that if counsel had filed post-sentence motions, this court
would have granted them. See Commonwealth v. Liston, 977 A.2d 1089,
1092 (Pa. 2009).
Specifically, Martin alleges that trial counsel was ineffective for failing
to file a post-sentence motion for reconsideration of his sentence. In its
Rule 1925(a) opinion, the trial court explicitly stated that it would not have
granted a motion to reconsider Martin’s sentence because it was a
negotiated sentence and Martin failed to present any evidence that
warranted reconsideration of the sentence. Trial Court Opinion, 8/18/15, at
14. We agree with the trial court that Martin has failed to prove that he was
prejudiced by trial counsel’s failure to file post-sentence motions. Therefore,
we agree with the trial court that Martin’s claim that counsel was ineffective
for failure to file post-sentence motions is meritless. See Burno, supra.
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We also hold that the PCRA court did not err in declining to grant Martin an
evidentiary hearing on this claim because Martin’s offer of proof was
insufficient to establish a prima facie case. See Eichinger, supra.
Finally, Martin argues that trial counsel was ineffective for failing to
provide him with accurate information regarding DNA costs. Martin appears
to take umbrage at the fact that he was required to bear the cost of DNA
testing although the Commonwealth ordered the tests and that no hearing
was held to determine whether he was able to bear the cost of the tests.
Appellant’s Brief, at 9. Martin cites two cases, Osbourne v. U.S., 557 U.S.
52 (2009), and Commonwealth v. Dean, 564 A.2d 1002 (Pa. Super.
1989), which he claims support the proposition that a criminal defendant is
not responsible for the cost of DNA testing tied to his prosecution. Id.
However, as correctly recognized by the trial court, Pennsylvania law
requires that defendants pay for laboratory testing costs incurred in the
prosecution of their criminal cases. See 42 Pa.C.S. § 1725.3. Furthermore,
the trial court has correctly pointed out that neither Osbourne nor Dean
supports Martin’s claim that this statute should not apply to him. Therefore,
we find that Martin had no reasonable basis on which to challenge the trial
court’s imposition of DNA costs upon him. As a result, we hold that Martin’s
ineffectiveness claim does not have arguable merit and that Martin was not
prejudiced by trial counsel’s failure to provide him with accurate information
regarding DNA costs. See Burno, supra. Furthermore, we hold that the
PCRA court did not err in failing to grant Martin an evidentiary hearing on
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this claim because Martin’s offer of proof was insufficient to establish a prima
facie case. See Eichinger, supra.
Order affirmed.2
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2016
____________________________________________
2
In its Rule 1925(a) opinion, the trial court notes that counsel filed an
amended PCRA petition raising three additional grounds for relief. However,
because counsel did not seek leave to amend the petition, the court asserts
that pursuant to Commonwealth v. Baumhammers, 92 A.3d 708, 730-31
(Pa. 2014), the three issues raised in the amended PCRA petition should be
considered waived. Martin’s pro se petition raises the following question:
“Was trial counsel ineffective for . . . not filing post-sentence motions?”
Memorandum of Law in Support of PCRA Petition?” 2/24/12, at 2.
Accordingly, this issue was clearly included in both the pro se and amended
petitions. The pro se Petition also raises the following question: “Was the
defendant[’s] guilty plea knowing, intelligent and voluntary.” Id. The
amended petition presents the same issue as an ineffectiveness claim. The
pro se petition also raises the following question: “Did the trial court err in
imposing DNA-lab fines, when, in fact, [the] trial court had full knowledge
that [the] [C]ommonwealth order[ed] the blood work to be completed.” Id.
Again, the amended petition raises this claim as an ineffectiveness claim.
Because the post sentence motion, guilty plea and DNA costs issues can be
construed as reasonably subsumed in the original petition, Baumhammers,
supra at 731, we conclude they are not waived.
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