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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROBERT LEROY MASON,
Appellant No. 235 WDA 2016
Appeal from the PCRA Order February 1, 2016
In the Court of Common Pleas of Potter County
Criminal Division at No(s): CP-53-CR-0000268-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 06, 2016
Appellant, Robert Leroy Mason, appeals from the February 1, 2016
order denying his first petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.
At the guilty plea colloquy, the Commonwealth summarized the facts
of the crimes as follows:
[B]eginning in June of 1998 and then thereafter on dates not
specifically known to the Commonwealth [Appellant] had sexual
intercourse with his step daughter at a family camp . . . Sylvania
Township and in Avis, which is in Clinton County, Pennsylvania.
On those occasions he drugged her and had sex by forcible
compulsion, the sex acts included oral sex on her and forced her
to perform oral sex on him. The victim at the time was 16 years
or younger and [Appellant] was 21 years older than she was.
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*
Retired Senior Judge assigned to the Superior Court.
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N.T., 4/3/13, at 2.
The PCRA court summarized the procedural history as follows:
[Appellant], Robert Mason was charged with several
sexually related crimes perpetrated upon his step daughter who
was between the ages of thirteen and nineteen at the time the
crimes were committed.[1] [Appellant] pled guilty on April 3,
2013 to the charges of Rape, 18 Pa.C.S.A. § 3121 (A) (1) and
IDSI Person Less than 16 Years of Age, 18 Pa.C.S.A. § 3123(A)
(7). [Appellant] was the subject of an evaluation by the Sexual
Offenders Assessment Board which indicated that [Appellant]
was a Sexually Violent Predator (SVP). After a contested
hearing on SVP status on October 25, 2013 the Court did find
that [Appellant] was a[n] SVP. On the same date the [c]ourt
sentenced [Appellant] within the standard range of the
Sentencing Guidelines to a cumulative sentence of 110 to 220
months. [Appellant] filed a Motion for Reconsideration on
November 4, 2013 which the [c]ourt denied on April 15, 2014.[2]
PCRA Court Opinion, 2/1/16, at 1.
Appellant did not file a direct appeal. On April 21, 2015, Appellant
filed a pro se PCRA petition. The PCRA court appointed counsel by order
filed May 5, 2015.3 The court held a hearing on the pro se petition on
January 12, 2016; Appellant participated by telephone conference. The
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1
Appellant, born in August of 1965, was between the ages of thirty-three
and forty years old at the time of the assaults. N.T. (SVP Hearing),
10/25/13, at 8.
2
The trial court continued the hearing on the motion in November of 2013
and January of 2014.
3
In the appointment order, the PCRA court gave counsel thirty days to file
an “Amended PCRA Petition if such a filing is necessary.” Order, 5/5/15. By
order filed July 6, 2015, “having received no such Amended PCRA Petition,”
the court scheduled a hearing on the pro se petition. Order, 7/6/15.
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PCRA court denied the petition on February 1, 2016. Appellant filed a timely
notice of appeal to this Court. Both Appellant and the PCRA court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
Should the Superior Court reverse and remand the denial
of Appellants PCRA where ineffective assistance of counsel so
interfered with the Appellants right to receive a fair tribunal and
sentence where:
a. The Appellant was denied the right of allocation at
sentencing?
b. The attorney client relationship and
communication had so deteriorated the Appellant did
not understand the difference between concurrent
and consecutive sentences, the Appellant thought his
plea agreement was for a maximum of two to four
(2-4) years of incarceration, trial counsel failed to
advise the Appellant of the October 25, 2013
sexually violent predator hearing, and failed to
advise him of his reconsideration of sentence hearing
and its results until well after the date of denial?
Appellant’s Brief at 17 (verbatim).
When reviewing the propriety of an order denying PCRA relief, this
Court is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA
court’s findings will not be disturbed unless there is no support for them in
the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.
Super. 2014).
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On appeal, Appellant is alleging trial counsel’s ineffective assistance in
two respects. To plead and prove ineffective assistance of counsel a
petitioner must establish: (1) that the underlying issue has arguable merit;
(2) counsel’s actions lacked an objective reasonable basis; and (3) actual
prejudice resulted from counsel’s act or failure to act. Commonwealth v.
Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc). A claim of
ineffectiveness will be denied if the petitioner’s evidence fails to meet any
one of these prongs. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.
2010). Counsel is presumed to have rendered effective assistance of
counsel. Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015). We
have explained that trial counsel cannot be deemed ineffective for failing to
pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132
(Pa. Super. 2003) (en banc). “We need not analyze the prongs of an
ineffectiveness claim in any particular order. Rather, we may discuss first
any prong that an appellant cannot satisfy under the prevailing law and the
applicable facts and circumstances of the case.” Commonwealth v.
Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citing Commonwealth v.
Albrecht, 720 A.2d 693, 701 (Pa. 1998)).
We first note that Appellant has failed to comply with Pa.R.A.P.
2119(a), which states:
The argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each
part—in distinctive type or in type distinctively displayed—the
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particular point treated therein, followed by such discussion
and citation of authorities as are deemed pertinent.
Pa.R.A.P. 2119(a) (emphasis added). Instead, Appellant labels each
argument in bold type, but fails to confine his argument to the issue labeled.
For example, following his heading regarding the alleged denial of allocution 4
at sentencing, Appellant references case law relating to ineffectiveness for
failure to explain the consequences of pleading guilty, an issue he does not
raise. Appellant’s Brief at 22–24. He includes one conclusory sentence
relating to allocution. Id. at 22.
Appellant also fails to develop this issue in any meaningful way and
does not refer to anything in the record to support his claim. “It is not this
Court’s responsibility to comb through the record seeking the factual
underpinnings of [the appellant’s] claim.” Irwin Union Nat. Bank & Trust
Co. v. Famous, 4 A.3d 1099, 1103 (Pa. Super. 2010) (citing
Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. 1997)).
Moreover, Appellant’s argument does not correspond with the issues
presented and does not facilitate our review. Therefore, we find the issue
waived. See Commonwealth v. Woodard, 129 A.3d 480, 509 (Pa. 2015)
(quoting Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2013), which
stated that “where an appellate brief fails to . . . develop an issue in any
other meaningful fashion capable of review, that claim is waived. It is not
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4
Appellant labels such right as “allocation.” Appellant’s Brief at 22.
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the obligation of an appellate court to formulate [the] appellant’s arguments
for him.”) (internal quotations omitted)).5
Appellant’s second issue asserts that he was provided ineffective
assistance of counsel when his attorney failed to clarify the difference
between concurrent and consecutive sentences and misled him into believing
that he would receive a two-to-four-year sentence. In rejecting this
allegation as lacking arguable merit, we rely on the following explanation by
the PCRA court:
[Trial counsel] testified that District Attorney Watson would
not offer a binding plea of any duration to [Appellant] and that
she never told [Appellant] that he would receive a 2 to 4 year
sentence. Additionally, [trial counsel] averred that she read and
completed a Guilty Plea Statement with [Appellant] which
[Appellant] then signed. At his April 3, 2013 plea hearing
[Appellant] indicated he had read and signed the Guilty Plea
Statement. That Guilty Plea Statement indicated at question
number 19 that the maximum sentence was 10 years, $25,000
fine. As indicated by the record, the [c]ourt further advised
[Appellant] of the maximum possible sentence and [Appellant]
indicated he did not have any questions about the same at his
April 3, 2013 plea hearing. Finally, [Appellant] indicated at his
plea hearing that he had not been promised anything in
exchange for his plea. As there is no credible evidence that
[Appellant] was ever promised a 2 to 4 year sentence and [trial
counsel] testified that he was never promised the same, the
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5
Contrary to Appellant’s testimony at the PCRA hearing that he was not
offered the right of allocution, and his family was denied the right to speak,
the record reveals that the trial court offered Appellant the right of
allocution, trial counsel testified Appellant was given the option to address
the court, and the court indicated that it received and considered Appellant’s
family members’ statements. N.T. (PCRA), 1/12/16, at 20–21; N.T.
(Sentencing), 10/25/13, at 37, 67; PCRA Court Opinion, 2/1/16, at
unnumbered 5.
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[c]ourt finds this claim is without arguable merit and counsel
was not ineffective with regard to this issue. See
[Commonwealth v.] Milligan, [693 A.2d 1313, 1319 (Pa. Super
1997)].
* * *
[Trial counsel] testified that she discussed consecutive and
concurrent sentence[s] with [Appellant]. [Trial counsel] also
testified that [Appellant] fully understood the plea and the
potential sentence he was facing. The [c]ourt finds that
testimony to be credible and [Appellant’s] testimony to the
contrary to not be credible. [Appellant]’s Guilty Plea Statement
indicated at question number 19 that the maximum sentence
was 10 years, $25,000 fine. As indicated by the record, the
[c]ourt further advised [Appellant] of the maximum possible
sentence and [Appellant] indicated he did not have any
questions about the same at his April 3, 2013 plea hearing.
[Appellant’s] Plea Agreement, which he signed, indicates that
District Attorney Watson made no recommendations as to
sentencing. [Appellant] indicated at his plea hearing that he had
not been promised anything in exchange for his plea. As
[Appellant] was informed of the maximum possible sentence and
knew he had not been promised a certain sentence in exchange
for his plea, it is clear that he understood the concept of an open
plea and had agreed to enter an open plea. Even if [Appellant]
did not understand the difference between consecutive and
concurrent sentences; it is irrelevant since this was an open plea
and no agreement as to whether the sentences would run
together or consecutively. Accordingly, the [c]ourt finds this
claim is without arguable merit and counsel was not ineffective
with regard to this issue. See Milligan, Supra.
PCRA Court Opinion, 2/1/16, at unnumbered 6, 7.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2016
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