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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WALTER POTOK :
:
Appellant : No. 2186 EDA 2017
Appeal from the PCRA Order June 23, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0003017-2007
BEFORE: SHOGAN, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED JUNE 05, 2018
Appellant, Walter Potok, appeals from the order denying his first petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
We take the following facts and procedural background from the PCRA
court’s August 18, 2017 opinion and our independent review of the record.
On October 1, 2007, Appellant pleaded guilty pursuant to a negotiated plea to
one count of receiving stolen property, a third degree felony.1 The charge
related to Appellant’s unauthorized entry into a neighbor’s home and his theft
of her computer and jewelry. Pursuant to the plea, the trial court sentenced
him to a term of not less than eleven and one-half nor more than twenty-
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1 18 Pa.C.S.A. § 3925(a).
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* Retired Senior Judge assigned to the Superior Court.
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three months’ imprisonment, followed by three years of probation. The court
further ordered Appellant to participate in drug and alcohol counseling and to
seek employment. Appellant was immediately paroled to work release.
On May 30, 2008, at Appellant’s request, the court amended his
sentence, and placed him on house arrest. On September 3, 2008, the court
issued a bench warrant for Appellant’s failure to appear. On November 24,
2009, after another violation, the court terminated parole, revoked probation,
and imposed a sentence of not less than eleven and one-half nor more than
twenty-three months’ incarceration, plus five years of probation. On May 26,
2010, the court paroled Appellant to an inpatient drug facility. Appellant again
violated the conditions of his probation, and, on November 30, 2010, after
hearing argument from counsel and giving Appellant the opportunity for
allocution, the court terminated parole, revoked probation, and sentenced him
to a term of not less than two nor more than six years’ imprisonment, followed
by six years of probation. The trial court also deemed him RRRI eligible after
eighteen months. (See N.T. Hearing, 11/30/10, at 24).
On November 28, 2011, Appellant filed a timely pro se PCRA petition.
Appointed counsel filed an amended petition on July 21, 2016. The
Commonwealth filed a motion to dismiss the petition on January 26, 2017.
On March 7, 2017 and May 3, 2017, the court provided Appellant with notice
of its intent to dismiss the petition without a hearing. See Pa.R.Crim.P.
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907(1). On June 23, 2017, the PCRA court dismissed Appellant’s petition.
Appellant timely appealed.2
Appellant raises two issues for our review.
I. Whether the court erred in not granting relief on the PCRA
petition alleging [violation of probation (VOP)] counsel was
ineffective[?]
II. Whether the [c]ourt erred in denying the Appellant’s PCRA
petition without an evidentiary hearing[?]
(Appellant’s Brief, at 8) (issues renumbered for ease of disposition).
Our standard of review of an order denying a PCRA petition
is limited to an examination whether the PCRA court’s
determination is supported by the evidence of record and free of
legal error. We grant great deference to the PCRA court’s findings,
and we will not disturb those findings unless they are unsupported
by the certified record.
Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa. Super. 2018) (citation
omitted).
In his first issue, Appellant claims that VOP counsel was ineffective
because he failed to challenge his “unreasonable and excessive sentence” or
to object to the court’s decision not to request a presentence investigation
report (PSI). (Appellant’s Brief, at 17; see id. at 18). Appellant’s issue lacks
merit.
The law presumes counsel has rendered effective assistance, and
the burden of demonstrating ineffectiveness rests with an
appellant. To satisfy this burden, an appellant must plead and
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2On August 1, 2017, Appellant filed a timely court-ordered statement of errors
complained of on appeal. The court filed an opinion on August 18, 2017. See
Pa.R.A.P. 1925.
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prove by a preponderance of the evidence 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 proceeding would have been different. Failure
to satisfy any prong of the test will result in rejection of the
appellant’s ineffective assistance of counsel claim.
Holt, supra at 1018 (citations and quotation marks omitted). Importantly,
“[c]ounsel will not be deemed ineffective for failing to raise a meritless claim.”
Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (citation
omitted).
Here, Appellant argues first that counsel was ineffective for failing to
challenge his “unreasonable and excessive sentence[.]” (Appellant’s Brief, at
17). This argument does not merit relief.
“[S]entencing 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. Ferguson, 893 A.2d
735, 739 (Pa. Super. 2006), appeal denied, 906 A.2d 1196 (Pa. 2006)
(citation omitted).
Once probation has been revoked, a sentence of total confinement
may be imposed if any of the following conditions exist: (1) the
defendant has been convicted of another crime; or (2) the conduct
of the defendant indicates that it is likely that he will commit
another crime if he is not imprisoned; or, (3) such a sentence is
essential to vindicate the authority of court.
Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013) (citations
omitted); see also 42 Pa.C.S.A. § 9771(c).
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When imposing a sentence, the sentencing court must
consider the factors set out in 42 Pa.C.S.[A.] § 9721(b), that is,
the protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of defendant,
and it must impose an individualized sentence. The sentence
should be based on the minimum confinement consistent with the
gravity of the offense, the need for public protection, and the
defendant’s needs for rehabilitation.
Ferguson, supra at 739 (citation omitted). “Furthermore, pursuant to
Pa.R.Crim.P. 704, the trial court ‘shall state on the record the reasons for the
sentence imposed.’ Pa.R.Crim.P. 704(C)(2).” Id. at 740. “However,
Sentencing Guidelines do not apply to sentences imposed following a
revocation of probation.” Id. at 739 (citation omitted).
Here, at sentencing, the trial court stated that it considered “the gravity
of [the] offense, the impact upon the community, [the] need to protect the
community, [and Appellant’s] rehabilitative needs.” (N.T. Hearing, at 21). It
noted that this was Appellant’s fourth probation revocation, that he has
“demons,” and that “more structure is needed.” (Id. at 22; see id. at 17,
21). Finally, the court recognized that “[it is] important that the state has
sufficient time to give [Appellant] the treatment that [he] need[s] to have.”
(Id. at 23).
Based on the foregoing, the trial court properly considered all sentencing
factors and stated its reasons for imposing Appellant’s sentence on the record
before imposing Appellant’s sentence of total confinement. See Edwards,
supra at 327; Ferguson, supra at 739-40. Hence, the PCRA court properly
found counsel was not ineffective for failing to raise a meritless challenge to
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Appellant’s sentence. See Spotz, supra at 1210; Holt, supra at 1017.
Appellant’s first argument alleging counsel’s ineffective representation lacks
merit.
Appellant next argues that counsel was ineffective for not objecting to
the absence of a PSI because this “tends to point to the conclusion that [the
court] did not sufficiently consider all factors relevant to the Appellant’s case
at sentencing.” (Appellant’s Brief, at 18). This argument does not merit relief.
“The Pennsylvania Rules of Criminal Procedure vest a sentencing judge
with the discretion to order a pre-sentence investigation (PSI) as an aid in
imposing an individualized sentence.” Commonwealth v. Carrillo-Diaz, 64
A.3d 722, 725 (Pa. Super. 2013); see also Pa.R.Crim.P. 702.
The first responsibility of the sentencing judge [is] to be
sure that he ha[s] before him sufficient information to enable him
to make a determination of the circumstances of the offense and
the character of the defendant. Thus, a sentencing judge must
either order a PSI report or conduct sufficient presentence inquiry
such that, at a minimum, the court is apprised of the particular
circumstances of the offense, not limited to those of record, as
well as the defendant’s personal history and background. . . .
Carrillo-Diaz, supra at 725-26 (citation omitted).
In this case, the trial court presided over Appellant’s guilty plea, initial
sentencing, and previous violation of probation hearings. It noted the
circumstances of his violations, heard argument from counsel, considered the
probation department’s recommendation and Appellant’s personal issues, and
gave him the opportunity for allocution. (See N.T. Hearing, at 20-24).
Therefore, the sentencing court had “sufficient information to enable [it] to
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make a determination of the circumstances of the offense and the character
of [Appellant].” Carrillo-Diaz, supra at 725 (citation omitted). Hence, the
PCRA court properly found that counsel was not ineffective for failing to
challenge the lack of a PSI. See Spotz, supra at 1210; Holt, supra at 1017.
Appellant’s first issue, alleging the ineffectiveness of VOP counsel, lacks merit.
In his second issue, Appellant argues that the PCRA court abused its
discretion in denying his petition without a hearing. (See Appellant’s Brief, at
15-16). This issue lacks merit.
A PCRA petitioner is not entitled to an evidentiary hearing
as a matter of right, but only where the petition presents genuine
issues of material fact. [See] Pa.R.Crim.P. 909(B)(2)[.] A PCRA
court’s decision denying a claim without a hearing may only be
reversed upon a finding of an abuse of discretion. . . .
Commonwealth v. Keaton, 45 A.3d 1050, 1094 (Pa. 2012) (case citation
omitted).
In this case, Appellant’s petition failed to raise any genuine issue of
material fact. See id. Therefore, the PCRA court did not abuse its discretion
in denying Appellant’s petition without a hearing, and his second issue lacks
merit. See id.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/18
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