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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
Appellee :
:
v. :
:
VICTOR ANTHONY MEDINA, SR., :
:
Appellant : No. 42 MDA 2018
Appeal from the PCRA Order December 22, 2017
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001162-2016
CP-22-CR-0001308-2016
CP-22-CR-0007009-2015
BEFORE: BOWES, MCLAUGHLIN, and STRASSBURGER*, JJ
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 31, 2018
Victor Anthony Medina, Sr., (Appellant) pro se appeals from the order
entered December 22, 2017, which denied his petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
We provide the following background. On September 8, 2016, Appellant
entered into a negotiated guilty plea at three separate docket numbers to one
count each of person not to possess a firearm, theft by unlawful taking,
possession of marijuana, possession of a small amount of marijuana, and
possession of drug paraphernalia. The agreed-upon sentence was an
aggregate term of incarceration of three-and-a-half to seven years, which was
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* Retired Senior Judge assigned to the Superior Court.
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imposed by the trial court. See N.T., 9/8/2016, at 2-9. Appellant did not file
a post-sentence motion or direct appeal.
On May 31, 2017, Appellant pro se timely filed a PCRA petition. In that
petition, Appellant set forth numerous allegations of ineffective assistance of
counsel. Specifically, Appellant claimed that trial counsel was ineffective for
failing to file a motion to suppress evidence and properly investigate the case.
Appellant also claimed that trial counsel either misadvised or failed to advise
Appellant regarding his guilty plea and sentence. Additionally, according to
Appellant, trial counsel failed to investigate Appellant’s prior record score
(PRS), which purportedly led him to agree to plead guilty to an excessive
sentence. See PCRA Petition, 5/31/2017, at 7.
The PCRA court appointed Attorney Jennifer E. Tobias to represent
Appellant. On June 29, 2017, she filed a petition to withdraw as counsel, after
concluding that the allegations of ineffective assistance of counsel set forth by
Appellant in his petition lacked merit.1 On August 29, 2017, Appellant pro se
filed objections to Attorney Tobias’s petition to withdraw. On November 21,
2017, the PCRA court entered an order granting counsel’s petition to withdraw
after agreeing with counsel that Appellant’s issues lacked merit. The PCRA
court provided notice pursuant to Pa.R.Crim.P. 907 of its intention to dismiss
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(setting forth the procedures and requirements for withdrawing as counsel at
the post-conviction stage).
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Appellant’s petition within 20 days. Appellant pro se filed a response. On
December 22, 2017, the PCRA court entered an order dismissing Appellant’s
petition. Appellant timely filed a notice of appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925.
On appeal, Appellant sets forth a number of issues for review.2 See
Appellant’s Brief at 4-5. In considering these issues, we bear in mind the
following. In reviewing an appeal from the denial of PCRA relief, “[w]e must
examine whether the record supports the PCRA court’s determination, and
whether the PCRA court’s determination is free of legal error. The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Mikell, 968 A.2d 779, 780 (Pa. Super.
2009) (quoting Commonwealth v. Lawrence, 960 A.2d 473, 476 (Pa.
Super. 2008) (citations omitted)).
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2 Appellant’s statement of questions involved, see Appellant’s Brief at 4-5,
does not correspond with the issues set forth in his argument, see id. at 14-
26. “The statement of the questions involved must state concisely the issues
to be resolved, expressed in the terms and circumstances of the case but
without unnecessary detail.” Pa.R.A.P. 2116(a). Further, “[t]he 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 particular point treated therein, followed by such discussion
and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). Our
review of Appellant’s brief reveals substantial noncompliance with the
aforementioned rules. “Nonetheless, in the interest of justice we address the
arguments that can reasonably be discerned from this defective brief.”
Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003).
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To the extent Appellant is claiming trial counsel was ineffective, we
observe that
[i]t is well-established that counsel is presumed to have
provided effective representation unless the PCRA petitioner
pleads and proves all of the following: (1) the underlying
legal claim is of arguable merit; (2) counsel’s action or
inaction lacked any objectively reasonable basis designed to
effectuate his client’s interest; and (3) prejudice, to the
effect that there was a reasonable probability of a different
outcome if not for counsel’s error.
The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (internal
citations omitted). Because Appellant entered into a negotiated guilty plea,
we keep in mind the following.
The right to the constitutionally effective assistance of counsel
extends to counsel’s role in guiding his client with regard to the
consequences of entering into a guilty plea.
Allegations of ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the ineffectiveness
caused the defendant to enter an involuntary or unknowing plea.
Where the defendant enters his plea on the advice of counsel, the
voluntariness of the plea depends on whether counsel’s advice
was within the range of competence demanded of attorneys in
criminal cases.
Thus, to establish prejudice, the defendant must show that there
is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.
The reasonable probability test is not a stringent one; it merely
refers to a probability sufficient to undermine confidence in the
outcome.
Our Supreme Court also has held as follows:
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Central to the question of whether [a] defendant’s
plea was entered voluntarily and knowingly is the fact
that the defendant know and understand the nature
of the offenses charged in as plain a fashion as
possible…. [A] guilty plea is not a ceremony of
innocence, it is an occasion where one offers a
confession of guilt. Thus, … a trial judge [and, by
extension, plea counsel] is not required to go to
unnecessary lengths to discuss every nuance of the
law regarding a defendant’s waiver of his right to a
jury trial in order to render a guilty plea voluntary and
knowing.
Commonwealth v. Barndt, 74 A.3d 185, 192-93 (Pa. Super. 2013)
(citations and quotation marks omitted).
We start with Appellant’s arguments regarding the sentence imposed as
part of his negotiated guilty plea. See Appellant’s Brief at 14-19. Appellant
begins by arguing that the trial court calculated improperly his PRS. Id. at 15.
Appellant also claims that the Commonwealth charged him with the wrong
grading for the offense of person not to possess a firearm. Id. In addition,
Appellant suggests the trial court erred by not obtaining a pre-sentence
investigation (PSI) report.3 Id. at 16. According to Appellant, these errors
led him to be sentenced to a higher sentence than he should have been. Id.
at 19.
Appellant’s argument completely fails to take into account that he pled
guilty as part of a plea agreement that contained a negotiated sentence.
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3 At sentencing, Appellant agreed to waive his right to a PSI. See N.T.,
9/8/2016, at 8.
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Specifically, Appellant pled guilty to five separate charges in three cases,
where the most serious charge carried a maximum penalty of five to 10 years
of incarceration. See Guilty Plea Colloquy, 9/8/2016, at 1. The
Commonwealth offered Appellant an aggregate sentence of three-and-a-half
to seven years of incarceration on all five charges. Appellant accepted the
plea deal, and the trial court imposed the agreed-upon sentence. See N.T.,
9/8/2016, at 7-9.
With respect to Appellant’s specific arguments, to the extent he is
claiming the trial court erred, such issues should have been raised in a direct
appeal. See Commonwealth v. Spotz, 18 A.3d 244, 270 (Pa. 2011)
(pointing out that claims of trial court error are “both waived and not
cognizable under the PCRA because [they] could have been raised on direct
appeal”). Additionally, issues with a PRS or failing to obtain a PSI challenge
the discretionary aspects of a sentence. See Commonwealth v. Johnson,
179 A.3d 1153 (Pa. Super. 2018). Where “[t]he trial court imposed the
sentence Appellant negotiated with the Commonwealth[,] Appellant may not
… seek discretionary review of that negotiated sentence.” Commonwealth v.
Reid, 117 A.3d 777, 784 (Pa. Super. 2015). See also Commonwealth v.
O’Malley, 957 A.2d 1265, 1267 (Pa. Super. 2008) (“One who pleads guilty
and receives a negotiated sentence may not then seek discretionary review of
that sentence.”). Thus, trial counsel could not have been ineffective for failing
to assert these meritless challenges to Appellant’s sentence. See
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Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (stating
“[c]ounsel will not be deemed ineffective for failing to raise a meritless claim”).
Based on the foregoing, Appellant has not convinced this Court that he is
entitled to relief on these claims with regard to the sentence he received.
Appellant next contends that “his plea was not knowing and voluntary.”
Appellant’s Brief at 19. Appellant also argues that trial counsel was ineffective
for waiving Appellant’s right to a preliminary hearing, for failing request
discovery, for failing to file a motion to suppress, and for inducing him to plead
guilty “to a gun charge that includes the element of being a loaded firearm
when” the firearm was not loaded. Id. at 20-23. Finally, Appellant claims
that Attorney Tobias was ineffective in her representation of him in the PCRA
court. Id. at 24-26. Our review of the record reveals that Appellant did not
raise these issues in his Pa.R.A.P. 1925(b) statement. See Concise Statement,
1/23/2018, at 1-2. Issues not raised in a Pa.R.A.P. 1925(b) statement are
waived on appeal. Commonwealth v. Castillo, 888 A.2d 875 880 n.4 (Pa.
2009). Thus, we conclude these issues are waived.
Because Appellant has presented no issue on appeal which entitles him
to relief, we affirm the order of the PCRA court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/31/2018
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