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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SHANNON FRENCH, No. 580 EDA 2017
Appellant
Appeal from the PCRA Order, January 13, 2017,
inthe Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0014123-2011,
CP-51-CR-0805001-2005
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 07, 2019
Shannon French appeals from the January 13, 2017 order entered by
the Court of Common Pleas of Philadelphia County denying his petition filed
pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-
9546. After careful review, we affirm.
The PCRA court provided the following synopsis of the relevant
procedural history of this case:
On February 28, 2011, at CP-51-CR-0805001-2005,
[appellant] entered into a negotiated guilty plea on
the charges of [c]orruption of [m]inors and
[s]tatutory [s]exual [a]ssault[1] and was sentenced
in accordance with his plea agreement to a period of
confinement in a county correctional facility [of] 111/2
to 23 months followed by 10 years['] probation.
1 18 Pa.C.S.A. §§ 6301(a) and 3122.1(a), respectively.
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On March 29, 2011, at CP-51-CR-0014123-2011,
[appellant] entered into a negotiated guilty plea on
the charges of [c]onspriacy, [t]erroristic [t]hreats
and [s]talking.[Footnote 1][2] On June 13, 2012,
[appellant] was sentenced on each charge to
concurrent terms of probation of five years. On
June 13, 2012, the [c]ourt also found [appellant] in
violation of probation at CP-51-CR-0805001-2005
and imposed concurrent sentences on both counts of
111/2 to 23 months['] incarceration, followed by
8 years['] probation.
[Footnote 1] This conviction constituted
[appellant's] second[,] a violation of his
parole at CP-51-CR-08050001-2005[.
Appellant] was subsequently found to be
in violation and resentenced on June 13,
2012.
Subsequently, on April 8, 2015, the [PCRA court]
found [appellant] to be in violation of probation on
both bills of information and resentenced him to an
aggregate sentence of 2 to 5 years of confinement in
a state correctional facility followed by [5] years[']
probation. [Appellant] did not file a direct appeal.
On July 24, 2015, [appellant] filed the timely instant
counseled PCRA petition pursuant to 42 Pa.C.S.A.
§9541, et Seq. [sic] On November 16, 2016, [the
PCRA court] after a hearing and a careful review of
the record, issued its notice, pursuant to Rule 907 of
the Pennsylvania Rules of Criminal Procedure []
advising [c]ounsel and [appellant] that it intended to
dismiss [appellant's] petition within twenty days of
the date of its notice. On December 6, 2016,
[appellant] filed a response to the [PCRA court's]
notice pursuant to Rule 907. On January 13, 2017,
after a hearing and consideration of [appellant's]
response to its notice of intent to dismiss, the [PCRA
court] issued an [o]rder dismissing [appellant's]
PCRA [p]etition as being without merit.
2 18 Pa.C.S.A. §§ 903(a), 2706(a), and 2709.1(a), respectively.
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On February 1, 2017, [appellant] timely filed the
instant appeal to the Superior Court of Pennsylvania.
On February 6, 2017, [the PCRA court] filed and
served on [appellant] an [o]rder pursuant to
Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure, directing [appellant] to file and serve a
Statement of Errors Complained of on Appeal, within
twenty-one days of the [PCRA court's] [o]rder.
On February 27, 2017, [appellant] timely filed a
Statement of [Errors] Complained of on Appeal.
PCRA court opinion, 10/16/17 at 1-3. The PCRA court filed an opinion
pursuant to Pa.R.A.P. 1925(a) on October 16, 2017.
Appellant raises the following issue for our review:
Did the [PCRA] court err in finding [appellant] was
not prejudiced by his prior counsel's failure to
introduce evidence that his alleged violation of
probation was neither willful or intention [sic]?
Appellant's brief at 2.
PCRA petitions are subject to the following standard of review:
"[A]s ageneral proposition, we review a denial of
PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of
legal error." Commonwealth v. Dennis, [], 17
A.3d 297, 301 ([Pa. ]2011) (citation omitted). A
PCRA court's credibility findings are to be accorded
great deference, and where supported by the record,
such determinations are binding on a reviewing
court. Id. at 305 (citations omitted). To obtain
PCRA relief, appellant must plead and prove by a
preponderance of the evidence: (1) his conviction or
sentence resulted from one or more of the errors
enumerated in 42 Pa.C.S.[A.] § 9543(a)(2); (2) his
claims have not been previously litigated or waived,
id. § 9543(a)(3); and (3) "the failure to litigate the
issue prior to or during trial . or on direct appeal
. .
could not have been the result of any rational,
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strategic or tactical decision by counsel[,]" id.
§ 9543(a)(4). An issue is previously litigated if "the
highest appellate court in which [a]ppellant could
have had review as a matter of right has ruled on
the merits of the issue[.]" Id. § 9544(a)(2). "[A]n
issue is waived if [a]ppellant could have raised it but
failed to do so before trial, at trial,. on appeal or
. .
in a prior state postconviction proceeding." Id.
§ 9544(b).
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).
Under the PCRA, an individual is eligible for post -conviction relief if the
conviction was the result of "ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth -determining
process, that no reliable adjudication of guilt or innocence could have taken
place. 42 Pa.C.S.A. § 9543(a)(2)(ii). When considering whether counsel
was ineffective, we are governed by the following standard:
[C]ounsel 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.
Strickland v. Washington, 466 U.S.
668 [] (1984). This Court has described
the Strickland standard as tripartite by
dividing the performance element into
two distinct components.
Commonwealth v. Pierce, [] 527 A.2d
973, 975 ([Pa. ]1987). Accordingly, to
prove counsel ineffective, the petitioner
must demonstrate that (1) the
underlying legal issue has arguable
merit; (2) counsel's actions lacked an
objective reasonable basis; and (3) the
petitioner was prejudiced by counsel's
act or omission. Id. A claim of
ineffectiveness will be denied if the
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petitioner's evidence fails to satisfy any
one of these prongs.
Commonwealth v. Busanet, [] 54 A.3d 34, 45
([Pa. ]2012) (citations formatted). Furthermore,
"[i]n accord with these well -established criteria for
review, [an appellant] must set forth and individually
discuss substantively each prong of the Pierce test."
Commonwealth v. Fitzgerald, 979 A.2d 908, 910
(Pa.Super. 2009).
Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015),
order vacated on other grounds, 166 A.3d 1213 (Pa. 2017).
Here, the record reflects that appellant was discharged from a
mandatory sexual offender rehabilitation program for sleeping during group
therapy. (Notes of testimony, 4/8/15 at 6-8.) The trial court found
appellant to be in violation of his probation and sentenced him to 2-5 years'
incarceration followed by five years' probation. (Id. at 12, 22.)
Appellant contends that his violation of probation counsel,
Tangie Marie Boston, Esq., provided ineffective assistance because she failed
to introduce evidence pertaining to the side effects of the medications
appellant was required to take, which included excessive drowsiness.
(Appellant's brief at 6.) Specifically, appellant argues that he was prejudiced
by Attorney Boston's failure to introduce such evidence. (Id. at 8.)
Based on our review of the record, we find that there is support for the
PCRA court's conclusion that the record belies appellant's contentions. (See
PCRA court opinion, 10/16/17 at 8.) Relying on appellant's discharge report,
the PCRA court noted that appellant was discharged,
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not just for his inability to stay awake but, instead
for his total lack of cooperation and defiance of the
program. In viewing the totality of his actions,
sleeping during sessions, his sexualizing a staff
member,[3] seeking inappropriate drugs and
numerous behavioral violations, [appellant]
evidenced a deliberate pattern of non-compliance.
Prior to dismissing [appellant's] PCRA petition, the
[PCRA court] noted; "It's one thing to fall asleep, it's
another thing to put your jacket over your head so
you can sleep more peacefully. If that's just part of
an overall pattern of not going along with the
program, I don't know what good it would do you to
bring in evidence that these are medications that
make it easier to sleep."
PCRA court opinion, 10/16/17 at 8, quoting notes of testimony, 11/16/16
at 14. Moreover, a review of the violation of probation hearing transcript
reveals that Attorney Boston argued that appellant's falling asleep was
attributed to the medication he was taking. (Notes of testimony, 4/8/15
at 17.)
Therefore, we find that appellant has failed to establish that he was
prejudiced by Attorney Boston's not introducing evidence that the side
effects of the medication appellant was required to take caused him to
become drowsy. Accordingly, the PCRA court did not abuse its discretion
when it dismissed appellant's PCRA petition.
Order affirmed.
3 Probation Officer Yvette Morales described appellant's behavior as follows:
"[A] female therapist walked by and [appellant] found her attractive, and he
stated that he wanted more information on her. And they redirected him
several times, but he kept asking [for] information about the therapist."
(Notes of testimony, 4/8/15 at 7.)
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Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 1/7/19
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