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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID S. IRVIN :
:
Appellant : No. 618 MDA 2019
Appeal from the PCRA Order Entered March 21, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001146-2016
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 23, 2020
Appellant, David S. Irvin, appeals from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546. After careful review, we affirm.
This Court set forth the following factual history on direct appeal:
At trial, Detective Nicholas Licata testified to the
circumstances and events of September 15, 2015[,]
and September 17, 2015[,] that lead to [Appellant’s]
arrest for delivery of a controlled substance. The
Detective testified that while using a confidential
informant (“CI”) two separate drug buys were made
from [Appellant]. The CI was a trusted informant that
had worked with the Detective on previous cases.
On September 15, 2015, the CI set up a drug
buy with a person the CI identified as [Appellant]. In
order to contact [Appellant], the CI called the phone
number (717) 329-3241. The CI was searched by the
Detective to ensure the CI did not have drugs or
money on his or her person and the Detective then
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gave the CI $70 to make the drug buy. The CI walked
to meet [Appellant] and did not have contact with
anyone else before entering a white Hyundai sedan
with a Pennsylvania license plate, JPF-4162. The
Commonwealth entered into evidence as exhibit one,
a video of the CI entering a white car. The CI rode in
the car until he or she was dropped off. The Detective
picked up the CI and upon searching the CI, found a
bundle of heroin and no money. The bundle of heroin
and a lab report determining the substance contained
in the bundle was heroin were entered into evidence
by the Commonwealth as exhibits two and three,
respectively.
[O]n September 17, 2015, the CI set up another
controlled buy after contacting a person the CI again
identified as [Appellant]. The CI called the same
phone number as was called on September 15, 2015.
Following the same process as the first buy, the CI
was searched and then given money before walking
to meet [Appellant]. The CI again entered a white
Hyundai bearing the same license plate as the first
drug sale. After the CI was dropped off, he or she was
picked up by the Detective and searched.
The CI again had a bundle of heroin and no
money. The CI informed the detective that it was
[Appellant] who sold the drugs to him or her. The
Commonwealth had the second bundle of heroin and
a lab report identifying the substance as heroin
entered into evidence as exhibits four and five,
respectively.
[Appellant] was arrested on September 18,
2015. [Appellant] was searched and the search found
a cell phone and car keys. The Detective called the
number the CI had called and the phone found in
[Appellant’s] possession rang and displayed the
Detective’s phone number as the incoming call. The
car keys found in [Appellant’s] possession unlocked
the car that had picked up the CI on the two separate
occasions. A search warrant was obtained for the car,
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which turned up wax bags commonly used to package
heroin and a rental agreement showing that the car
was rented to a person other than [Appellant].
Another Harrisburg Police Department Officer
was called to testify for the Commonwealth. The
officer’s duty during the investigation was to conduct
surveillance. The Commonwealth entered into
evidence, as exhibits eight through eleven, various
videos and photographs showing [Appellant] entering
and operating the vehicle. [Appellant] did not testify
at the trial and did not put on evidence or call any
witnesses. [Appellant] attacked the use of a CI, the
lack of eyewitness evidence of the actual drug
exchange, and the lack of physical proof such as DNA
and fingerprints.
Commonwealth v. Irwin, 181 A.3d 1235, 432 MDA 2017 (Pa. Super. filed
December 14, 2017) (unpublished memorandum) (quoting Trial Court
Opinion, 3/3/17, at 2-4 (record citations and footnotes omitted)).
The PCRA court set forth the following relevant additional history:
On December 6, 2016, following a jury trial, [Appellant] was
found guilty of two counts of delivery of a controlled substance.
On February 21, 2017, [Appellant] was sentenced to serve two
consecutive terms of 27 to 60 months. On December 14, 2017,
the Pennsylvania Superior Court affirmed the judgment of
sentence but remanded for [Appellant’s] RRRI eligibility. On
September 12, 2018, [Appellant] filed a pro se PCRA Petition and
Michael Palermo was appointed as PCRA Counsel. PCRA counsel
filed an Amended PCRA Petition and the Commonwealth filed a
response. A PCRA hearing was held on March 11, 2019.
In his pro se PCRA Petition, [Appellant] alleges he is eligible
for relief due to a constitutional violation and ineffective assistance
of counsel. Additionally, in his pro se PCRA Petition and attached
“Motion,” [Appellant] alleges he is eligible for relief because trial
counsel “advised [Appellant] to reject the plea offer based upon
the fact that said attorney would win a not guilty verdict.” Also
[Appellant] raised the issue of his consecutive sentence and “that
it is so manifestly excessive as to constitute being too severe.”
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PCRA Counsel filed an Amended PCRA Petition on February 1,
2019, and succinctly stated the issues as 1) misinformed of plea
consequences and 2) excessive sentence.
PCRA Court Memorandum Order, 3/20/19, at 1–2 (footnote omitted).
Following a hearing, the PCRA court dismissed Appellant’s timely PCRA
petition.1 Order, 3/20/19.
On appeal, Appellant avers that “[t]he PCRA Court erred by denying
[Appellant’s] claims that his counsel was ineffective,
(i). by erroneously advising [Appellant] to reject a plea offer for a
18 month to 3 year sentence, based upon counsel’s assurance
that he only faced a 27 months to five year sentence and that
said attorney would win a not-guilty verdict, when in fact,
[Appellant] was actually facing a sentence of five to ten years;
(ii). by failing to raise on Post-Sentence Motion and preserve for
appellate review the issue that the consecutive nature of the
sentences was unreasonable because the Detective did not
arrest [Appellant] on the first controlled buy.
Appellant’s Brief at 6 (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). We
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1 Pursuant to 42 Pa.C.S. § 9545(b)(1), a first PCRA petition must be filed
within one year from the date judgment becomes final. “[A] judgment
becomes final at the conclusion of direct review . . ..” 42 Pa.C.S. § 9545(b)(3).
This Court filed its opinion on direct appeal on December 14, 2017. Appellant
filed a petition for allowance of appeal, which the Supreme Court denied on
May 10, 2018. Appellant filed his pro se PCRA petition on September 12,
2018, within the one-year prescribed time period.
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will review PCRA appeals “in the light most favorable to the prevailing party
at the PCRA level.” Commonwealth v. Steckley, 128 A.3d 826, 831 (Pa.
Super. 2015). 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). Finally, we note that the “PCRA court’s
credibility determinations, when supported by the record, are binding on this
Court.” Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014).
Both of Appellant’s issues relate to alleged ineffectiveness of counsel. It
is well settled that:
[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. In
Pennsylvania, we have refined the Strickland [v. Washington,
466 U.S. 668 (1984)] performance and prejudice test into a three-
part inquiry. Thus, to prove counsel ineffective, the petitioner
must show that: (1) his underlying claim is of arguable merit; (2)
counsel had no reasonable basis for his action or inaction; and (3)
the petitioner suffered actual prejudice as a result. See
[Commonwealth v.] Pierce[, 527 A.2d 973 (Pa. 1987) ]. If a
petitioner fails to prove any of these prongs, his claim fails.
Generally, counsel’s assistance is deemed constitutionally
effective if he chose a particular course of conduct that had some
reasonable basis designed to effectuate his client’s interests.
Where matters of strategy and tactics are concerned, a finding
that a chosen strategy lacked a reasonable basis is not warranted
unless it can be concluded that an alternative not chosen offered
a potential for success substantially greater than the course
actually pursued. To demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have
been different. A reasonable probability is a probability that is
sufficient to undermine confidence in the outcome of the
proceeding.
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Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super.
2016) (some internal citations omitted). Moreover, “[a] court is not required
to analyze the elements of an ineffectiveness claim in any particular order of
priority; instead, if a claim fails under any necessary element of the
ineffectiveness test, the court may proceed to that element first.”
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014).
In support of his first allegation of error, Appellant avers that his trial
counsel was ineffective for failing to provide adequate advice to allow
Appellant to make an intelligent decision regarding the Commonwealth’s plea
offer of an eighteen-month to three-year sentence.2 Appellant’s Brief at 12.
Specifically, Appellant argues that his trial counsel informed Appellant of the
offer, but claims that his counsel told him to reject the plea because he was
only facing a twenty-seven-month-to-five-year sentence if convicted, when in
reality, Appellant was facing a maximum sentence of five to ten years of
incarceration. Id. at 12, 15. Further, Appellant states that his trial counsel
informed him that he would win a not-guilty verdict for Appellant. Id. at 12.
Appellant argues that without this information, there is a reasonable
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2 Although the trial court references the plea offer and rejection that were
made in open court, this Court was unable to locate a copy or transcript of
either because the guilty-plea hearing was not transcribed. However, we note
that during the PCRA hearing, both Appellant and his trial counsel testified
that the plea offer was rejected in open court. N.T. (PCRA), 3/11/19, at 6–7,
22. Moreover, there does not appear to be any dispute to the terms of the
plea offered, one and one-half to three years of incarceration, which Appellant
rejected. Id. at 6, 7, 20.
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probability “he would have accepted the plea offer[,] and the outcome would
have been different…” Id. at 15.
In order to prove that counsel was ineffective:
a post-conviction petitioner seeking relief on the basis that
ineffective assistance of counsel caused him or her to reject a
guilty plea must demonstrate the following circumstance:
[B]ut for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have
been presented to the court (i.e., that the defendant
would have accepted the plea and the prosecution
would not have withdrawn it in light of intervening
circumstances), that the court would have accepted
its terms, and that the conviction or sentence, or both,
under the offer’s terms would have been less severe
than under the judgment and sentence that in fact
were imposed.
Commonwealth v. Steckley, 128 A.3d at 832 (quoting Lafler v. Cooper,
132 S.Ct. 1376, 1385 (2012)).
Although Appellant avers that his trial counsel was ineffective as it
relates to the plea offer, the PCRA court found:
At the evidentiary hearing held, trial counsel testified that he
made no guarantees to win the case (and does not do so with any
of his clients). Trial counsel did, however, discuss the strengths
and weaknesses of the case and presented the plea offer made by
the Commonwealth to [Appellant]. [Appellant] rejected the deal
in front of the court in an open hearing. Trial counsel also
discussed what would happen if the case proceeded to trial, the
two different charges [Appellant] was facing, the possibility of a
consecutive sentence, the sentencing guidelines if he were to be
found guilty, and the statutory maximum that [Appellant] was
facing if he were to be found guilty. It was [Appellant’s] choice to
proceed to trial. We cannot find that trial counsel did anything
wrong. Accordingly, the underlying legal claim lacks arguable
merit and [Appellant’s] first claim must fail.
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PCRA Court Opinion, 3/20/19, at 2.
After a review of the record and the testimony given at the PCRA
hearing, we find no error on the part of the PCRA court. Indeed, during the
PCRA hearing, Appellant’s trial counsel testified as follows:
Throughout the representation from the very beginning all the
way through either a plea or trial, it would be discussing what
different options he has, such as suppression issues, any type of
issues for trial, what type of plea offer he is looking for, what do
we think we could possibly get, waiting to get the discovery,
basically, the good, bad and the ugly of what the discovery shows.
N.T. (PCRA), 3/11/19, at 19. Further, trial counsel testified that he did not
make any guarantees to Appellant, although he did discuss the weaknesses in
the Commonwealth’s case. Id. at 20. He stated that reviewed the length of
the possible sentences and that the sentences could run either consecutively
or concurrently. Id. at 21. Finally, trial counsel said that after Appellant
turned down the offer, he did not attempt to “get the offer back” as Appellant’s
“mind was pretty made up as to trial even I think before the offer.” Id. at 22.
Appellant has failed to establish that his counsel was ineffective. During
the PCRA hearing, Appellant claimed that “[trial counsel] said he didn’t know
if [the plea deal] was a good deal or not.” N.T. (PCRA), 3/11/19, at 6. He
further testified that trial counsel did not promise him that he would win, but
that counsel informed Appellant that could win. Id. at 14. Further, unlike the
facts present in Steckley, 128 A.3d at 830, where the attorney for the
appellant admitted she was unaware of the mandatory-minimum sentence the
appellant was facing, trial counsel in the instant case made no such admission.
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Finally, we note that it appears the PCRA court found trial counsel’s testimony
on the matter to be credible, as it accepted that testimony at the evidentiary
hearing. PCRA Court Opinion, 3/20/19, at 1. Appellant has failed to show
error on the part of the trial court as it relates to his first issue.
In support of his second issue, Appellant avers that his trial counsel was
ineffective for failing to raise the excessiveness of his sentence in a post-trial
motion, therefore waiving it for purposes of direct appeal. Appellant’s Brief at
15. Specifically, Appellant claims that the two consecutive sentences imposed
for the two controlled drug buys, “creates a punishment that is so manifestly
excessive as to constitute being too severe.” Id. at 16. Although Appellant
argues that the PCRA court erred in dismissing his petition, Appellant fails to
cite any case law discussing the issue and makes only blanket statements that
Appellant was prejudiced by counsel’s failure to raise the issue. Id. at 18-19.
Appellant also fails to provide any discussion of how that alleged failure
prejudiced him. Thus, we find the issue waived. Commonwealth v. Walter,
966 A.2d 560, 566-567 (Pa. 2009) (finding that failure to provide adequate
discussion and citation to supporting authority will result in waiver of issue).
Even if Appellant had not waived the issue, he would be due no relief. As
the PCRA court stated in its opinion:
[T]his [c]ourt was the sentencing judge and reviewed the
sentencing memorandum submitted by counsel, noted that
[Appellant] was recently released from state prison, and indicated
that this was two separate events. As such, we imposed a
consecutive sentence. Thus, any challenge to the consecutive
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nature of [Appellant’s] sentence would have been rejected and
therefore, [Appellant] cannot establish prejudice.
PCRA Court Opinion, 3/20/19, at 3.
Indeed, as this Court has held, a defendant is not entitled to a “volume
discount” for his crimes. Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.
Super. 1995). Moreover, this Court has found that a trial court has discretion
to impose either a consecutive or concurrent sentence. Commonwealth v.
Radecki, 180 A.3d 441, 470 (Pa. Super. 2013). “The imposition of
consecutive as opposed to concurrent sentences is solely within the discretion
of the trial court, and does not in and of itself even rise to the level of a
substantial question.” Commonwealth v. Johnson, 873 A.2d 714, n. 2 (Pa.
Super. 2005) (citing Hoag, 873 A.2d at 1214). In the instant case, Appellant
has failed to establish his underlying claim is of any merit. Further, he does
no more than make blanket statements that the second and third prongs of
the test for ineffectiveness of counsel, discussed infra, were satisfied.
Appellant is due no relief on his second issue.
For all the foregoing reasons, the order denying PCRA relief is affirmed.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/23/2020
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Com. v. Irvin, D.
Combined Opinion