Com. v. Blackstone, S.

J-S58042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

STEPHEN BERNARD BLACKSTONE

Appellant No. 1327 MDA 2015

Appeal from the PCRA Order July 2, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003472-2001

BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 22, 2016

Appellant, Stephen Bernard Blackstone, appeals pro se from the order

entered in the Dauphin County Court of Common Pleas, which denied his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We

affirm.

The relevant facts and procedural history of this case are as follows.

On May 24, 2001, Appellant entered a home and robbed and terrorized

multiple victims at gunpoint. A jury convicted Appellant of three counts of

robbery and one count each of burglary and persons not to possess firearms.

The trial court sentenced Appellant on July 24, 2002, to an aggregate term

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1
42 Pa.C.S.A. §§ 9541-9546.

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*Retired Senior Judge assigned to the Superior Court.
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of fifty (50) to one hundred (100) years’ incarceration. This Court affirmed

the judgment of sentence on November 17, 2003, and our Supreme Court

denied allowance of appeal on August 12, 2004. See Commonwealth v.

Blackstone, 841 A.2d 570 (Pa.Super. 2003) (unpublished memorandum),

appeal denied, 579 Pa. 687, 856 A.2d 831 (2004). Appellant timely filed a

pro se PCRA petition on June 16, 2005. The PCRA court appointed Attorney

Engle to represent Appellant. Attorney Engle filed a Turner/Finley2 no-

merit letter and petition to withdraw on October 21, 2005. Appellant filed a

pro se response, arguing Attorney Engle failed to address several

meritorious issues Appellant had raised in his pro se PCRA petition. On June

29, 2006, the PCRA court granted Attorney Engle’s petition to withdraw and

issued notice of its intent to dismiss Appellant’s PCRA petition, pursuant to

Pa.R.Crim.P. 907. Appellant filed a pro se response to the court’s Rule 907

notice. The court dismissed the PCRA petition on December 20, 2006.

Appellant appealed and challenged the adequacy of Attorney Engle’s

no-merit letter. On March 17, 2008, this Court decided Attorney Engle had

been improperly permitted to withdraw, vacated the PCRA court’s order, and

remanded for Attorney Engle or new counsel to file an amended PCRA

petition or supplemental no-merit letter addressing Appellant’s five

remaining issues. See Commonwealth v. Blackstone, 953 A.2d 594
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2
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).

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(Pa.Super. 2008) (unpublished memorandum).

On remand, the PCRA court appointed Attorney Shreve to represent

Appellant. On June 12, 2008, Appellant filed a pro se “motion to correct an

illegal sentence,” in which he argued the trial court had illegally sentenced

him as a “third strike” offender under 42 Pa.C.S.A. § 9714. Attorney Shreve

filed a petition to withdraw and no-merit letter on September 8, 2008.

Appellant filed a pro se response on September 25, 2008, arguing only that

his sentencing issue had merit. The court did not allow Attorney Shreve to

withdraw. On March 2, 2009, the court granted PCRA relief with respect to

Appellant’s sentencing issue only. The court resentenced Appellant on April

8, 2009, to an aggregate term of forty (40) to eighty (80) years’

incarceration, which included a “second strike” mandatory minimum term of

ten (10) to twenty (20) years’ incarceration for one robbery count, pursuant

to Section 9714. While still represented by Attorney Shreve, Appellant filed

a direct appeal challenging his new sentence as excessive. This Court

affirmed the new judgment of sentence on June 11, 2010, and our Supreme

Court denied allowance of appeal on December 7, 2010. See

Commonwealth v. Blackstone, 4 A.3d 683 (Pa.Super. 2010) (unpublished

memorandum), appeal denied, 608 Pa. 659, 13 A.3d 473 (2010).

Appellant filed the current pro se PCRA petition on March 28, 2011.

The PCRA court issued Rule 907 notice on July 20, 2011. On August 4,

2011, the court dismissed the petition. On appeal, this Court vacated the

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PCRA court’s order for failure to treat the PCRA petition as a “first” petition

from Appellant’s new judgment of sentence (although historically it was

Appellant’s second petition) and remanded for appointment of counsel. See

Commonwealth v. Blackstone, 60 A.3d 560 (Pa.Super. 2012)

(unpublished memorandum). On remand, the PCRA court appointed

Attorney Tobias, who filed an amended PCRA petition on January 14, 2013.

On April 11, 2013, Appellant filed a pro se motion for waiver of counsel.

Following a Grazier3 hearing, the court granted Appellant’s request to

proceed pro se. Appellant pro se filed a motion to submit an amended PCRA

petition and a motion to obtain his pre-sentence investigation (“PSI”) report

and juvenile record. The court granted both motions. Appellant filed a pro

se amended PCRA petition on July 8, 2013. On July 23, 2014, Appellant filed

a “motion to file an amended PCRA petition and/or for the court to take

judicial notice of typo.” The court denied the motion and issued Rule 907

notice on June 8, 2015. Appellant filed a response to the Rule 907 notice on

June 24, 2015. On July 2, 2015, the court denied PCRA relief. Appellant

timely filed a pro se notice of appeal on Monday, August 3, 2015. The court

ordered Appellant to file a concise statement of errors complained of on

appeal per Pa.R.A.P. 1925(b), and Appellant timely complied.

Appellant raises the following issues on appeal, which we have

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3
Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).

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reordered for ease of disposition:

(1) WHETHER THE HONORABLE COURT ERRED IN
TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE
BEING INEFFECTIVE FOR FAILING TO
AMEND/SUPPLEMENT APPELLANT’S INITIAL PCRA AND
CHALLENGE TRIAL COUNSEL’S INEFFECTIVENESS FOR
FAILING TO ASSURE APPELLANT’S CONSTITUTIONAL
RIGHT TO A FAIR TRIAL BY REQUESTING FOR APPELLANT
TO HAVE A “SEVERANCE” ON THE FORMER CONVICT NOT
TO OWN A FIREARM CHARGE. WHICH AXIOMATIC
REQUIRES EVIDENCE THAT APPELLANT WAS PREVIOUSLY
CONVICTED OF A CRIME AND INSTEAD WRONGLY
ADVISED APPELLANT NOT TO SEVER THE CHARGE, AS
BEING MERITLESS, WITHOUT CONDUCTING AN
EVIDENTIARY HEARING TO DETERMINE IF TRIAL COUNSEL
AND THE TRIAL COURT’S WRONG[] ADVICE UNDERMINED
APPELLANT’S ABILITY TO MAKE A KNOWING AND
INTELLIGENT DECISION NOT TO PROCEED WITH A
“SEVERANCE.”

(2) WHETHER THE HONORABLE COURT ERRED IN
FAILING TO ADDRESS APPELLANT’S CLAIM OF ATTORNEY
SHREVE BEING INEFFECTIVE FOR FAILING TO
AMEND/SUPPLEMENT APPELLANT’S INITIAL PCRA AND
CHALLENGE THE TRIAL COURT ERRING AND ABUSING ITS
DISCRETION BY PROCEEDING IN A TRIBUNAL WITHOUT
JURISDICTION ON THE 3RD COUNT OF ROBBERY.

(3) WHETHER THE HONORABLE COURT ERRED IN
TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE
BEING INEFFECTIVE FOR FAILING TO
AMEND/SUPPLEMENT APPELLANT’S INITIAL PCRA
CHALLENGING TRIAL COUNSEL’S INEFFECTIVENESS FOR
FAILING TO FILE A MOTION TO HAVE THE TRIAL COURT
REFLECT ON WHICH CHARGES WERE BOUND OVER FOR
COURT. BECAUSE THE 3RD COUNT OF ROBBERY WAS
DISMISSED AT A PRELIMINARY HEARING AND WAS NEVER
REFILED AND THE TRIAL COURT HAD APPELLANT STAND
TRIAL ON THE 3RD COUNT OF ROBBERY, AS BEING
MERITLESS. WHEN SUCH ERROR IN LAW VIOLATED
APPELLANT’S STATE AND FEDERAL 6[TH] AND 14TH
AMENDMENT CONSTITUTIONAL RIGHTS TO EFFECTIVE
ASSISTANCE OF COUNSEL AND DUE PROCESS.

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(4) WHETHER THE HONORABLE COURT ERRED IN
TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE
BEING INEFFECTIVE FOR FAILING TO OBJECT TO THE
TRIAL COURT ERRING IN “MISCALCULATING HIS PRIOR
RECORD SCORE” ON THE SECOND AND THIRD COUNT OF
ROBBERY, BURGLARY AND FORMER CONVICT NOT TO
OWN A FIREARM CHARGE, AS BEING PREVIOUSLY
LITIGATED. WHEN INEFFECTIVENESS CLAIMS ARE
DISTINCT FROM NON-INEFFECTIVENESS CLAIMS OF
ERROR RAISED ON DIRECT APPEAL AND
PCRA/RESENTENCING COUNSEL SHREVE NEVER RAISED
OR CHALLENGED THIS DISCRETIONARY ASPECT OF
APPELLANT’S SENTENCE ON DIRECT APPEAL. AND
PURSUANT TO THE PA. SENTENCING CODE § 303.7(A),
WHICH USED TO BE § 303.6(A), AFTER THE TRIAL COURT
SENTENCED APPELLANT ON THE OFFENSE WITH THE
HIGHEST GRAVITY SCORE IN SUCH TRANSACTION
APPELLANT’S PRIOR RECORD SCORE SHOULD [HAVE]
WENT BACK TO “ZERO FOR THE REMAINING OFFENSES.”

(5) WHETHER THE HONORABLE COURT ERRED IN
DENYING APPELLANT’S MOTION TO FILE AN AMENDED
PCRA-PETITION AND/OR FOR THE COURT TO TAKE
JUDICIAL NOTICE OF TYPO-SENTENCING CODE ERROR.

(6) WHETHER THE HONORABLE COURT ERRED IN
TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE
BEING INEFFECTIVE FOR FAILING TO OBJECT AND
PRESERVE THE CLAIM THAT THE TRIAL COURT ERRED IN
“DOUBLE COUNTING” APPELLANT’S (PRIOR RECORD/LACK
OF [AMENABILITY] TO REHABILITATION), WHICH WAS A
FACTOR ALREADY INCLUDED IN THE MANDATORY
MINIMUM SENTENCE UNDER 42 PA.C.S.A. § 9714 AND
THE SENTENCING GUIDELINES, AS BEING PREVIOUSLY
LITIGATED. WHEN INEFFECTIVENESS CLAIMS ARE
DISTINCT FROM NON-INEFFECTIVENESS CLAIMS OF
ERROR RAISED ON DIRECT APPEAL. AND
PCRA/RESENTENCING COUNSEL SHREVE NEVER RAISED
OR CHALLENGED THIS DISCRETIONARY ASPECT OF
APPELLANT’S SENTENCE ON DIRECT APPEAL.

(7) WHETHER THE HONORABLE COURT ERRED IN
TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE

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BEING INEFFECTIVE FOR FAILING TO OBJECT AND
PRESERVE THE CLAIM THAT APPELLANT RAISED BEFORE
THE TRIAL COURT CHALLENGING THE
CONSTITUTIONALITY AND LEGISLATIVE INTENT OF 42
PA.C.S.A. § 9714(A)(1) AND THAT IF THE COURT
IMPOSE[D] A SENTENCE WHICH WAS NOT INTENDED BY
THE LEGISLATORS THEN THE SENTENCE IMPOSED IS
ILLEGAL, AS BEING PREVIOUSLY LITIGATED. WHEN
INEFFECTIVENESS CLAIMS ARE DISTINCT FROM NON-
INEFFECTIVENESS CLAIMS OF ERROR RAISED ON DIRECT
APPEAL. AND PCRA/RESENTENCING COUNSEL SHREVE
NEVER RAISED OR CHALLENGED THE “LEGALITY OF
APPELLANT’S NEW SENTENCE ON DIRECT APPEAL.”

(8) WHETHER THE HONORABLE COURT ERRED IN
TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE
BEING INEFFECTIVE FOR FAILING TO OBJECT AND/OR
FILE A MOTION TO CORRECT AN ERRONEOUS (P.S.I.-
REPORT) AND ALSO PRECLUDE THE TRIAL COURT FROM
RELYING ON UNCONSTITUTIONAL PRIOR JUVENILE
OFFENSES AND/OR FILE A MOTION FOR THE TRIAL COURT
TO ORDER A (NEW P.S.I.-REPORT) PRIOR TO APPELLANT
BEING RESENTENCED, AS BEING WAIVED AND/OR
MERITLESS. WHEN THE EXHIBITS ATTACHED TO
APPELLANT’S PCRA-PETITION CLEARLY ESTABLISHED
FACTS IN DISPUTE THAT WARRANT AN EVIDENTIARY
HEARING. AND SUCH ERROR IN LAW IS A CONTINUATION
AND VIOLATION OF APPELLANT’S STATE AND FEDERAL
6[TH] AND 14TH AMENDMENT CONSTITUTIONAL RIGHTS TO
EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS,
AND CONSTITUTES AN ILLEGAL SENTENCE.

(Appellant’s Brief at 10−11a-11b).4

In issues one through three, Appellant raises layered claims of

ineffective assistance of counsel against Attorney Shreve ultimately relating

to trial issues. Appellant argues that after Attorney Shreve was appointed to

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4
Appellant has two pages of his brief numbered as “11.”

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replace Attorney Engle on Appellant’s first PCRA petition, Attorney Shreve

should have amended the petition to allege (1) trial counsel was ineffective

for giving Appellant erroneous advice on whether to request a severance of

the firearms charge; and (2) the trial court lacked jurisdiction over the third

robbery count because that count had previously been dismissed at

Appellant’s preliminary hearing, and trial counsel was ineffective for failing to

file a motion “to have the trial court reflect on which charges were bound

over for court.” (Appellant’s Brief at 62). Appellant concludes this Court

should vacate the robbery conviction and remand for an evidentiary hearing

on the severance issue. We cannot agree.

As a preliminary matter, the timeliness of a PCRA petition is a

jurisdictional requisite, which this Court may address sua sponte.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008);

Commonwealth v. Gandy, 38 A.3d 889 (Pa.Super. 2012), appeal denied,

616 Pa. 651, 49 A.3d 442 (2012). A PCRA petition must be filed within one

year of the date the underlying judgment becomes final. 42 Pa.C.S.A. §

9545(b)(1). A judgment is deemed final at the conclusion of direct review or

at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).

The three statutory exceptions to the PCRA’s timeliness provisions allow for

very limited circumstances under which the late filing of a petition will be

excused. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner asserting a

timeliness exception must file a petition within sixty days of the date the

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claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).

Additionally, the PCRA petitioner must plead and prove his allegation

of error has not been previously litigated or waived. 42 Pa.C.S.A. §

9543(a)(3). “[A]n issue is waived if the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal or in a

prior state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). Where

PCRA counsel seeks to withdraw from representation, the petitioner must

preserve any challenge to counsel’s ineffectiveness in a response to

counsel’s no-merit letter or, if applicable, the court’s Rule 907 notice. See

Commonwealth v. Pitts, 603 Pa. 1, 9 n.4, 981 A.2d 875, 880 n.4 (2009).

Instantly, the trial court originally sentenced Appellant on July 24,

2002. This Court affirmed the judgment of sentence on November 17, 2003,

and the Pennsylvania Supreme Court denied allowance of appeal on August

12, 2004. Thus, Appellant’s original judgment of sentence became final on

November 10, 2004, upon expiration of the time to file a petition for writ of

certiorari with the United States Supreme Court. See U.S.Sup.Ct.R. 13; 42

Pa.C.S.A. § 9545(b)(3). On June 16, 2005, Appellant timely filed his first

pro se PCRA petition from his original judgment of sentence. The PCRA

court appointed Attorney Engle, who filed a no-merit letter and petition to

withdraw. The court dismissed the petition and granted Attorney Engle

leave to withdraw. On appeal, this Court vacated the PCRA court’s order and

remanded the matter based on Attorney Engle’s deficient no-merit letter.

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On remand, the PCRA court appointed Attorney Shreve to replace Attorney

Engle. While represented by Attorney Shreve, Appellant filed a pro se

motion, asserting he was unlawfully sentenced as a “third strike” offender

under Section 9714. Attorney Shreve subsequently filed a petition to

withdraw and no-merit letter with respect to the other issues on remand.

Appellant filed a pro se response in which he addressed the illegal sentence

issue only. The PCRA court granted relief limited to that issue. Appellant

did not appeal the PCRA’s court order. The court resentenced Appellant

without application of the “third strike” provision on April 8, 2009, and

Appellant filed a direct appeal from his new judgment of sentence. Following

conclusion of that direct appeal process, Appellant filed the current PCRA

petition pro se on March 28, 2011. After the PCRA court dismissed the

petition, this Court determined on appeal that Appellant was entitled to

counsel because it was Appellant’s first petition filed after imposition of his

new judgment of sentence. See Pa.R.Crim.P. 904(C) (stating PCRA court

shall appoint counsel to represent indigent defendant for first PCRA petition).

On remand, the court appointed Attorney Tobias, who filed an amended

petition.

The relief granted on Appellant’s initial PCRA petition, which was

limited to resentencing, did not reset the clock for purposes of calculating

the date Appellant’s judgment of sentence became final with respect to

claims unrelated to the resentencing, i.e., Appellant’s claims concerning

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Attorney Shreve’s representation during Appellant’s initial PCRA petition.

See Commonwealth v. Dehart, 730 A.2d 991, 993 n.2 (Pa.Super. 1999),

appeal denied, 560 Pa. 719, 745 A.2d 1218 (1999) (stating successful PCRA

petition does not affect calculation of finality of judgment of sentence where

relief granted neither restored petitioner’s direct appeal rights nunc pro tunc

nor disturbed conviction, but affected petitioner’s sentence only).

Specifically, Appellant now challenges Attorney Shreve’s effectiveness for

failing to raise claims of ineffective assistance against trial counsel.

Appellant’s petition is a “serial” petition with respect to those claims. Their

timeliness must be measured against the date Appellant’s original judgment

of sentence became final: November 10, 2004. Appellant filed the current

PCRA petition on March 28, 2011. Therefore, Appellant’s petition is patently

untimely with respect to the allegations of layered ineffective assistance in

connection with Appellant’s initial PCRA petition; and Appellant failed to

plead and prove any exception to the PCRA time bar. See 42 Pa.C.S.A. §

9545(b)(1). Consequently, the PCRA court lacked jurisdiction over those

specific claims. See Hackett, supra. Moreover, Appellant had the

opportunity to bring those claims during the proceedings on the initial PCRA

petition. When Attorney Shreve sought to withdraw, Appellant could have

raised his allegations of layered ineffective assistance of counsel in a

response to the withdrawal petition. See Pitts, supra. Instead, Appellant

filed a pro se response in which he argued only that his original sentence

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was unlawful. Thus, Appellant’s layered claims of ineffectiveness would be

waived in any event. See id.

Appellant’s remaining five issues relate to his resentencing on April 8,

2009. Dehart arguably forecloses review of those claims as well. See

Dehart, supra at 993 n.2 (stating: “[T]he relief granted in the first PCRA

action did not affect the adjudication of guilt, but merely the sentence

imposed. Because the purpose of the PCRA is to prevent a fundamentally

unfair conviction…and the issue of appellant’s conviction was not disturbed

on the prior PCRA action, we find that this petition constitutes appellant’s

second attempt at collateral relief”). Nevertheless, in Dehart, this Court did

not have the benefit of the petitioner’s second PCRA petition in the certified

record to confirm the nature of his claims and whether they related to the

petitioner’s new sentence. Additionally, the Dehart Court considered only

one purpose of the PCRA—to prevent a fundamentally unfair conviction. The

statute, however, expressly provides a remedy for defendants serving illegal

sentences too. See 42 Pa.C.S.A. § 9542 (stating: “This subchapter provides

for an action by which persons convicted of crimes they did not commit and

persons serving illegal sentences may obtain collateral relief”) (emphasis

added). Therefore, we consider Appellant’s current petition his “first” with

respect to claims arising out of the new sentence imposed on April 8, 2009.

That judgment of sentence became final on March 7, 2011, after expiration

of the ninety-day period to file a petition for writ of certiorari with the United

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States Supreme Court. See U.S.Sup.Ct.R. 13. Thus, the current PCRA

petition, filed on March 28, 2011, is timely with respect to Appellant’s claims

relating to his new sentence. See 42 Pa.C.S.A. § 9545(b)(1).

Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if the record contains any support for those findings.

Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). A petitioner is

not entitled to a PCRA hearing as a matter of right; the PCRA court can

decline to hold a hearing if there is no genuine issue concerning any material

fact, the petitioner is not entitled to PCRA relief, and no purpose would be

served by any further proceedings. Commonwealth v. Hardcastle, 549

Pa. 450, 701 A.2d 541 (1997).

The law presumes counsel has rendered effective assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When

asserting a claim of ineffective assistance of counsel, a petitioner is required

to make the following showing: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and,

(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.

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Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).

The failure to satisfy any prong of the test for ineffectiveness will cause the

claim to fail. Williams, supra.

“The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit…” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal

denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v.

Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)).

Once this threshold is met we apply the “reasonable basis”
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

Prejudice is established when [a defendant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The defendant
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. In [Kimball, supra], we held
that a “criminal defendant alleging prejudice must show
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

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(2002) (some internal citations and quotation marks omitted).

In issues four and five, Appellant argues the court improperly applied

his prior record score (“PRS”) of six to each offense during resentencing

(except for the sole robbery count subject to a mandatory minimum term).

Appellant contends all offenses stemmed from the same transaction, so

under the Sentencing Guidelines the court should have applied Appellant’s

PRS to the remaining robbery convictions only, since robbery was the

highest-graded offense. Appellant claims the court should have applied a

PRS of zero to the remaining offenses. Appellant asserts Attorney Shreve

was ineffective for failing to object to the way the court applied the

sentencing guidelines during resentencing. Relatedly, Appellant argues the

PCRA court improperly denied his “motion to file an amended PCRA petition

and/or for the court to take judicial notice of typo,” in which Appellant

sought to clarify that he accidentally cited to the wrong section of the

Sentencing Guidelines in his amended pro se PCRA petition. Appellant

concludes he is entitled to resentencing. We disagree.

Instantly, Appellant committed the offenses in question in 2001. The

5th Edition of the Sentencing Guidelines was in effect from June 13, 1997, to

June 3, 2005. Therefore, that edition of the Sentencing Guidelines was

applicable when the court resentenced Appellant. See Commonwealth v.

Maneval, 688 A.2d 1198 (Pa.Super. 1997) (stating applicable sentencing

guidelines are those in effect at time offense was committed). Appellant’s

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argument relies on prior editions of the Sentencing Guidelines, which

directed the trial court to apply a defendant’s PRS to the offense with the

highest offense gravity score only, when imposing sentences for convictions

arising out of the same transaction. See 204 Pa.Code 303.7(a) (4th

Edition); 204 Pa.Code 303.6(a) (revised 3rd edition). That language,

however, is absent from the 5th Edition of the Sentencing Guidelines, which

was the version in effect at the time Appellant committed the offenses at

issue. Therefore, Appellant’s claim that Attorney Shreve should have

objected to the resentencing court’s across-the-board application of

Appellant’s PRS, based on outdated law, lacks arguable merit.5 See Pierce,

supra.

In his sixth issue, Appellant argues the resentencing court improperly

“double counted” his prior record when it factored Appellant’s criminal

history and lack of amenability to rehabilitation into its sentencing decision.

Appellant contends the General Assembly already considered prior

convictions and rehabilitative potential in formulating the mandatory

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5
Appellant’s “typo” in his PCRA petition was his citation to 204 Pa.Code
303.6(a), which formerly contained the relevant language later moved to
Section 303.7(a). Appellant wished to clarify that he meant to cite to
Section 303.7. Nevertheless, the language relied on by Appellant had been
completely removed from Section 303.7 and the entire Sentencing
Guidelines by the time Appellant committed the offenses. Therefore,
Appellant’s “typo” was inconsequential, and he incurred no prejudice from
the court’s denial of his motion to correct the typo or have the court take
“judicial notice” of it.

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minimum statute and the applicable sentencing guidelines. Appellant

concludes Attorney Shreve was ineffective for failing to raise the issue at

resentencing and on direct appeal. We disagree.

“It is impermissible for a court to consider factors already included

within the sentencing guidelines as the sole reason for increasing or

decreasing a sentence to the aggravated or mitigated range.”

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006). The

sentencing court, however, is allowed to use prior conviction history and

other factors already included in the guidelines to supplement other

sentencing information. Id.

Section 9714 of the Sentencing Code provides in relevant part as

follows:

Any person who is convicted in any court of this
Commonwealth of a crime of violence shall, if at the time
of the commission of the current offense the person had
previously been convicted of a crime of violence, be
sentenced to a minimum sentence of at least ten years of
total confinement, notwithstanding any other provision of
this title or other statute to the contrary.

42 Pa.C.S.A. § 9714(a)(1).

Instantly, upon resentencing Appellant on April 8, 2009, the court

stated the following reasons for the sentence:

So in terms of the relevance for sentencing, that PSI, we
considered and even referred to in the sentencing
transcript from July of 2002. So that the reasons we gave
for our resentencing at that time are no less applicable
then as they are now in terms of the background and the
facts and circumstances concerning the sentence we

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imposed at that time.

I would note that we have—just in terms of [Appellant],
what [you have] done while you’ve been incarcerated,
we’ll note that favorably.

In addition to that, [Appellant], you do appear for the brief
time you’ve been here far different than you were back in
2001-2002. So I do want to at least note in terms of your
presentation here was far different than it was before.

I will also note that prior to this, in your words you were
out of—since the age of 13, you weren’t out of prison for
more than 5 months at one time. Those were your words
in the presentence report.

In addition to that, you at the time throughout the
proceedings have maintained you were innocent. This is
the first time I’ve heard you accept any responsibility.
Quite frankly, that undermines your acceptance of
responsibility when at the time you could have. When it
was in your benefit not to do that, you chose to maintain
your innocence, still do that.

So when you come here today and say, oh, I accept
responsibility, it is not as persuasive to the [c]ourt as if
you would have done it back then, because it was in your
best interest, it was to your benefit to maintain your
innocence. That to me, when you now accept it, just is
undermined. So we’ve considered that.

In addition, we’ve considered again in imposing sentence
that the short—the opportunities you did have for
vocational training, educational training afforded you in the
state correctional institute, that didn’t produce any results
from previous state sentences, that within a short time of
your release and indeed in this case within a matter of, oh,
I think it was less than 2 months, it was quickly, just being
released on the homicide charge, that you committed this
offense.

So I’m not looking at your prior record. I’m looking at
the opportunities that were afforded you in the past to be
successful vocationally, educationally and probably more

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significant in controlling your violence and anger that’s
manifested in the robberies, those types of offenses that
you were engaged in. That hasn’t changed.

(N.T. Resentencing, 4/8/09, at 22-24) (emphasis added). The court’s

remarks made clear it did not sentence Appellant in the aggravated range

for any of his convictions based solely on his prior record. Further, the

single mandatory minimum sentence imposed, based on a prior conviction,

was no higher than the ten-year minimum term prescribed by Section 9714.

See 42 Pa.C.S.A. § 9714(a)(1). At the time, the court had no discretion to

impose a lower sentence on that robbery count. Therefore, Appellant’s claim

that the court engaged in impermissible “double counting” lacks arguable

merit, and Attorney Shreve was not ineffective for failing to raise that

specific claim in his challenge to the discretionary aspects of Appellant’s

sentence. See Pierce, supra; Shugars, supra.

In his seventh issue, Appellant argues his sentence was contrary to

the legislative intent behind Section 9714. Appellant asserts the court

acknowledged its mistake in initially sentencing Appellant as a third-strike

offender under that statute, but it still imposed a harsh sentence appropriate

for third-strike offenders upon resentencing. Appellant contends the

sentence did not afford him the opportunity for rehabilitation intended for

second-strike offenders. Appellant claims Section 9714 did not authorize the

court to impose a sentence beyond the ten-year mandatory minimum.

Appellant submits Attorney Shreve was ineffective for failing to challenge

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Appellant’s new sentence based on the legislative intent and constitutionality

of Section 9714. Appellant concludes he is entitled to resentencing. We

disagree.

Instantly, Appellant conflates his single mandatory minimum sentence

with his aggregate sentence of forty (40) to eighty (80) years. The court’s

application of Section 9714 related to only one of Appellant’s robbery

convictions. For that conviction, the court imposed a mandatory minimum

term of ten (10) years’ incarceration, consistent with the requirements of

Section 9714. See 42 Pa.C.S.A. § 9714(a)(1). Section 9714 in no way

prohibited the court from exercising its discretion to link that sentence

consecutively with Appellant’s other individual sentences. Therefore,

Appellant’s claim that his sentence was inconsistent with Section 9714 lacks

arguable merit, and Attorney Shreve was not ineffective for declining to

pursue it.6 See Pierce, supra.

____________________________________________

6
To the extent Appellant suggests his new aggregate sentence was
excessive, Attorney Shreve raised that claim in a post-sentence motion and
this Court disposed of it on direct appeal. Therefore, that particular claim
has been previously litigated. See 42 Pa.C.S.A. § 9543(a)(3) (stating
petitioner must prove allegation of error has not been previously litigated or
waived to be eligible for PCRA relief). Moreover, direct challenges to the
discretionary aspects of sentencing are not cognizable under the PCRA. See
Commonwealth v. Wrecks, 934 A.2d 1287 (Pa.Super. 2007).
Additionally, Appellant failed to develop any argument regarding the
“constitutionality” of Section 9714. Therefore, that aspect of Appellant’s
issue is waived. See Commonwealth v. Beshore, 916 A.2d 1128
(Pa.Super. 2007), appeal denied, 603 Pa. 679, 982 A.2d 509 (2007) (en
(Footnote Continued Next Page)

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In his eighth issue, Appellant argues his presentence investigation

(“PSI”) report contained numerous factual inaccuracies relied on by the

resentencing court. Appellant contends he had no opportunity before

resentencing to review or discuss with Attorney Shreve any information

contained in the PSI report. Appellant further asserts the court improperly

considered prior juvenile offenses where Appellant was not represented by

counsel. Appellant claims Attorney Shreve was ineffective for failing to

object to inaccuracies in the PSI report and to the court’s reliance on

Appellant’s prior juvenile offenses. Appellant concludes this Court should

vacate the judgment of sentence and remand for resentencing. We

disagree.

This Court has stated the following with respect to allegations of errors

in PSI reports:

Where…the accuracy of the presentence report has been
challenged at the sentencing hearing, the sentencing court
cannot solely rely on the presentence report to satisfy the
record requirements of its sentencing function. Thus,
whenever the information contained in the pre-sentence
report is challenged by the defendant at sentencing, it is
incumbent upon the court to engage in a fact finding
function to determine the truth or falsity of the statements
contained in the report. The reliance sentencing courts
enjoy regarding pre-sentence reports in the sentencing
process presumes their accuracy. When it is alleged that
the reports contain untruths, it is imperative that the
sentencing court make the appropriate determination on
_______________________
(Footnote Continued)

anc) (stating failure to develop adequate argument in appellate brief may
result in waiver of claim).

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the record of the factual basis for the sentence imposed.

Commonwealth v. Kerstetter, 580 A.2d 1134, 1136 (Pa.Super. 1990).

Instantly, the resentencing court incorporated the same PSI report and

juvenile record used at Appellant’s initial sentencing in 2002. Appellant had

previous opportunities to object to those documents. Further, the PCRA

court addressed Appellant’s allegations of factual inaccuracies in his PSI

report as follows:

No inaccuracies existed in the [PSI report], which caused
prejudice to [Appellant] at resentencing. The court relied
upon no erroneous information as to [Appellant’s] juvenile
history, background or criminal record, which required
correction by resentencing counsel and therefore no
ineffectiveness occurred.

We address each of the alleged inaccuracies asserted in
the January 14, 2013 Counseled Petition, Claims 1-7, as
presented:

1. [Appellant] had a high school diploma prior to
sentencing on July 24, 2002.

[Appellant] fails to demonstrate how he suffered prejudice
by the court’s order on July 24, 2002 that he obtain a
GED, alleging that he already possessed a high school
diploma. The court imposed that condition as
rehabilitative not punitive.

No need existed to correct or to inform the court of
[Appellant’s] high school diploma at resentencing in 2009,
because [Appellant] did so himself, stating to the court[:]

[W]hen you sentenced me last time you ordered me
to go upstate and to get a high school diploma and
enroll in some other programs. But I already had a
high school diploma which I got in [19]99.

[N.T. Resentencing, 4/7/09, at 15].

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J-S58042-16

Accordingly, no ineffectiveness occurred.

2. [Appellant] worked at temp agencies and participated in
preaching at the Boys & Girls Club prior to his 2001 arrest.

No ineffectiveness occurred in relation to the alleged
omission of such information from the PSI where
[Appellant] provided such information to the court on the
record [at] resentencing. [Appellant] stated:

Even prior to when I found myself getting back into
the streets, I had completed a drug program,
Conewago in Wernersville. Also, the monitors there
really took a liking to how I carried myself. They
wanted me to stay out of trouble for two years so I
could come back and work in their facility. I also
while I was there was [t]eaching at the Boys and
Girls Club.

* * *

[Id. at 14].

3. [Appellant] could not enroll in vocational classes during
his previous sentence because he was 17 years old and did
not have a high school diploma.

[Appellant] fails to present argument as to how this
alleged omission or inaccuracy created prejudice and is
therefore waived. Further, the court did not recite that
factor in sentencing or resentencing.

4. [Appellant] had only 1 previous adult conviction,
serving a 2-10 year sentence; [p]rior, he served 2 juvenile
terms for 6-9 months in 1993 and 9-12 months in 1995;
[n]ever arrested for an assault at age 8 nor did he have a
conviction for robbery in June or August of 1993.

The court properly relied upon and referred to the certified
record of the Clerk of Courts as to [Appellant’s] history of
criminal offenses.

[Appellant’s] claim that the court improperly relied upon

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an “arrest for assault at age 8” lacks merit. The court
properly noted [Appellant’s] juvenile offenses at both the
initial sentencing and resentencing, namely, that
[Appellant] served 2 juvenile terms for 6-9 months in 1993
and 9-12 months in 1995.

* * *

The court did not state, as [Appellant] argues, that he was
“arrested” [at age 8]. Rather the court stated[:]

Those certainly have been afforded you over—really
since age 13, and you even have at age 8 an
aggravated assault contact with the juvenile
probation office. That was warned and closed.

[N.T. Sentencing, 7/24/02, at 12].

5. [Appellant] had no robbery conviction in June or August
of 1993.

The court did not refer to a [1993] robbery conviction. Id.

6. [Appellant] had no weapon conviction in 1996 or
robbery conviction in 1996[.]

The [c]ourt properly relied upon the certified dockets
which reflect prior convictions.

7. [Appellant] was at Loysville in Jan[uary] 1995 not
Paradise School[.]

The court correctly referred to “Loysville” as set forth in
the PSI. (“It looks like you went to Loysville for a period of
time”)[.] [Id. at 11].

8. The court was not aware of [Appellant’s] age.

The statements of the court and the testimony of a family
member reflect the court’s awareness of Appellant’s age.
It is insignificant that the court later referred to
[Appellant’s] age as…22[.]

At resentencing, a family member testified, “[Appellant is]

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28 years old and stands before you as a man that has a
total different outlook on life[,] has concerns for others as
well as himself.” [N.T. Resentencing, 4/7/09, at 20].

(PCRA Court Opinion and Order, filed June 8, 2015, at 11-15) (some internal

citations to the record omitted) (emphasis in original). The record supports

the court’s analysis. Appellant’s pro se amended PCRA petition raised

additional allegations of inaccuracies in the PSI report. All of Appellant’s

allegations are unsupported, belied by the record, and/or involve minor

discrepancies or factors not relied on by the resentencing court. The

resentencing court stated its reasons on the record for the new sentence

imposed, including Appellant’s prior convictions for third-degree murder and

robbery, and other evidence of Appellant’s lack of amenability to

rehabilitation. Appellant fails to demonstrate that but for Attorney Shreve’s

failure to raise Appellant’s allegations regarding the PSI report, the outcome

of the resentencing proceedings would have been different. See

Chambers, supra. Appellant also fails to provide any support for his bald

assertion that he was unrepresented by counsel during his prior juvenile

adjudications, or that Attorney Shreve was aware of Appellant’s purported

lack of representation. Therefore, Appellant’s final challenge to Attorney

Shreve’s effectiveness merits no relief. See Kimball, supra. Based on the

foregoing, the court properly denied Appellant’s PCRA petition. Accordingly,

we affirm.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/22/2016

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