J-S88036-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEFRAN CANALES-TAPIA, :
:
Appellant : No. 1143 EDA 2016
Appeal from the PCRA Order March 16, 2016
in the Court of Common Pleas of Lehigh County
Criminal Division, at No(s): CP-39-CR-0002036-2013
BEFORE: OLSON, RANSOM, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 22, 2017
Jefran Canales-Tapia (Appellant) appeals pro se from the March 16,
2016 order1 that dismissed his petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On December 18, 2013, Appellant pled guilty to conspiracy to commit
robbery in exchange for the Commonwealth’s withdrawal of charges of
homicide, conspiracy to commit homicide, and robbery. On February 12,
2014, Appellant was sentenced to 75 to 240 months of incarceration.
Appellant filed a direct appeal challenging the discretionary aspects of his
sentence. This Court concluded that Appellant presented a substantial
question for review, but affirmed the judgment of sentence following
1
The order was dated March 14, 2016, docketed on March 15, 2016, and
served upon the parties on March 16, 2016.
*Retired Senior Judge assigned to the Superior Court.
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consideration of the merits of Appellant’s challenge. Commonwealth v.
Canales-Tapia, 121 A.3d 1119 (Pa. Super. 2015).
Appellant pro se timely filed a PCRA petition on January 5, 2016.
Counsel was appointed, and on February 11, 2016, filed a motion to
withdraw as counsel pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). On February 17, 2016, the PCRA court permitted counsel
to withdraw and issued notice of its intent to dismiss Appellant’s petition.
Appellant filed a lengthy response to the PCRA court’s notice on March 11,
2016. Finding Appellant’s response unpersuasive, the PCRA court dismissed
Appellant’s petition, and Appellant timely filed a notice of appeal. 2
Appellant presents three questions for our review, which we have
reordered for ease of disposition:
1. Did the trial court violate Appellant’s rights under the United
States and Pennsylvania constitutions by imposing a sentence
based on a crime committed by Appellant’s co-defendant?
2. Was trial/appellate counsel ineffective in representing
Appellant when he presented the core of his sentencing
challenge without citing any case law in support thereof?
3. Was PCRA counsel ineffective in representing Appellant when
he submitted a “no merit” letter instead of challenging prior
counsel’s ineffectiveness and challenging an improperly imposed
sentence?
Appellant’s Brief at 4 (unnecessary articles and capitalization omitted).
2
The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal, and none was filed.
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We begin with our standard of review.
This Court analyzes PCRA appeals in the light most
favorable to the prevailing party at the PCRA level. Our review
is limited to the findings of the PCRA court and the evidence of
record and we do not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error.
Similarly, we grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference
to its legal conclusions. Where the petitioner raises questions of
law, our standard of review is de novo and our scope of review is
plenary. Finally, we may affirm a PCRA court's decision on any
grounds if the record supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).
With his first question, Appellant seeks to re-litigate the underlying
issue of whether the sentencing court relied on an improper factor in
sentencing him to the statutory maximum. Appellant’s Brief at 12-19. This
he may not do. See Commonwealth v. Brown, 872 A.2d 1139, 1145 (Pa.
2005) (“Appellant cannot obtain post conviction review of claims previously
litigated on appeal by presenting new theories of relief to support the
previously litigated claims.”). Furthermore, “[r]equests for relief with
respect to the discretionary aspects of sentence are not cognizable in PCRA
proceedings.” Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa.
Super. 2007). Accordingly, that claim merits no relief from this Court.
Appellant’s remaining questions challenge the effectiveness of his
counsel.
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Counsel is presumed effective and will only be deemed
ineffective if the petitioner demonstrates that counsel’s
performance was deficient and he was prejudiced by that
deficient performance. Prejudice is established if there is a
reasonable probability that, but for counsel’s errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.
To properly plead ineffective assistance of counsel, a petitioner
must plead and prove: (1) that the underlying issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice resulted from
counsel’s act or failure to act. If a petitioner fails to plead or
meet any elements of the above-cited test, his claim must fail.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citation
omitted).
Appellant first claims that his direct appeal counsel was ineffective in
failing to offer case law to support his sentencing challenge in his appellate
brief. Counsel had, according to this Court, argued as follows:
Appellant complains that this sentence was an abuse of the
court’s discretion because the court relied solely on the fact that
Appellant’s “actions led to the death of the victim….” Appellant
maintains that the court essentially punished him for the
homicide, despite the fact that he was not convicted of that
offense. In other words, he argues that the sentence was “not
justified by the facts and the charges to which [Appellant]
entered his guilty plea.” Appellant also avers that his sentence
was excessive where his codefendant, who was the actual
shooter, received a lesser sentence for the crime of conspiracy to
commit robbery.
Canales-Tapia, 121 A.3d 1119 (unpublished memorandum at 4) (citations
omitted). This Court considered the trial court’s explanation for its sentence,
which included the following:
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The [trial c]ourt would note that [Appellant’s co-conspirator]
pled to both [c]riminal [h]omicide and [conspiracy to commit]
[r]obbery. He received an aggregated sentence of no less than
20 years nor more than 40 years of incarceration. It is the [trial
c]ourt’s assertion that the victim’s death was factored into the
sentence imposed [for] the count of [c]riminal [h]omicide, a
sentence far greater than the [75 to 240 months’ incarceration]
imposed on [] Appellant for his guilty plea to [c]onspiracy to
[c]ommit [r]obbery, although [] Appellant’s role in the victim’s
death was not insignificant. It is the [trial c]ourt’s opinion that
the sentence imposed on [] Appellant for his role in the robbery
of the victim, which ultimately ended in the victim’s death, was
not the result of an abuse of discretion.
Id. at 5-6. This Court thereafter disposed of Appellant’s claim as follows:
The record of Appellant’s sentencing hearing, and the trial
court’s statement of the factors it considered in fashioning
Appellant’s sentence, convince us that the court did not abuse its
discretion in imposing Appellant’s aggravated range sentence.
Appellant offers no legal support for his suggestion that,
because he did not plead guilty to homicide, the court was not
permitted to consider the fact that the victim was shot and killed
in determining the appropriate sentence for Appellant’s crime of
conspiracy to commit robbery. Indeed, this Court has stated
that criminal conduct for which a defendant “escaped
prosecution has long been held [to be] an acceptable sentencing
consideration” where “there is evidentiary proof linking the
defendant to the conduct.” Commonwealth v. P.L.S., 894
A.2d 120, 130 (Pa. Super. 2006). Here, Appellant admitted that
he went to the victim’s home with [his co-conspirator] in order
to rob the victim, who was ultimately shot and killed during the
commission of that offense. Although the Commonwealth
withdrew Appellant’s homicide charge pursuant to his plea
agreement, the court was well-within its discretion to consider
the fact that the victim was murdered during the course of the
robbery in fashioning Appellant’s sentence for conspiracy.
Accordingly, Appellant’s sentencing claim does not entitle him to
relief.
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Canales-Tapia, 121 A.3d 1119 (unpublished memorandum at 6-7)
(emphasis added). Appellant focuses upon the emphasized language above
to argue that his counsel offered constitutionally-deficient representation.
Appellant offers a number of cases he believes his appellate counsel
should have cited to support his sentencing challenge. Appellant’s Brief at
7-8. These cases stand for the uncontroversial principle that sentences
based upon impermissible considerations must be vacated. See, e.g.,
Commonwealth v. Stufflet, 469 A.2d 240, 243 (Pa. Super. 1983) (“[I]f it
reasonably appears from a review of the entire record that the sentencing
court may have relied in whole or in part upon an impermissible
consideration, the sentence is invalid and must be vacated.” (citation and
internal quotation marks omitted)).
However, none of these cases stands for the proposition Appellant
advanced in his direct appeal, and argues again in this appeal: that the
sentencing court was not permitted to consider the fact that the robbery
victim was killed during the course of the robbery committed by Appellant
because the homicide count was withdrawn by the Commonwealth. Rather,
the cases Appellant offers are based upon materially distinguishable factual
scenarios. See Commonwealth v. Bethea, 379 A.2d 102, 107 (Pa. 1977)
(“A fair reading of the trial court’s remarks prior to the imposition of
sentence… indicates that the judge may have been influenced by the fact
that appellant chose to stand trial rather than plead guilty, with a possible
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resultant augmentation of the sentences imposed.”); Stufflet, 469 A.2d at
242-43 (holding that it was improper for the sentencing court to consider
that one member of the group raped someone during an armed robbery
where Stufflet was not convicted of conspiracy3 and rape was not part of the
plan); Commonwealth v. Cruz, 402 A.2d 536, 536 (Pa. Super. 1979) (“An
unsubstantiated statement that a defendant is a major drug dealer would be
an inappropriate factor in a judge’s imposition of sentence.” (emphasis
omitted)).
Accordingly, Appellant has failed to convince us that the outcome of
his appeal would have been different had counsel cited this case law in his
brief, and his claim fails for lack of prejudice. Commonwealth v. Reed,
971 A.2d 1216, 1227 (Pa. 2009) (holding appellant could not prevail on
3
Indeed, Appellant’s arguments appear to be fueled by his incredulity at
being held accountable for the actions of his co-conspirator after he pled
guilty to conspiracy. In all of the extensive research Appellant appears to
have done into state and federal law, Appellant must have overlooked the
well-established principles of co-conspirator liability.
The general rule of law pertaining to the culpability of
conspirators is that each individual member of the conspiracy is
criminally responsible for the acts of his co-conspirators
committed in furtherance of the conspiracy. The co-conspirator
rule assigns legal culpability equally to all members of the
conspiracy. All co-conspirators are responsible for actions
undertaken in furtherance of the conspiracy regardless of their
individual knowledge of such actions and regardless of which
member of the conspiracy undertook the action.
Commonwealth v. Lambert, 795 A.2d 1010, 1016-17 (Pa. Super. 2002)
(citation omitted).
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claim that appellate counsel filed a defective brief when he was unable to
establish actual prejudice).
Because Appellant has not established that he suffered any prejudice
from direct appeal counsel’s failure to cite authority in his brief, Appellant’s
claim that PCRA counsel was ineffective in withdrawing pursuant to Turner
and Finley rather than litigating that meritless claim also fails.
Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (“Counsel will
not be deemed ineffective for failing to raise a meritless claim.”).
For the above reasons, Appellant has failed to persuade us that any
abuse of discretion or error of law on the part of the PCRA court entitles him
to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
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