J-S41021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ALEXANDRA ELIZABETH SEXTON              :
                                         :
                   Appellant             :   No. 3567 EDA 2017

                Appeal from the PCRA Order October 3, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0002643-2014

BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 07, 2018

     Appellant, Alexandra Elizabeth Sexton, appeals from the order entered

on October 3, 2017, dismissing her petition for relief filed under the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.

     We previously summarized the underlying facts of this case:

        On July 31, 2014, Appellant entered a guilty plea to, inter
        alia, acquiring a controlled substance by misrepresentation.
        The same day, Appellant was sentenced to a treatment
        program, treatment court, and [30] months of probation.
        Appellant subsequently violated her probation, and on July
        23, 2015, she was terminated from treatment court, was
        sentenced to [36] months of intermediate punishment "only
        to be released to an available bed," and was ordered to enter
        a long-term treatment program.

        Appellant violated the terms of her county intermediate
        punishment sentence in June of 2016 by having a positive
        drug screen and failing to pay costs. On August 3, 2016, a
        hearing was held and Appellant stipulated to the failed drug
        screen. The trial court and Appellant's counsel explained to
        Appellant the benefit of entering a State Intermediate

____________________________________
* Former Justice specially assigned to the Superior Court.
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            Punishment ("SIP") program being proposed by the
            Commonwealth that would provide Appellant treatment and
            an anticipated step down in her level of incarceration and
            supervision.    Appellant indicated her interest in being
            evaluated for this program, and the matter was continued for
            purposes of an evaluation to determine Appellant's eligibility
            for the program.

            A hearing was held on November 15, 2016, and at that
            hearing, despite being approved for the SIP program,
            Appellant stated that she did not want to enter the program.
            The trial court explained that if Appellant declined to enter
            the program, the court would proceed to sentencing
            Appellant and discussed the sentencing guidelines. Appellant
            stipulated to the violations of failing to pay costs and a failed
            drug screen, and she stated that she wished to proceed to
            sentencing. The trial court sentenced Appellant to four to
            eight years of incarceration.

            Appellant filed a post-sentence motion on November 18,
            2016. The trial court scheduled a hearing on Appellant's
            post-sentence motion for December 16, 2016, and on
            December 14, 2016, vacated the sentence imposed on
            November 15, 2016, pending the hearing on the post-
            sentence motion. Following the hearing on December 16,
            2016, the trial court imposed the same sentence of four to
            eight years of incarceration.

Commonwealth v. Sexton, 175 A.3d 420 (Pa. Super. 2017) (unpublished

memorandum) at 1-3 (internal footnote and citations omitted).

        We affirmed Appellant’s judgment of sentence on July 27, 2017. Id. at

1-11.

        On August 24, 2017, Appellant filed the current, counseled PCRA

petition.     Within the petition, Appellant claimed that her trial counsel was

ineffective during the sentencing hearing because counsel failed to provide the

trial court with the following mitigating evidence:



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       [A] letter from Don Lipstein – [Appellant’s] step-father. In
       sum, Mr. Lipstein notes that he has accepted [Appellant] as
       his own daughter since her early teen-aged years and that
       her struggles began due to significant losses in her life. He
       also notes that he will continue to note [sic] [Appellant].

       . . . [A] letter from Emily Cheeseman, who is [Appellant’s]
       step-sister.    She, in sum, notes [Appellant’s] amazing
       character as exhibited by her supporting her family as they
       grieved and whenever they needed her the most.

       . . . [A] letter from Rebecca Sarson, [Appellant’s] supervisor
       from David's Bridal.       In sum, Ms. Sarson notes that
       [Appellant] had amazing work ethic and exceeded all of her
       expectations.

       . . . [A]nother letter from a previous employer, Justin Grilli,
       who also notes that [Appellant] was a strong worker and
       remarks on how polite and cordial she was to customers.

       . . . [A] letter from Drew Alikakos, M.S. Licensed Psychologist.
       In sum, Mr. Alikakos notes that he counseled [Appellant]
       since the age of 13. He notes that not only have [Appellant]
       and her family maintained the desire to cure her addiction
       without the court's intervention, but also that her signs of
       addiction started at a very young age.

       . . . [A] letter from Barbara Oliphant, [Appellant’s] aunt, who
       notes that she is in frequent contact with [Appellant] and is
       constantly supporting her. She highlights [Appellant’s]
       character and compassion for others.

       . . . [A] letter from Angie Riley, a cousin of [Appellant]. Ms.
       Riley notes that [Appellant] has been like a little sister to her
       and recalls [Appellant’s] volunteership at child care work
       centers and, like Ms. Oliphant, stresses [Appellant’s] strong
       sense of compassion.

       . . . [A] letter from childhood friend Erin Densmore, who notes
       her support for [Appellant] and highlights [Appellant’s]
       amicable nature and the quality of her friendship.




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Appellant’s PCRA Petition, 8/24/17, at ¶¶ 22-29 (some internal capitalization

omitted).

        Appellant attached all of the above-summarized letters to her petition.1

See id. at Exhibits B-I.

        On September 7, 2017, the PCRA court provided Appellant with notice

that it intended to dismiss her petition in 20 days, without holding a hearing,

as the claims in the petition were patently meritless. See PCRA Court Order,

9/7/17, at 1-4; see also Pa.R.Crim.P. 907(1). Appellant did not respond to

the notice and, on October 3, 2017, the PCRA court finally dismissed

Appellant’s petition.

        Appellant filed a timely notice of appeal. She raises two claims to this

Court:

          1. Did the [PCRA] court err in denying relief from Appellant’s
          sentence as counsel was ineffective for [his] failure to provide
          mitigation evidence?

          2. Did the [PCRA] court err in denying relief from Appellant’s
          sentence as the sentencing court did not order a pre-
          sentence investigation, nor did it state its reasons for
          disposing of its pre-sentence investigation in sentencing
          [Appellant] to a term of four to eight years [in prison]?
____________________________________________


1   Within her petition, Appellant also claimed:

          [Appellant] is entitled to relief from her sentence as the
          sentencing court did not order a PSI, nor did it state its
          reasons for disposing of the PSI nor its reasons for sentencing
          [Appellant] to a term of imprisonment of four to eight years.

Appellant’s PCRA Petition, 8/24/17, at 8 (some internal capitalization
omitted).

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Appellant’s Brief at 9 (some internal capitalization omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that her conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness 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).

      Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”       Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).          To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

        (1) his underlying claim is of arguable merit; (2) the
        particular course of conduct pursued by counsel did not have
        some reasonable basis designed to effectuate his interests;
        and, (3) but for counsel’s ineffectiveness, there is a
        reasonable probability that the outcome of the challenged
        proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has

explained:

        A claim has arguable merit where the factual averments, if
        accurate, could establish cause for relief.                 See
        Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
        (“if a petitioner raises allegations, which, even if accepted as
        true, do not establish the underlying claim . . . , he or she
        will have failed to establish the arguable merit prong related



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        to the claim”). Whether the facts rise to the level of arguable
        merit is a legal determination.

        The test for deciding whether counsel had a reasonable basis
        for his action or inaction is whether no competent counsel
        would have chosen that action or inaction, or, the alternative,
        not chosen, offered a significantly greater potential chance of
        success. Counsel’s decisions will be considered reasonable if
        they effectuated his client's interests. We do not employ a
        hindsight analysis in comparing trial counsel's actions with
        other efforts he may have taken.

        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.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some

internal quotations and citations omitted). “A failure to satisfy any prong of

the test for ineffectiveness will require rejection of the claim.” Id.

      Further,

        Under the applicable standard of review, we must determine
        whether the ruling of the PCRA court is supported by the
        record and is free of legal error. The PCRA court's credibility
        determinations, when supported by the record, are binding
        on this Court. However, this Court applies a de novo
        standard of review to the PCRA court's legal conclusions.

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (internal citations

omitted).

      First, Appellant claims that her trial counsel was ineffective for failing to

provide the trial court with certain, mitigating character evidence during the

sentencing hearing.    According to Appellant, had the trial court heard the




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character   evidence, it “would     have     fashioned a different sentence.”

Appellant’s Brief at 18. This claim fails.

      The Honorable George A. Pagano was the PCRA court judge in this case

– and Judge Pagano was also Appellant’s judge at sentencing.           As Judge

Pagano explained in his opinion to this Court, “the additional character

evidence presents no reasonable probability that the outcome of the

proceeding would have been resolved differently.”         PCRA Court Opinion,

4/12/18, at 4.    In other words, Judge Pagano concluded that – even if

Appellant had presented the mitigating character evidence to him at the

sentencing hearing – Judge Pagano would have sentenced Appellant to serve

the same, four-to-eight-year term of incarceration.         Id. at 4-5.    Thus,

Appellant was not prejudiced by trial counsel’s alleged failure to present the

mitigating character evidence at sentencing.        Stewart, 84 A.3d at 707

(“Prejudice is established if there is a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different”)

(internal quotations and citations omitted). Appellant’s claim on appeal fails.

      Second, Appellant contends that the trial court abused its discretion at

sentencing because the court did not order a pre-sentence investigation and

did not “state its reasons for disposing of its pre-sentence investigation in

sentencing [Appellant] to a term of four to eight years [in prison].” Appellant’s

Brief at 21. This claim is not cognizable under the PCRA. See 42 Pa.C.S.A. §

9543(a)(2). Therefore, Appellant’s claim on appeal fails.

      Order affirmed. Jurisdiction relinquished.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/18




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