J-S65038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

STEPHEN ALLAN KOVACH

                            Appellant                No. 361 EDA 2015


                 Appeal from the PCRA Order January 14, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0000371-2012
                                          CP-46-CR-0005631-2011


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED NOVEMBER 17, 2015

        Appellant Stephen Kovach appeals from the order of the Montgomery

County Court of Common Pleas dismissing his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We affirm.

        At CP-46-CR-0000371-2012, Appellant was charged with 33 counts of

burglary1 and 138 related offenses, including robbery, criminal trespass,

theft by unlawful taking, receiving stolen property, criminal attempt (theft by

unlawful taking), possession of instrument of crime, criminal mischief, and

fleeing or attempting to elude police officer.2 At CP-46-CR-0005631-2011,
____________________________________________


1
    18 Pa.C.S. § 3502(a).
2
  18 Pa.C.S. §§ 3701(a)(1)(v), 3503(a)(1)(ii), 3921(a), 3925(a), 901(a),
907(a), 3304(a)(5), and 75 Pa.CS. § 3733(a), respectively.
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Appellant was charged with possession of a controlled substance with intent

to deliver, possession of a controlled substance, and possession of drug

paraphernalia.3

         On December 3, 2012, Appellant pled guilty to one count of robbery

and one count of burglary at CP-46-CR-0000371-2012, and one count of

possession at CP-46-CR-0005631-2011.             On January 17, 2013, Appellant

filed a motion to withdraw his guilty plea.          At a June 6, 2013 hearing

addressing Appellant’s motion, Appellant stated that he wanted to withdraw

his motion withdraw his guilty plea. N.T., 6/6/2013, at 8. The trial court

permitted Appellant to withdraw his motion to withdraw his guilty plea. Id.

at 21.

         On June 25, 2013, the trial court imposed the following consecutive

sentences:     6 to 12 months’ imprisonment for possession, 6 to 12 years’

imprisonment for burglary, and 3½ to 7 years’ imprisonment for robbery,

resulting in an aggregate sentence of 10 to 20 years’ imprisonment.

         On July 3, 2013, Appellant filed a pro se post-sentence motion,

claiming counsel ineffectiveness.          The trial court appointed counsel and

conducted a hearing on November 1, 2013.               At the hearing, Appellant

informed the court that he wished to withdraw his post-sentence motion,

waive his right to pursue a direct appeal, and investigate his right to pursue

____________________________________________


3
    35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), respectively.




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the counsel ineffectiveness claims on PCRA. N.T., 11/1/2013, at 9-13. The

trial court found Appellant knowingly, voluntarily, and intelligently waived his

right to a direct appeal and granted his request to withdraw his post-

sentence motion. Id. at 14.

        On February 25, 2014, after receiving correspondence from Appellant

indicating his desire to pursue a PCRA petition, the court appointed counsel.

        On September 29, 2014, counsel filed a PCRA petition, raising the

claims Appellant wanted to pursue.             PCRA Counsel also filed a request to

withdraw as counsel and a Turner/Finley4 no merit letter.

        On November 6, 2014, the PCRA court issued notice of its intent to

dismiss the PCRA petition without a hearing pursuant to Pennsylvania Rule of

Criminal    Procedure     907    and    granted    counsel’s   motion   to   withdraw.

Appellant filed a response. On January 12, 2015, the PCRA court dismissed

the PCRA petition. Appellant filed a timely notice of appeal. Both Appellant

and the PCRA court complied with Pennsylvania Rule of Appellate Procedure

1925.

        Appellant raises the following issues on appeal:

           [1.] Whether trial court erred in not bringing [Appellant] to
           trial within the time period [p]rescribed by [Pa.R.Crim.P.
           600 (A)(2)(e)] and [U.S. Const. amend. VI].

           [2.] Whether trial counsel was ineffective for various
           reasons which include[] failure to file dismissal pursuant to
____________________________________________


4
  Commonwealth v. Turner, 544 A.2d 927 (Pa.1988),                                 and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).



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         [Pa.R.Crim.P.] 600, failure to object to an illegal sentence,
         and an involuntary guilty plea. Trial counsel’s conduct
         violated [U.S. Const. amend. VI] and the three prong test
         in   Commonwealth         v.   Zook,    887     A.2d    1218,
         1227([Pa.]2005).

         [3.] Whether [A]ppellant has a constitutional right to raise
         a claim of an illegal sentence under [U.S. Const. amend. V,
         VIII, XIV] as well as Pa. Const. Art 1 § 10 as [A]ppellant
         received an illegal sentence.

         [4.] Whether trial court erred in accepting a plea that was
         involuntary, unknowing and unintelligent[ly] rendered as a
         defect was presented by way of illegality of sentence,
         thereby violating [U.S. Const. amend. V, VIII, XIV].

         [5.] [Whether t]he right to raise a claim under a newly
         recognized right is affirmed under 42 Pa. C.S. §
         9545(b)(1), (iii) and its retroactivity is applicable under
         the watershed rule exception held in [Teague v. Lane,
         489 U.S. 288 (1989)], and [Schriro v. Summerlin, 542
         U.S. 348 (2004)].

Appellant’s Brief at 3-4.

      Our standard of review from the denial of post-conviction relief “is

limited to examining whether the court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011) (citing Commonwealth v.

Morales, 701 A.2d 516, 520 (Pa.1997)).

      Appellant’s    first   claim   maintains   the   Commonwealth      violated

Pennsylvania Rule of Criminal Procedure 600. Because Appellant could have

raised this claim on direct appeal, the claim is waived and PCRA review is

unavailable. See 42 Pa.C.S. § 9544(b).

      Appellant next claims his trial counsel was ineffective for failing to file

a Rule 600 motion.

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        For ineffective assistance of counsel claims, the petitioner must

establish:    “(1) that the underlying claim has merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) but for

the errors or omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different.” Ousley, 21 A.3d at

1244     (quoting   Commonwealth       v.   Rivera,   10   A.3d   1276,   1279

(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove

any one of the three [ineffectiveness] prongs results in the failure of

petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279). “Allegations of

ineffectiveness in connection with the entry of a guilty plea will serve as a

basis for relief only if the ineffectiveness caused the defendant to enter an

involuntary or unknowing plea.”     Commonwealth v. Hickman, 799 A.2d

136, 141 (Pa.Super.2002) (citing Commonwealth v. Allen, 732 A.2d 582

(Pa.1999)).

        Pennsylvania Rule of Criminal Procedure 600 provides, in relevant

part:

          (A) Commencement of Trial; Time for Trial

          (1) For the purpose of this rule, trial shall be deemed to
          commence on the date the trial judge calls the case to
          trial, or the defendant tenders a plea of guilty or nolo
          contendere.

          (2) Trial shall commence within the following time periods.




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        (a) Trial in a court case in which a written complaint is filed
        against the defendant shall commence within 365 days
        from the date on which the complaint is filed.

        ...

        (C) Computation of Time

        (1) For purposes of paragraph (A), periods of delay at any
        stage of the proceedings caused by the Commonwealth
        when the Commonwealth has failed to exercise due
        diligence shall be included in the computation of the time
        within which trial must commence. Any other periods of
        delay shall be excluded from the computation.

        ...

        (3)(a) When a judge or issuing authority grants or denies a
        continuance:

        (i) the issuing authority shall record the identity of the
        party requesting the continuance and the reasons for
        granting or denying the continuance; and

        (ii) the judge shall record the identity of the party
        requesting the continuance and the reasons for granting or
        denying the continuance. The judge also shall record to
        which party the period of delay caused by the continuance
        shall be attributed, and whether the time will be included
        in or excluded from the computation of the time within
        which trial must commence in accordance with this rule.

Pa.R.Crim.P. 600(A), (C). This Court has further explained:

        Rule 600 provides for dismissal of charges only in cases in
        which the defendant has not been brought to trial within
        the term of the adjusted run date, after subtracting all
        excludable and excusable time. The adjusted run date is
        calculated by adding to the mechanical run date, i.e., the
        date 365 days from the complaint, both excludable and
        excusable delay.

        Excludable time includes delay caused by the defendant or
        his lawyer. Concomitantly, excusable delay occurs where
        the delay is caused by circumstances beyond the
        Commonwealth’s control and despite its due diligence.
        Due diligence is a fact-specific concept that must be

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        determined on a case-by-case basis. Due diligence does
        not require perfect vigilance and punctilious care, but
        rather a showing by the Commonwealth that a reasonable
        effort has been put forth.

Commonwealth v. Roles, 116 A.3d 122, 125 (Pa.Super.2015) (internal

citations and quotation marks omitted).

     The PCRA court found:

        A criminal complaint was filed in case No. 5631-11 (drug
        offenses) on July 24, 2011. The mechanical 365-day run
        date for Rule 600 purposes in that case was thus July 23,
        2012. In case No. 371-12 (burglary, et al), a criminal
        complaint was filed on November 29, 2011. The
        mechanical 365-day run date in that case was thus
        November 28, 2012. [Appellant] entered his guilty plea in
        Case No. 5631-11 on December 3, 2012 - 133 days after
        expiration of the mechanical run date in case No. 5631-11
        and five days after expiration of the mechanical run date in
        case No. 371-12.       The record reflects, however, the
        existence of more than sufficient excludable time for Rule
        600 purposes to render meritless any Rule 600 claim in
        either case.

        [Appellant] appeared before the [trial court] on November
        22, 2011 for a scheduled Pre-Trial Conference (PTC) in
        case No. 5631-11.       At that time, defense counsel
        requested that [Appellant’s] PTC be rescheduled by [c]ourt
        [a]dministration in order to be consolidated with other
        charges “not yet in system” (i.e., the charges ultimately
        brought in case No. 371-12).       [Appellant’s] PTC was
        rescheduled for January 10, 2012. The 49 days between
        November 22, 2011 and January 10, 2012 thus constitute
        excludable time for Rule 600 purposes on case No. 5631-
        11.

        At [Appellant’s] January 10, 2012 PTC, defense counsel
        once again asked that [Appellant’s] PTC be rescheduled by
        [c]ourt   [a]dministration.     [Appellant’s]  PTC   was
        rescheduled for February 29, 2012. The 50 days between
        January 10, 2012 and February 29, 2012 thus constitute
        excludable time for Rule 600 purposes on case No. 5631-
        11.

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       At [Appellant’s] February 29, 2012 PTC, defense counsel
       again asked that [Appellant’s] PTC be rescheduled by
       [c]ourt [a]dministration, to be consolidated with a PTC in
       case No. 371-12. [Appellant’s] PTC was rescheduled for
       May 1, 2012. The 62 days between February 29, 2012
       and May 1, 2012 thus constitute[] excludable time for Rule
       600 purposes on case No. 5631-11.

       On May 1, 2012, [Appellant] appeared before the
       undersigned for a consolidated PTC in both case No. 5631-
       11 and case No. 371-12. At this time [Appellant] asked
       that both cases be place on the [c]all of the [t]rial [l]ist.
       The cases were scheduled for the July 13, 2012 [c]all of
       the [t]rial [l]ist, at which time defense counsel requested
       that the cases be relisted by [c]ourt [a]dministration
       because of ongoing discovery. The cases were rescheduled
       for the September 13, 2012 [c]all of the [t]rial [l]ist.

       At the September 13, 2012 [c]all of the [t]rial [l]ist,
       defense counsel requested that both cases be scheduled
       by the [trial court] for trial. Counsel requested that Case
       No. 371-12 be tried prior to Case No. 5631-11, and
       characterized No. 371-12 as a four (4) day jury trial with
       pre-trial motions. The [trial court] subsequently entered
       an order scheduling Case No. 371-12 for trial during the
       week of December 3, 2012, with a status conference
       scheduled for December 3. [Appellant] then entered his
       guilty plea during the December 3, 2012 status
       conference.

       As noted above, the mechanical 365-day run date on Case
       No. 5631-11 was July 23, 2012, with [Appellant] entering
       his guilty plea on December 3, 2012, 133 days after that
       mechanical run date.        As detailed above, however,
       [Appellant’s] requests for rescheduling resulted in an
       aggregate excludable time of 161 days, meaning that
       [Appellant] was scheduled for trial and entered his guilty
       plea well within the adjusted run date accounting for the
       period of delay occasioned by [Appellant’s] requests.
       Counsel, further, had requested that Case No. 5631-11 not
       be tried until after case No. 371-12. Any Rule 600 motion
       on Case No. 5631-11 would thus have been without merit,
       and defense counsel cannot be faulted for not filing and
       litigating such a motion.


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         In regard to Case No. 371-12, as noted above, the
         mechanical run date was November 28, 2012. [Appellant],
         again, entered his guilty plea on December 3, 2012, five
         days after expiration of that mechanical run date.
         Pa.R.Crim.P. 600(C)(l) plainly provides, however, that only
         periods of delay caused by the Commonwealth are
         included in the computation of the date upon which a
         defendant must be brought to trial, specifying that “any
         other periods of delay shall be excluded from the
         computation.” When [Appellant] requested on September
         13, 2012 that case No. 371-12 be scheduled by the
         undersigned for trial, the date upon which [Appellant] was
         called for trial became subject to the [the trial court’s] trial
         schedule and not to any further action on the part of the
         Commonwealth.         The “delay” between defendant’s
         September 13, 2012 request, that trial be scheduled and
         December 3, 2012 is thus attributable not to the
         Commonwealth, but to the necessity of the fitting a four-
         day jury trial with pretrial motions into the [the trial
         court’s] trial calendar. In this regard we note that, while
         [Appellant’s] mechanical run date expired on Wednesday
         November 28, 2012, [Appellant] was called for trial and
         entered his guilty plea on Monday December 3, 2012, only
         five days later. Any Rule 600 claim on Case No. 371-12
         would thus have been without merit, and defense counsel
         cannot be found ineffective for not litigating such a claim.

Pa.R.A.P. 1925(a) Opinion, 4/8/2015, at 8-11. The PCRA court did not err

when it found the Rule 600 claim, and the counsel ineffectiveness claim for

failing to raise the Rule 600 claim, was meritless.

      Appellant’s third, fourth, and fifth issues maintain the trial court used

an improper offense gravity score when sentencing Appellant, which resulted

in an unknowing and involuntary plea and/or an illegal sentence. He claims

he pled guilty to burglary when no one was present, but the trial court used

the offense gravity score applicable to a burglary when someone was

present. See Appellant’s Brief at 16-26. Appellant also maintains that the


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trial court’s use of an allegedly inaccurate offense gravity score violated

Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

        To the extent Appellant challenges his sentence based on an allegedly

inaccurate offense gravity score, his claim is a challenge to the discretionary

aspect of his sentence.     See Commonwealth v. Lamoda, 52 A.3d 365,

371-72 (Pa.Super.2012). Such challenges are not cognizable on PCRA and

is waived because he could have raised it on direct appeal.       42 Pa.C.S. §

9543.

        Further, to the extent Appellant claims counsel was ineffective for

failing to challenge the sentence, the claim also fails. The PCRA court found

the claim meritless.      1925(a) Opinion, 4/8/2015, 12-14.     Appellant pled

guilty to one count of burglary and the Commonwealth nolle prossed the

remaining 32 counts of burglary. Appellant admitted to the facts contained

in the affidavit, which included burglary counts where no one was present

and burglary counts where individuals were present. Further, at the hearing

on Appellant’s motion to withdraw his guilty plea, Appellant admitted that

persons were present in the home for one of the burglaries. N.T., 6/6/2013,

at 10. The trial court did not err in using the offense gravity score applicable

to a burglary where an individual was present and the PCRA court did nor err

in finding this claim meritless.   Because the underlying claim is meritless,

counsel is not ineffective for failing to raise it.   See Ousley, 21 A.3d at

1244.

        Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2015




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