J-S79023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ZACHARY BROOKS

                         Appellant                   No. 316 EDA 2014


                Appeal from the PCRA Order January 21, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0102601-2006
                          CP-51-CR-0907371-2005


BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 23, 2014

      Appellant, Zachary Brooks, appeals from the order entered on January

21, 2014, dismissing his first petition pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

      The PCRA court aptly set forth the applicable facts and procedural

history of this case as follows:

            [Appellant] was arrested on January 8, 2004 and
        charged with possession with intent to deliver a controlled
        substance (PWID). On October 30, 2004, he was arrested
        again and charged with PWID and conspiracy. He appeared
        before [the trial court] on December 5, 2005 and pled guilty
        to all charges. On January 20, 2006, pursuant to his
        negotiated plea, [Appellant] was sentenced to one year in
        the County Intermediate Punishment (IP) program, to
        include short term inpatient treatment at Self Help and
        three months of house arrest, to be followed by two years
        of reporting probation. He was ordered to complete drug
        and alcohol treatment, seek and maintain employment,

*Retired Senior Judge assigned to the Superior Court.
J-S79023-14


       receive vocational training, stop selling drugs, perform 40
       hours of community service, and pay all applicable fines and
       costs[.] [S]entences on both cases were to run concurrent.

           On July 11, 2007, [Appellant] was arrested and charged
       with PWID. On November 8, 2007, he was arrested again
       and charged with yet another PWID. On November 23,
       2007, [Appellant] was arrested for a third time and charged
       with PWID and criminal conspiracy. On March 3, 2009, he
       appeared before the Honorable Lisa Rau and pled guilty to
       all of these charges. Pursuant to his negotiated plea, Judge
       Rau sentenced him to an aggregate sentence of 5 to 10
       years [of] state incarceration.

           In addition to these direct violations, [Appellant] tested
       positive for drug use on July 13, July 31, and October 11,
       2007. [Appellant] absconded from supervision after his
       urinalysis in October 2007 and his whereabouts remained
       unknown until he was arrested again for selling drugs in
       November 2007.

           On June 9, 2009, [Appellant] appeared before [the
       Honorable Genece E. Brinkley] for a violation [of probation]
       hearing.      [Judge Brinkley] revoked [Appellant’s] IP
       probation and sentenced him to 5 to 10 years [of] state
       incarceration on both PWID[] [convictions], to run
       concurrent with one another, but consecutive to Judge Rau’s
       sentence. [Judge Brinkley] further sentenced him to 10
       years [of] reporting probation on the conspiracy charge, to
       run consecutive. This resulted in an aggregate sentence of
       5-10 years [of] state incarceration [followed by] 10 years
       [of] reporting probation.

           [Appellant] appealed []his judgment of sentence to
       [this] Court, whereby he challenged the length of his
       sentence and claimed that [the trial court] failed to state
       sufficiently adequate reasons for the sentence and failed to
       order or consider a pre-sentence investigation report. On
       January 19, 2010, [Appellant] filed an [a]pplication to
       [v]acate, requesting that [this] Court remand [the case to
       the trial court] for approval of a nunc pro tunc motion for
       reconsideration[.     On February 8, 2010, this Court]
       dismissed it without prejudice so that he could pursue it
       under the PCRA.


                                   -2-
J-S79023-14


             On October 4, 2010, [Appellant] filed a timely pro se
         petition for relief pursuant to the [PCRA]. On August 30,
         2012, appointed PCRA counsel filed an amended petition.
         On August 12, 2013, the Commonwealth filed a [m]otion to
         [d]ismiss. On December 18, 2013, [the trial court] sent
         [Appellant] a [n]otice [p]ursuant to [Pa.R.Crim.P.] 907,
         indicating that his petition would be dismissed as without
         merit.    [Appellant] did not respond to the [Rule] 907
         [n]otice. On January 16, 2014, [the trial court] dismissed
         [Appellant’s] petition and an order to this effect was filed
         [on] January 21, 2014. On January 25, 2014, [Appellant]
         filed an appeal with [this] Court. On March 11, 2014, PCRA
         counsel filed a [c]oncise [s]tatement of [e]rrors
         [c]omplained of on [a]ppeal.

PCRA Court Opinion, 6/26/2014, at 2-4 (quotations and original brackets

omitted).

       On appeal, Appellant presents two issues for our consideration:

         I.    Was the PCRA court’s dismissal of [] Appellant’s
               ineffective assistance of counsel claims an error
               because counsel failed to present important
               documents at Appellant’s violation of probation
               hearing?

         II.   Was the PCRA court’s dismissal of [] Appellant’s
               ineffective assistance of counsel claims an error
               because counsel failed to file a motion for
               reconsideration that included the documents?

Appellant’s Brief at 4.

       Appellant’s two issues are inter-related and, thus, we will address

them    together.     Appellant   claims   that   counsel   provided   ineffective

representation at the violation of probation hearing for failing to provide the

trial court with documentation “that Appellant had completed drug and

alcohol treatment and community service and had obtained employment.”



                                      -3-
J-S79023-14


Id. at 8.   As a result, Appellant contends that the trial court “believed

Appellant had not completed any of his probation conditions and had feigned

a drug problem to receive a more lenient sentence.” Id. at 9.         However,

Appellant asserts that he “completed [a] [s]elf[-h]elp program, had

completed 40 hours of community service, and had worked as an unloader

at Wal-Mart for at least 5 months.”     Id. at 9-10.      Appellant argues that

defense counsel had no reasonable strategy for failing to provide the

aforementioned documentation because counsel “knew the importance of

completing these requirements and should have known simply telling the

court they were completed was insufficient.”     Id. at 10.    Appellant claims

that he was prejudiced as demonstrated by the trial court’s statements at

the hearing and, in its written opinion, that Appellant “used the system in

order to get treatment in the IP program … when, in fact, [Appellant was]

really a drug dealer[,]” “he never held a ‘real’ job and had only sold drugs

as his source of income[,]” and he “thumbed his nose” at the trial court. Id.

In his second issue presented, Appellant claims that counsel was ineffective

for failing to file a motion for reconsideration attaching the relevant

documentation for the trial court to review. Id. at 11.

      “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014). “The


                                     -4-
J-S79023-14


PCRA court's findings will not be disturbed unless there is no support for the

findings in the certified record.” Id. “In order to obtain relief based on an

ineffective assistance of counsel claim, a petitioner must establish: (1) the

underlying claim has arguable merit; (2) no reasonable basis existed for

counsel's actions or failure to act; and (3) petitioner suffered prejudice as a

result of counsel's error such that there is a reasonable probability that the

result of the proceeding would have been different absent such error.” Id.

(brackets omitted). “Trial counsel is presumed to be effective, and Appellant

bears the burden of pleading and proving each of the three factors by a

preponderance of the evidence.” Id.

      In this case, the PCRA court determined that Appellant failed to

demonstrate he was prejudiced. PCRA Court Opinion, 6/26/2014, at 6. The

PCRA court noted that Appellant “was in direct violation of his prior sentence

after having pled guilty to three new PWID charges.” Id. at 8 (emphasis in

original). One of those PWID convictions occurred within a school zone. Id.

The PCRA court stated that “instead of turning his life around” Appellant

“chose to continue selling drugs.”      Id.     The PCRA court noted that

Appellant’s trial counsel informed the court (acting in its capacity as the

sentencing authority) Appellant had completed community service and a

self-help program, but at no time mentioned Appellant’s employment at

Walmart. Id. However, the PCRA court stated that “simply proving that he

had completed some of the technical conditions of his IP probation would not


                                     -5-
J-S79023-14


have changed [the trial court’s] determination that [Appellant] was in direct

violation of his probation for selling drugs and had only entered the IP

program in order to avoid state incarceration at his original sentencing so

that he could continue selling drugs on the street.” Id. at 8-9.

      Upon review of the record, we conclude that the PCRA court’s findings

are supported by the record and that its legal determinations are consistent

with the law. In particular, we are persuaded that the PCRA court correctly

determined that Appellant was not prejudiced by trial counsel’s actions.

There was no reasonable probability that the introduction of certain

documents regarding Appellant’s compliance with the technical conditions of

his probation would have held sway over the effect of multiple direct

violations on the trial court’s sentencing decision.   While on probation for

PWID, Appellant was arrested and charged with three separate PWID

offenses.   N.T., 6/9/2009, at 5-6.      In one of those criminal matters,

Appellant was selling drugs in a school zone.     Id. at 12.       Appellant was

ultimately convicted of three counts of PWID and sentenced to five to 10

years of imprisonment. Id. at 6-7.      In addition, during that same period

while on probation, Appellant failed three drugs tests for cocaine use and

then absconded from probation supervision until police arrested him for the

third PWID offense. Id. at 7. Furthermore, at the revocation proceeding,

the trial court determined, and Appellant does not dispute, that Appellant

“didn’t pay anything towards fines and costs” as imposed under the terms


                                     -6-
J-S79023-14


his probation.   Id. at 15.    Moreover, despite the lack of documentation

presented, Appellant told the trial court that he had performed community

service and participated in inpatient drug treatment. Id. at 8-9.

      Based upon all of the foregoing, we conclude there was overwhelming

evidence that Appellant was not in compliance with the terms of his

probation.   Accordingly, we agree with the PCRA court, that even if trial

counsel had presented documentation of work, inpatient treatment, and

community service history, there was no reasonable probability that the

result of the proceeding would have been different.        Thus, Appellant has

failed to demonstrate that he was prejudiced by counsel’s actions and,

hence, his first ineffective assistance of counsel claim must fail.

      Furthermore, our Supreme Court has determined that “[w]hether []

counsel [at a violation of probation proceeding] can be deemed ineffective

[for failing to file a motion to reconsider], [] depends upon whether [the

petitioner] has proven that a motion to reconsider sentence, if filed, would

have led to a different and more favorable outcome at [the violation of

probation] sentencing.” Commonwealth v. Reaves, 923 A.2d 1119, 1131-

1132 (Pa. 2007). Again, based upon the overwhelming evidence presented

to the trial court at the revocation of probation hearing, that Appellant was

in both direct and technical violation of his probation by continuing to sell

and use narcotics, Appellant has failed to prove that a motion to reconsider




                                      -7-
J-S79023-14


with supporting documentation would have been successful.   Accordingly,

Appellant’s second issue fails.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




                                  -8-
