J-S34044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

TRAVIS ELLIOT DARROW

                        Appellant                  No. 1415 MDA 2015


                 Appeal from the PCRA Order July 14, 2015
             In the Court of Common Pleas of Wyoming County
            Criminal Division at No(s): CP-66-CR-0000055-2013


BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED MAY 17, 2016

     Travis Darrow appeals from an order denying his petition for relief

under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. We affirm.

     Darrow repeatedly assaulted his 16-month-old daughter over a 4-

month period, causing this helpless infant to suffer a broken arm and bruises

to her forehead, cheek, abdomen, left armpit, left thigh and lower left back

region.   Darrow was charged with aggravated assault under 18 Pa.C.S. §

2702(a)(1), graded as a first degree felony, and other offenses. On April 5,

2013, pursuant to a negotiated plea agreement, Darrow pled guilty to one

count of aggravated assault in return for the Commonwealth’s agreement to

withdraw the other charges.




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     The Commonwealth served notice of its intent to seek a mandatory

minimum sentence of five years’ imprisonment under 42 Pa.C.S. § 9718,

because the victim was under the age of 13.

     At the time of sentencing on May 8, 2013, Darrow’s prior record score

was 0. Absent application of section 9718, the Sentencing Guidelines called

for a standard minimum range sentence of 36-54 months and an aggravated

minimum range sentence of up to 66 months. The statutory maximum for a

first degree felony was 20 years’ imprisonment, or 240 months.      See 18

Pa.C.S. § 1103. The court sentenced Darrow to a minimum of 66 months’

imprisonment, six months more than the mandatory minimum, and a

maximum of 180 months’ imprisonment. The court expressly stated on the

sentencing order that the sentence was a mandatory minimum.

     Darrow did not file post-sentence motions or a direct appeal. On June

17, 2013, ten days after his direct appeal period expired, the United States

Supreme Court held in Alleyne v. United States, – U.S. –, 133 S.Ct. 2151

(2013), that the Sixth Amendment prohibits imposition of a mandatory

minimum sentence based on a fact which is not submitted to the jury or

proven beyond a reasonable doubt.

     On April 28, 2014, Darrow filed a timely PCRA petition alleging his

mandatory minimum sentence was illegal under Alleyne. Through counsel,

Darrow subsequently filed an amended PCRA petition, again claiming that his

sentence was unlawful under Alleyne.       In addition, Darrow’s amended


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petition claimed that guilty plea counsel was ineffective for failing to file

post-sentence motions or a direct appeal seeking relief (1) under Alleyne

and (2) on the ground that his sentence in the aggravated range of the

guidelines, above the mandatory minimum, was excessive.

     The PCRA court convened a hearing in which guilty plea counsel and

Darrow testified. The court then ordered Darrow to file a post-hearing brief.

Darrow’s counsel filed a brief thirty days after the hearing.    Among other

arguments, the brief raised an issue that had not been mentioned in the

original or amended PCRA petition: guilty plea counsel’s ineffectiveness for

failing to consult with Darrow so that Darrow could make an informed

decision about whether to appeal.      Brief In Support Of Amended PCRA

Motion, at 9-10.

     On July 14, 2015, the court denied Darrow’s amended PCRA petition.

Darrow filed a timely appeal, and both Darrow and the trial court complied

with Pa.R.A.P. 1925.

     Darrow raises two issues in this appeal:

     1. Did the trial court err in failing to conclude that [guilty plea]
     counsel rendered ineffective assistance of counsel in failing to
     file post-sentence motions challenging the legality and
     discretionary aspect of [Darrow’s] sentence and, thereby, failing
     to preserve such a challenge and depriving [Darrow] of a direct
     appeal[?]

     2. Did the trial court err in failing to conclude that [guilty plea]
     counsel rendered ineffective assistance of counsel in failing to
     file an appeal to the Superior Court challenging [Darrow’s]
     sentence?


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Brief For Appellant, at 3.

      In reviewing the denial of PCRA relief, we examine whether the PCRA

court's determination is supported by the record and free of legal error.

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.2014).               “The scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014).

      Both of Darrow’s issues on appeal raise claims of ineffective assistance

of counsel. We address them together.

      We presume that guilty plea counsel was effective unless the PCRA

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,

1177 (Pa.1999).      To succeed on a claim of ineffective assistance, the

petitioner must plead and prove that (1) the underlying claim is of arguable

merit; (2) counsel’s performance lacked a reasonable basis; and (3)

counsel’s ineffectiveness caused the petitioner prejudice.        42 Pa.C.S. §

9543(a)(2)(ii); Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa.2003).

The petitioner bears the burden of proving each of these elements, and his

“failure to satisfy any prong of the ineffectiveness test requires rejection of

the claim of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409,

419 (Pa.2009).

      Darrow asserts that guilty plea counsel was ineffective for failing to file

post-sentence motions or a direct appeal challenging the legality of his

sentence under Alleyne and the excessiveness of his sentence.          Before a


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court will find counsel ineffective for failing to file a direct appeal, the

petitioner must prove that he requested an appeal and that counsel

disregarded that request without justification.      See Commonwealth v.

Lantzy, 736 A.2d 564, 572 (Pa.1999); Commonwealth v. Knighten, 742

A.2d 679, 682 (Pa.Super.1999).        Similarly, before we will find counsel

ineffective for failing to file post-sentence motions, the petitioner must prove

that he requested counsel to file post-sentence motions but that counsel

disregarded his request.    See Commonwealth v. Velasquez, 563 A.2d

1273, 1275 (Pa.Super.1989) (“[c]laims of ineffectiveness are not sufficient

when presented in a vacuum …; nor can counsel be deemed ineffective for

failing to do what he was not requested to do”).

      Here, the PCRA court found that it advised Darrow during sentencing

of his right to file post-sentence motions and an appeal, but nevertheless,

Darrow did not request counsel to file any post-sentence motions or appeal.

Pa.R.A.P. 1925(a) Opinion, at 3.     The record confirms this finding.     Both

guilty plea counsel and Darrow testified during the PCRA hearing that

Darrow did not ask counsel to file post-sentence motions or an appeal.

Thus, Darrow’s argument that counsel was ineffective for failing to file post-

sentence motions or an appeal is devoid of merit.

      Towards the end of his appellate brief, Darrow argues that guilty plea

counsel was ineffective for failing to consult with Darrow as to whether to

appeal, thus preventing Darrow from making an informed decision on this




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issue. Brief For Appellant, at 19-20. Darrow waived this issue by failing to

plead it in his original or amended PCRA petitions.

      “PCRA claims are more civil than criminal in nature, which places the

burden of moving the case forward on the party in the plaintiff's position,

who in this context is the PCRA petitioner.” Commonwealth v. Smith, 121

A.3d 1049, 1054 (Pa.Super.2015).      Thus, the PCRA petitioner must plead

and prove all grounds for relief. See 42 Pa.C.S. § 9543(a) (requiring PCRA

petitioner to “plead and prove” grounds for relief); see also Pa.R.Crim.P.

902(B) (“[f]ailure to state such a ground [for relief] in the [PCRA] petition

shall preclude the defendant from raising that ground in any proceeding for

post-conviction collateral relief”). The petitioner must obtain leave of court

before amending his petition to add new grounds for relief.              See

Pa.R.Crim.P. 905(A). The petitioner waives any issue that he fails to raise in

compliance with these rules. See Commonwealth v. Elliott, 80 A.3d 415,

430 (Pa.2013) (in capital murder case, defendant waived for postconviction

and appellate review issue as to whether trial counsel rendered ineffective

assistance by failing to meet with him personally prior to trial or otherwise

prepare for trial; defendant did not allege in PCRA petition allegation that

trial counsel was ineffective for failing to meet with him prior to trial, and

defendant did not obtain permission to amend his petition to include issue);

Commonwealth v. Porter, 35 A.3d 4, 14 (Pa.2012) (petitioner may not

raise new claims by merely supplementing pending PCRA petition without

court authorization, because to do so would “wrongly subvert the time

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limitation and serial petition restrictions of the PCRA”); Commonwealth v.

Rigg, 84 A.3d 1080, 1084 (Pa.Super.2014) (“Appellant's underlying trial

counsel ineffectiveness claim is waived for failing to raise it before the PCRA

court in his pro se petition”).

      As stated above, Darrow claimed in his amended PCRA petition that

guilty plea counsel was ineffective for failing to file post-trial motions or an

appeal.   Darrow did not claim in this petition, however, that guilty plea

counsel was ineffective for failing to consult with him about whether to file

these papers.    The two claims are not the same.      In Commonwealth v.

Touw, 781 A.2d 1250 (Pa.Super.2001), the petitioner alleged that counsel

was ineffective for failing to consult with him about whether to file an

appeal.   We held that the attorney’s failure to consult with the defendant

“does not fit” within Lantzy’s rule that counsel is ineffective for disregarding

the defendant’s request to file a direct appeal.    Touw, 781 A.2d at 1253.

Thus, Darrow’s claim in his amended PCRA petition that counsel failed to file

post-trial motions or an appeal was not equivalent to a claim that counsel

failed to consult with Darrow about whether to appeal.         Nor did Darrow

request leave to amend his PCRA petition to add a failure-to-consult claim;

he simply inserted this claim into a post-hearing memorandum without

permission. Consequently, he has waived this claim. See Elliott, Porter,




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supra (petitioner cannot add new PCRA claims without first obtaining leave

of court to amend petition).1

       For these reasons, we affirm the order denying PCRA relief to Darrow.2
____________________________________________


1
  Even if Darrow did not waive this issue, he failed to demonstrate during his
PCRA hearing that guilty plea counsel failed to consult with him about
whether to appeal. Guilty plea counsel first testified that Darrow did not ask
him to appeal but then stated that he did not have any recollection of the
day of sentencing. N.T., 5/22/15, at 6. Neither PCRA counsel nor the
Commonwealth asked guilty plea counsel whether he actually consulted with
Darrow about whether to appeal. Darrow testified that he did not ask guilty
plea counsel to appeal because he was “afraid” to ask. Id. at 32, 38-39.
But once again, neither PCRA counsel nor the Commonwealth asked Darrow
whether guilty plea counsel actually consulted with him about whether to
appeal. Thus, Darrow failed to meet his burden of proving that guilty plea
counsel was ineffective for failing to fulfill his duty of consultation.
2
  For the sake of completeness, we note that Darrow’s original and PCRA
petitions challenged the legality of his sentence under Alleyne, a separate
issue than a claim that counsel was ineffective. Compare 42 Pa.C.S. §
9543(a)(2)(ii) (PCRA petition may include claims of ineffective assistance)
with 42 Pa.C.S. § 9543(a)(2)(vii) (PCRA petition may challenge “the
imposition of a sentence greater than the lawful maximum”). In this appeal,
however, Darrow abandoned his challenge to the legality of his sentence.

Even if Darrow had continued to mount a section 9543(a)(2)(vii) challenge
to the legality of his sentence in this appeal, it would not have helped him.
This Court has declined to give Alleyne retroactive effect to cases on timely
collateral review when the defendant's judgment of sentence became final
before Alleyne was decided. See Commonwealth v. Riggle, 119 A.3d
1058 (Pa.Super.2015). Darrow’s judgment of sentence became final on
June 7, 2013, the expiration date for his direct appeal, ten days before the
Supreme Court issued its decision in Alleyne. See 42 Pa.C.S. 9545(b)(3)
(for purposes of PCRA, “a judgment becomes final at the conclusion of direct
review … or at the expiration of time for seeking the review”). Thus,
Alleyne does not apply retroactively to his case. See Riggle, supra;
compare Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super.2015)
(defendant entitled to resentencing under Alleyne where (1) he was
sentenced 12 days before issuance of Alleyne, (2) his direct appeal period
(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016




                       _______________________
(Footnote Continued)

expired 18 days after issuance of Alleyne, (3) defendant did not take direct
appeal, but (4) defendant filed timely PCRA petition within one year after
date of sentence).



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