J-S15015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

SHANE D. ROOF

                            Appellant               No. 1885 MDA 2013


                Appeal from the PCRA Order September 18, 2013
               In the Court of Common Pleas of Schuylkill County
              Criminal Division at No(s): CP-54-CR-0001823-2009


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                             FILED MAY 01, 2015

       Shane D. Roof appeals from the order, entered in the Court of

Common Pleas of Schuylkill County, dismissing his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After

review, we affirm.

       On November 5, 2010, Roof was sentenced to an aggregate term of 47

to 94 years’ imprisonment after entering a partial negotiated guilty plea 1 to

third-degree murder, conspiracy and robbery.     The charges stem from an

incident in which Roof and three co-conspirators beat Anthony Locasio to



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1
  Under the plea agreement, Roof’s sentence for third-degree murder was
set at 20 to 40 years’ imprisonment. His penalties as to the remaining
counts were left to the discretion of the sentencing judge.
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death in a remote, wooded area, stripping him of his clothes, and robbing

him of personal property.

      One of Roof’s co-conspirators, Curtis Todd Foose, was also sentenced

on November 5, 2010, to 47½ to 95 years’ incarceration.      Roof’s other two

co-conspirators, Jeffery Gombert and Andrew Tutko, were sentenced on

November 18, 2010.          Both Gombert and Tutko cooperated with the

Commonwealth from the outset.         They signed written memoranda of

cooperation and later entered into negotiated plea agreements with the

Commonwealth. Gombert was ultimately sentenced to an aggregate term of

20 to 40 years’ incarceration; Tutko was sentenced to 25 to 50 years in

prison.

      Roof did not file post-sentence motions. On December 2, 2010, Roof

filed a notice of appeal to this Court.   On appeal, Roof raised two claims

implicating the discretionary aspects of his sentence. However, because he

failed to file post-sentence motions, this Court concluded that his claims

were waived for failure to preserve them in the trial court. While his appeal

to this Court was pending, Roof filed a PCRA petition on March 8, 2011. The

trial court dismissed the PCRA petition for a lack of jurisdiction. After this

Court affirmed his judgment of sentence, Roof filed the instant timely PCRA

petition on August 7, 2012.

      The PCRA court conducted a hearing on April 22, 2013, at which Roof,

various family members, his trial counsel, Kent W. Watkins, Esquire, and

then-District Attorney, now-Judge James P. Goodman testified.       The court

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denied post-conviction relief by order dated September 18, 2013, and this

timely appeal followed.

       On appeal, Roof raises the following issues:2

              1.    Was trial counsel ineffective for failing to file a
              motion to reconsider Roof’s sentence nunc pro tunc, in
              light of the lesser sentences received by his co-
              defendants?

              2.   Was Roof’s guilty plea unlawfully induced by trial
              counsel’s failure to provide and discuss discovery materials
              with him and properly advise him as to potential
              sentences?

              3.    Did the lower court abuse its discretion in imposing
              disparate sentences between Roof and his co-defendants?

Brief of Appellant, at 7.

       Our standard and scope of review for the denial of a PCRA petition is

well-settled.    We review the PCRA court’s findings of fact to determine

whether they are supported by the record, and review its conclusions of law

to determine whether they are free from legal error.            Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our 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. Id.

       Roof’s    first   two   claims     raise   issues   implicating   the   alleged

ineffectiveness of plea counsel. To prevail on a claim of ineffectiveness of

counsel, a petitioner must demonstrate:              (1) the underlying claim has
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2
  We have rephrased, reordered and combined certain of Roof’s issues for
purposes of clarity and ease of disposition.



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arguable merit; (2) counsel had no reasonable basis for the course of action

or inaction chosen; and (3) counsel’s action or inaction prejudiced the

petitioner. See Strickland v. Washington, 466 U.S. 668 (1984).

       A failure to satisfy any prong of the ineffectiveness test requires
       rejection of the claim. The burden of proving ineffectiveness
       rests with the Appellant. To sustain a claim of ineffectiveness,
       Appellant must prove that the strategy employed by trial counsel
       was so unreasonable that no competent lawyer would have
       chosen that course of conduct. Trial counsel will not be deemed
       ineffective for failing to pursue a meritless claim.

Commonwealth v. Rega, 933 A.2d 997, 1018-19 (Pa. 2007) (citations and

quotation marks omitted).

       Roof first asserts that counsel was ineffective for failure to file a

motion to reconsider sentence nunc pro tunc once his co-defendants were

sentenced.3      Although, as the PCRA court found, counsel may have lacked

a reasonable basis for his failure to file that motion, his inaction is ultimately

inconsequential, as Roof fails to satisfy the other elements of his ineffective

counsel claim.     See id.     Specifically, Roof’s scant argument on this issue

does not address either the “arguable merit” or “prejudice” prongs of the

ineffectiveness test.     Rather, Roof appears to be under the misimpression

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3
  Roof’s co-defendants were sentenced on November 18, 2010, thirteen days
after Roof’s sentencing, and outside the 10-day window to file a motion to
reconsider. Pa.R.Crim.P. 720. Because of this timing issue, Roof’s only
opportunity to file a motion to reconsider based on the disparity in sentences
between him and his co-defendants would have been via a nunc pro tunc
motion.




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that, because counsel’s conduct was unreasonable, he is automatically

entitled to relief.    A failure to satisfy any prong of the ineffectiveness test

requires rejection of the claim. See id. Accordingly, Roof is entitled to no

relief.

          Next, Roof alleges that his guilty plea was unlawfully induced by trial

counsel, who failed to provide and discuss discovery materials with him and

improperly advised him that he would face the death penalty if he went to

trial. This claim is meritless.

          With regard to discovery materials, the credible testimony at the PCRA

hearing belies Roof’s claim that counsel failed to provide him with and advise

him as to discovery.          Former District Attorney, now Judge James P.

Goodman testified that he met with Roof and his counsel for a plea

negotiation and, during that meeting, they “went over the evidence pretty

extensively[.]”     N.T. PCRA Hearing, 4/22/13, at 45.      Roof’s plea counsel,

Kent Watkins, Esquire, testified that he was aware that Roof was unable to

read well, so when he received discovery materials he “read [Roof] anything

that . . . dealt with the case.” Id. at 55. He testified:

          I went over the preliminary hearing transcript to get his take on
          everythying everybody said plus read for any contradictions in
          the discovery and talked to [Roof] about issues in the discovery.
          And he contradicted a lot of it and, you know, and I took note of
          that.

Id. at 56. He testified further as follows:

          [ATTORNEY WATKINS]: I met with Mr. Roof on a lot of
          occasions because we had got a lot of discovery. And I’d ask

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      him what he thought. And he wanted to go to trial.             So I
      prepared for trial. So that’s all I did.

      [ATTORNEY ZELONIS]: And you were here when Mr. Roof
      testified. He said you met with him only a few times. That’s not
      true?

      A:    No, because there were a lot of things to go over that
      came in piecemeal even especially, like, that picture that came
      in from the prison. And there may have been some stuff from
      snitches, reports. There were the proffers made by at least one
      or two of the codefendants. And then there were . . . changes
      in the offer I believe, in one or two of them. So we went over a
      bunch of this stuff. But again, I would read it to him because I
      knew he had trouble reading.

      Q:    And you actually read it to him?      You’d go over to the
      prison?

      A:       Yes.

Id. at 59-60.

      Roof also claims that counsel misled him to believe he would be

subject to the death penalty if he did not enter a plea. This allegation is also

belied by the record. At the PCRA hearing, Judge Goodman testified that, at

the time Roof entered his plea, he was not facing the death penalty because

the district attorney’s office had not filed a notice of aggravating factors at

the time of Roof’s arraignment several months earlier.         See id. at 47.

Attorney Watkins testified that, after Roof was arraigned, he told Roof that

“it’s no longer [a] death penalty [case]; it’s a life sentence that you’re

looking at.”     Id. at 59.   The following exchange also took place between

Attorney Watkins and counsel for the Commonwealth at the PCRA hearing:

      Q:   But you were clear with your client, Mr. Roof, that the
      death penalty was not on the table?


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       A:     Correct.

Id. at 71.

       Based on the foregoing testimony, which the PCRA court deemed

credible, it is clear that: (1) Roof was advised by counsel that he would not

be subject to the death penalty prior to entering his plea and (2) counsel

thoroughly reviewed discovery materials with Roof.        Accordingly, Roof’s

claim that his plea was unlawfully induced by plea counsel is meritless.

       Finally, Roof claims that the trial court abused its discretion in

imposing disparate sentences between Roof and his co-defendants.           This

claim, which is not couched in terms of counsel’s ineffectiveness, implicates

the discretionary aspects of Roof’s sentence. Such claims are not cognizable

under the PCRA, which provides only for challenges to sentences that have

been imposed in excess of the lawful maximum. Commonwealth v.

Friend, 896 A.2d 607, 616 n.15 (Pa. Super. 2006).         Accordingly, Roof is

entitled to no relief on this claim.4




____________________________________________


4
  As set forth supra, Roof failed to establish that counsel was ineffective for
failing to preserve his discretionary aspects of sentencing claim on direct
appeal by not filing a motion to reconsider sentence nunc pro tunc.



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     Order affirmed.

     Judge Wecht joins the majority.

     Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2015




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