J-S51026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT BRENZENGER

                            Appellant                  No. 46 EDA 2016


                 Appeal from the PCRA Order December 1, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014083-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED JUNE 22, 2016

        Robert Brenzenger appeals, pro se, from the trial court’s order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        On March 15, 2013, Brenzenger entered a negotiated guilty plea1 to

two counts of homicide by vehicle while driving under the influence (DUI)2


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The Commonwealth agreed to nolle prosse charges for simple assault,
recklessly endangering another person, involuntary manslaughter, and
homicide by vehicle. The Commonwealth also agreed to recommend a
specific sentence of not less than seven nor more than fourteen years in
prison. See N.T. Guilty Plea, 3/15/13, at 12.
2
    75 Pa.C.S. § 3735(A).
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and DUI.3 On that same date, Brenzenger was sentenced to two consecutive

terms of 3½ to 7 years’ imprisonment for the homicide by vehicle (DUI)

charges and a concurrent term of 3 to 6 months’ imprisonment for the DUI.

No post-sentence motions or direct appeal were filed.

        On February 25, 2014, Brenzenger filed a timely pro se PCRA petition

alleging that plea counsel was ineffective for failing to file a post-sentence

motion to reconsider his sentence where he believed his sentence was

“excessive and unduly harsh.” Pro Se PCRA Petition, 2/25/14, at 3. Counsel

was appointed to represent Brenzenger.           However, on June 25, 2015,

appointed counsel filed a petition to withdraw, pursuant to Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988), asserting that in his professional

opinion the issue raised in defendant’s pro se PCRA petition was without

arguable merit and that there were no other issues of arguable merit that

could be raised in an amended, counseled petition.              After issuing a

Pa.R.Crim.P. 907 notice of its intent to dismiss his petition, the court

ultimately dismissed Brenzenger’s petition on December 1, 2015, and

granted counsel’s request to withdraw. This timely pro se appeal follows in

which Brenzenger presents the following issue for our consideration:

        Whether because counsel failed to file a Post Sentence Motion to
        Reconsider the sentence, Appellant is entitled to have his right to



____________________________________________


3
    75 Pa.C.S. § 3732(A).



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         file Post Sentence Motions restored, and the PCRA court erred in
         failing to reinstate them?4

Appellant’s Brief, at 3.

         The standard of review of an order denying a PCRA petition is whether

that determination is supported by the evidence of record and is free of legal

error.    The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record.         Commonwealth v.

Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).           Moreover, it is well

settled that when a defendant has entered a negotiated guilty plea, his “plea

. . . amounts to a waiver of all defects and defenses except those concerning

the jurisdiction of the court, the legality of the sentence, and the validity of

the guilty plea.”     Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa.

Super. 1991).

         The record reveals that there was a factual basis for Brenzenger’s

plea.      N.T. Guilty Plea Hearing, 3/15/13, at 14-18.        Moreover, both

Brenzenger’s written and oral colloquies demonstrate that his guilty plea was

entered knowingly, intelligently and voluntarily.   Id. at 14 (“Is that a free
____________________________________________


4
  With respect to claims of ineffective assistance of counsel, we begin with
the presumption that counsel is effective. Commonwealth v. Spotz, 47
A.3d 63, 76 (Pa. 2012). To prevail on an ineffectiveness claim, a petitioner
must plead and prove, by a preponderance of the evidence, three elements:
(1) the underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his or her action or inaction; and (3) the petitioner
suffered prejudice because of counsel’s action or inaction. Id. (citation
omitted).




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and voluntary decision on your part.      Yes.”); Written Guilty Plea Colloquy,

3/15/13.    See Commonwealth v. Reid, 117 A.3d 777, 783 (entry of

negotiated plea is strong indicator of voluntariness of plea; law does not

require that defendant be pleased with outcome of decision to enter guilty

plea, but just that decision was knowingly, voluntarily and intelligently

made).

     To    the   extent   that   Brenzenger’s   underlying   claim   attacks   the

discretionary aspect of his sentence, we recognize that the trial court

imposed the sentence that Brenzenger negotiated with the Commonwealth.

He may not now seek discretionary review of that negotiated sentence.

See Commonwealth v. O'Malley, 957 A.2d 1265, 1267 (Pa. Super. 2008).

     Because Brenzenger’s underlying claim has no arguable merit, counsel

cannot be deemed ineffective for failing to file a post-sentence motion to

reconsider his sentence based on those claims. Spotz, supra.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016




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