J-S08012-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
OMAR REEVE,                                :
                                           :
                   Appellant               : No. 1401 EDA 2014

                 Appeal from the PCRA Order April 24, 2014,
                Court of Common Pleas, Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0003260-2008

BEFORE: DONOHUE, WECHT and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED FEBRUARY 27, 2015

       Appellant, Omar Reeve (“Reeve”), appeals from the order entered on

April 24, 2014 by the Court of Common Pleas, Philadelphia County,

dismissing his petition for relief pursuant to the Post-Conviction Relief Act

(“PCRA”).1    For the reasons set forth herein, we affirm the PCRA court’s

order.

       The facts and procedural history are as follows:

             On February 8th of 2008 at around 1:40 AM the
             defendant, Omar Reeve, was operating a blue green
             Buick LaSabre in the area of 1400 North Ithan
             Street. Nafas Dekeyser [] was a passenger in the
             car. Officers took note of the Buick because it fit the
             flash for a vehicle taken twenty minutes prior in a
             carjacking. [Reeve] pulled over the Buick in front of
             1409 North Ithan Street. Both he and passenger
             quickly exited the car. Officers saw [Reeve] throw a
             black object into the yard area of 1409 North Ithan


1
    42 Pa.C.S.A. §§ 9541-46.
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            and heard it make a metal clanking sound when it hit
            the concrete.    Officers placed both [Reeve] and
            Dekeyser into their vehicle. [Reeve] got out [of the
            police vehicle] and began to run away. He was
            eventually apprehended by another officer … and
            was found to be wearing a bulletproof vest. Officer
            Anderson then recovered a black semiautomatic
            firearm thrown by [Reeve] in front of 1409 North
            Ithan Street which the gun was found to be in stolen
            status. A search warrant was then executed on the
            Buick and officers recovered a black Ruger from
            under the drive[r’s] seat.      [Reeve] ha[d] prior
            convictions which [made] him ineligible to possess a
            firearm under [Pa.C.S.A. §] 6105. That particular CP
            number of that case would be CP-51-CR-0511121 –
            2001, a prior guilty plea to possession with intent to
            deliver.

N.T., 7/8/11, at 12-13.

      Reeve was charged with several offenses including a violation of the

Uniform Firearms Act – persons not to possess a firearm (“VUFA”), 18

Pa.C.S.A. § 6105(a)(1), and possession of an instrument of crime (“PIC”),

18 Pa.C.S.A. § 907(a).2     After posting bail, Reeve was arrested for a

separate incident (deemed by the trial court, the “Drug House Case”), and

was convicted of possession with intent to deliver (“PWID”), VUFA, PIC, and

criminal conspiracy.3


2
  Reeve was also charged with escape, 18 Pa.C.S.A. § 5121(a), firearms not
to be carried without a license, 18 Pa.C.S.A. § 6106(a)(1), carrying firearms
on public streets or public property in Philadelphia, 18 Pa.C.S.A. § 6108, and
resisting arrest, 18 Pa.C.S.A. § 5104. The Commonwealth eventually nolle
prossed these additional charges. See N.T., 7/8/11, at 6.
3
  While the specifics of the incident and the charges are not in the record,
the trial court provided the following description of the event and
subsequent trial:


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      On July 8, 2011, Reeve appeared before the trial court on the charges

in the instant case and entered an open guilty plea to the VUFA and PIC

charges.    Prior to sentencing, this case and the Drug House Case were

consolidated pursuant to Rule 701 of the Pennsylvania Rules of Criminal

Procedure, which “enable[s] the court to sentence the defendant on all

outstanding charges within the jurisdiction of the sentencing court at one

time.” Pa.R.Crim.P. 701, cmt.

      On August 22, 2011, the trial court held a sentencing hearing on both

cases.     The trial court sentenced Reeve to ten to twenty years of

incarceration on the PWID charge and related weapons offenses stemming

from the Drug House Case. With regard to the case presently before this

Court, the trial court sentenced Reeve to five to ten years on the VUFA

charge, to be served concurrently with the Drug House Case sentence. The

trial court, however, also imposed a consecutive two and one half to five



            That case is docketed at CP-51-CR-0011166-2010
            and was tried before a jury from February 1, 2011
            through March 1, 2011. In that case, [Reeve] and
            co-defendants were observed outside with a gun.
            After seeing the police, [Reeve] and his co-
            defendants fled into a nearby house, locked the
            door, and turned off all of the lights. The police
            pursued and arrested [Reeve] and co-defendants.
            Following execution of a search warrant, police found
            [Reeve’s] gun, a large amount of narcotics, drug
            paraphernalia, seven firearms with ammunition, over
            $2000, and mail in [Reeve’s] name.

Trial Court Opinion, 8/15/14, at 2 n.1.


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years sentence on the non-merging PIC offense because of Reeve’s

participation in the Drug House Case, which occurred while he was on bail

for the instant matter.

      On June 28, 2012, Reeve filed a timely pro se PCRA petition alleging

that his trial counsel provided ineffective assistance by recommending that

he reject a negotiated plea bargain from the Commonwealth that would have

resulted in five to ten years of incarceration. Appointed PCRA counsel filed

an amended petition on October 16, 2013 but failed to provide any

supporting evidence.      On February 12, 2014, the Commonwealth filed a

motion to dismiss the petition.

      On March 24, 2014, the trial court sent Reeve a notice of intent to

dismiss the petition pursuant to Rule 907 of the Rules of Criminal Procedure.

The   trial   court   subsequently   dismissed   Reeve’s   petition   without   an

evidentiary hearing on April 24, 2014.

      On May 6, 2014, Reeve filed a timely notice of appeal to this Court.

On appeal, Reeve raises one issue for our review:

              1. Did the [PCRA] court err in denying [Reeve] an
              evidentiary hearing when [he] alleged the ineffective
              assistance of trial defense counsel?

Reeve’s Brief at 2.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court's findings of fact, and whether the PCRA

court's determination is free of legal error.    Commonwealth v. Phillips,



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31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry,

877 A.2d 479, 482 (Pa. Super. 2005), appeal denied, 42 A.3d 1059 (Pa.

2012)). A PCRA petitioner must establish the claim by a preponderance of

the evidence. Commonwealth v. Gibson, 925 A.2d 167, 169 (Pa. 2007).

      In his brief, Reeve first argues that trial counsel provided ineffective

assistance by advising him to reject an offer by the Commonwealth to plead

guilty in return for a sentence of five to ten years of incarceration. Reeve’s

Brief at 6.    Reeve asserts that counsel’s advice to turn down the

Commonwealth’s offer and instead enter an open guilty plea, resulted in a

more severe sentence of seven and one half to fifteen years in prison. Id.

Reeve contends that he was prejudiced by counsel’s ineffectiveness because

it resulted in a more severe sentence. Id. at 6-7.

      “Our longstanding test for ineffective assistance of counsel derives

from the standard set by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984).” Commonwealth v. Clark, 961 A.2d

80, 85 (Pa. 2008). The test for ineffective assistance of counsel requires the

petitioner to meet a three-prong test: (1) underlying the petitioner’s

allegation of ineffectiveness, there is a claim of arguable merit; (2)

petitioner’s counsel had no reasonable strategic basis for proceeding as he

did; and (3) the petitioner was prejudiced by counsel’s ineffectiveness. Id.

Failure to meet any one of the three prongs is fatal to petitioner’s claim of

ineffectiveness. Id.



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      The trial court in this instance determined that Reeve failed to satisfy

all three prongs to establish ineffective assistance of counsel:

            Here, [Reeve] cannot prove he was prejudiced by
            the advice of his trial lawyer, as this [c]ourt affirms
            the Section 701 consolidation achieved mitigation
            where his 12 ½ to 25 year aggregate sentence was
            well below available statutory maximums, and this
            Court would not have accepted a completely
            concurrent sentence on both cases, even if the
            Commonwealth had agreed and for the reasons
            explained above.

Trial Court Opinion, 8/15/14, at 4. After reviewing the record, we agree.

      In Commonwealth v. Chazin, 873 A.2d 732 (Pa. Super. 2005), a

PCRA petitioner alleged that his trial counsel rendered ineffective assistance

by failing “to advise him adequately on an earlier plea offer that the

Commonwealth tendered[.]” Id. at 733. A panel of this Court determined

that the petitioner could not establish prejudice because he could not

demonstrate that the trial court would have accepted the plea bargain. Id.

at 737-38. In reaching this determination, we stated:

            “The Pennsylvania Rules of Criminal Procedure grant
            the trial court broad discretion in the acceptance and
            rejection of plea agreements.” There is no absolute
            right to have a guilty plea accepted. Accordingly,
            our Courts have reaffirmed that “[w]hile the
            Commonwealth and a criminal defendant are free to
            enter into an agreement that the parties deem
            fitting, the terms of a plea agreement are not
            binding upon the court. Rather the court may reject
            those terms if the court believes the terms do not
            serve justice.” As these holdings make apparent,
            the Commonwealth’s offer of plea, even if accepted
            by the defendant unequivocally, does not dispose of



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            a criminal prosecution; indeed, the plea bargain is of
            no moment until accepted by the trial court.
            Consequently, in the context of Chazin’s IAC claim,
            prejudice, i.e., the “reasonable probability that, but
            for the act or omission challenged, the outcome of
            the proceeding would have been different,” cannot
            be established.

Id. at 737 (internal citations omitted). The Chazin court concluded that

“[w]ithout evidence that the result of the plea bargain process would have

been different had he been able to accept the Commonwealth’s original

offer, [the petitioner] necessarily fails to satisfy the prejudice prong requisite

to a finding of [ineffective assistance of counsel].” Id. at 737-38.

      In this case, similar to the petitioner in Chazin, Reeve failed to

establish that the trial court would have accepted the plea agreement of five

to ten years of incarceration.      To the contrary, our review of the record

reveals that the trial court would not have accepted the plea agreement, as

the trial court specifically stated that

            [Reeve’s] implied assumption that this [c]ourt would
            have agreed to a concurrent sentence totally wiping
            out punishment for the VUFA-PIC is optimistic and
            misreads the gravity of his situation at sentencing.
            As it happens, trial counsel’s advice to him was not
            off the mark.        By entering a Section 701
            consolidation, [Reeve] achieved significant mitigation
            considering what might have been[.]

Trial Court Opinion, 8/15/14, at 4.

      We therefore conclude that Reeve failed to establish that the outcome

of the proceeding would have been different if he would have accepted the




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Commonwealth’s plea agreement. Accordingly, Reeve has not satisfied the

prejudice prong of the Strickland test, which is fatal to his claim of

ineffectiveness. See Clark, 961 A.2d at 85. Reeve’s ineffective assistance

of counsel claim is without merit.

      We note that Reeve also argues that the trial court erred by denying

him an evidentiary hearing. It is well settled, however, that

            [t]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. It is within the
            PCRA court’s discretion to decline to hold a hearing if
            the petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. It is
            the responsibility of the reviewing court on appeal to
            examine each issue raised in the PCRA petition in
            light of the record certified before it in order to
            determine if the PCRA court erred in its
            determination that there was no genuine issues of
            material fact in controversy and in denying relief
            without conducting an evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (quoting

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)).

      Given our disposition of Reeve’s claim of ineffective assistance of

counsel, we conclude that there was no genuine issue of material fact in

controversy.    Accordingly, the PCRA court did not err in denying an

evidentiary hearing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/27/2015




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