J-A02024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GARY HAIRSTON                              :
                                               :
                      Appellant                :   No. 258 WDA 2017

                   Appeal from the PCRA Order July 15, 2016
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0015261-2008


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.:                                 FILED APRIL 06, 2018

        Appellant, Gary Hairston, was convicted by a jury of possession of a

controlled substance with intent to deliver (PWID) and possession of a

controlled substance1 on July 17, 2012. After unsuccessful direct appeals,

Appellant obtained collateral relief under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546 when the trial court ordered that he be

resentenced. Pursuant to that order, the court, on July 15, 2016, directed

that Appellant serve five to 15 years of imprisonment for his convictions and

denied his remaining claims for collateral relief.2      In this appeal, Appellant
____________________________________________


1   35 P.S. §§ 780–113(a)(30) and 780–113(a)(16), respectively.

2  Although we use both the terms “trial court” and “PCRA court” throughout
this memorandum, the same judge presided over Appellant’s trial and PCRA
review.
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challenges the court’s determinations in its July 15, 2016 order.              After

careful consideration, we affirm Appellant’s judgment of sentence, as well as

the denial of Appellant’s claims for collateral relief.

       We briefly summarize the facts and procedural history of this case as

follows. On July 17, 2012, a jury convicted Appellant of the aforementioned

crimes.3 On October 4, 2012, the trial court sentenced Appellant to five to

15 years' incarceration for his PWID conviction.           No further penalty was

imposed on Appellant's simple possession charge. We affirmed Appellant’s

judgment of sentence in an unpublished memorandum on June 20, 2014.

Thereafter, on April 16, 2014, Appellant filed a PCRA petition.           The PCRA

court conducted a hearing and, ultimately, granted Appellant relief on an

illegal sentencing claim pursuant to Alleyne v. United States, 133 S.Ct.

2151 (2013).        On July 15, 2016, the trial court resentenced Appellant,

without considering a mandatory sentence deemed illegal under Alleyne, to

the same five-to-15-year term of incarceration. At the time of resentencing,

the PCRA court also denied Appellant’s remaining PCRA claims.              Appellant

filed a timely post-sentence motion on July 25, 2016. The trial court granted

Appellant’s subsequent request to file a supplemental post-sentence motion

upon receipt of applicable transcripts. Appellant filed a timely supplemental



____________________________________________


3   This was Appellant’s second trial.         The first trial resulted in a mistrial
following a hung jury.



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post-sentence motion on January 9, 2017. The trial court denied relief by

order entered on January 11, 2017. This timely appeal resulted.4

       Appellant’s issues challenge the discretionary aspects of his new

sentence, as well as the ineffective assistance of trial counsel.               Absent

extraordinary circumstances, in a conventional direct appeal from the

judgment of sentence, claims of ineffective assistance of counsel are to be

deferred to PCRA review. See Commonwealth v. Murray, 174 A.3d 1147,

1153 (Pa. Super. 2017). Also currently on appeal, Appellant challenges the

order denying him collateral relief and ordinarily could not raise discretionary

sentencing claims on collateral review. Thus, we have a hybrid appeal and

must first determine what claims may be considered.                 This Court has

previously determined that we have jurisdiction to review both the

resentencing     claim    and    the    underlying   allegations   of   trial   counsel

ineffectiveness. See Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa.

Super. 2017) (PCRA court’s order granting relief with regard to sentencing

and denying all of the petitioner’s other collateral claims was a final

appealable order), citing Commonwealth v. Watley, 153 A.3d 1034 (Pa.


____________________________________________


4  Appellant filed a notice of appeal on February 8, 2017. On February 10,
2017, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 1, 2017,
the trial court granted Appellant a requested extension to file his Rule
1925(b) statement.       Thereafter, Appellant filed a timely Rule 1925(b)
statement. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on
June 8, 2017.



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Super. 2016), Commonwealth v. Gaines, 127 A.3d 15 (Pa. Super. 2015)

(en banc), and Commonwealth v. Bryant, 780 A.2d 646 (Pa. 2001); see

also Commonwealth v. McKeever, 947 A.2d 782, 786 (Pa. Super. 2008)

(citation omitted) (grant of PCRA relief in first PCRA petition does not “reset

clock” of finality of judgment of sentence; “clock” is reset only where direct

appeal rights are restored or original conviction is disturbed).

         We examine Appellant’s ineffective assistance of trial counsel claim

first.   Appellant alleges that “[t]rial [c]ounsel was ineffective for failing to

properly advise [him] of the permissive range of sentences he could receive

for charges pursuant to 35 Pa.C.S.A. § 780-113[(a)(30)].” Id. at 8.           In

sum, Appellant avers:

         [Appellant] was not properly advised of the maximum range of
         sentences he could possibly face if convicted. As such, he did
         not have the appropriate information to make an informed
         decision regarding any potential plea agreements. If [Appellant]
         had been aware of the increased punishments, he could have
         opted to enter a negotiated plea.         There is no reasonable
         strategy that supports [t]rial [c]ounsel’s inaction.

Id. at 9.5

____________________________________________


5  Appellant also claims that trial counsel was ineffective for failing to: (1)
raise an allegation of prosecutorial misconduct when questioning a witness
at trial; (2) file a motion in limine to exclude evidence of his witness’ prior
conviction from trial or object during questioning; and (3) take exception
and reserve his objection regarding a jury instruction on prior inconsistent
statements. See Appellant’s Brief at 10-13. However, Appellant did not
raise these issues in his concise statement of errors complained of on appeal
and, therefore, the issues are waived. See Commonwealth v. Snyder,
870 A.2d 336, 341 (Pa. Super. 2005).



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      Our standard of review is well-settled:

      This Court analyzes PCRA appeals in the light most favorable to
      the prevailing party at the PCRA level. Our review is limited to
      the findings of the PCRA court and the evidence of record and we
      do not disturb a PCRA court's ruling if it is supported by evidence
      of record and is free of legal error. Similarly, we grant great
      deference to the factual findings of the PCRA court and will not
      disturb those findings unless they have no support in the record.
      However, we afford no such deference to its legal conclusions.
      Where the petitioner raises questions of law, our standard of
      review is de novo and our scope of review is plenary. Finally, we
      may affirm a PCRA court's decision on any grounds if the record
      supports it.

                          *           *            *

       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.

      Trial counsel is presumed to be effective, and a PCRA petitioner
      bears the burden of pleading and proving each of the three
      factors by a preponderance of the evidence.

Commonwealth v. Steckley, 128 A.3d 826, 831 (Pa. Super. 2015)

(internal citations, quotations, and brackets omitted).

      The United States Supreme Court has explained that a post-conviction

petitioner seeking relief on the basis that ineffective assistance of counsel

caused him or her to reject a plea agreement must demonstrate prejudice:

      [B]ut for the ineffective advice of counsel there is a reasonable
      probability that the plea offer would have been presented to the
      court (i.e., that the defendant would have accepted the plea and
      the prosecution would not have withdrawn it in light of


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      intervening circumstances), that the court would have accepted
      its terms, and that the conviction or sentence, or both, under the
      offer's terms would have been less severe than under the
      judgment and sentence that in fact were imposed.


Steckley, 128 A.3d at 832, citing Lafler v. Cooper, 132 S. Ct. 1376

(2012).

      Here, Appellant presented the testimony of trial counsel and the

assistant district attorney who represented the Commonwealth at trial.

Appellant did not testify. Trial counsel vaguely alluded to a plea deal with

the Commonwealth, but could not recall any specifics. N.T., 6/17/2016, at

10, 28.   More specifically, trial counsel claimed that “it could have been a

[four] to [eight] year” offer, but he did not “have any recollection.” Id. at

28.   Trial counsel testified that he never discussed the range of sentences

Appellant faced.     Id. at 10.     However, he did review the mandatory

sentencing statute in existence at the time with Appellant.        Id. at 28-29.

Trial counsel also admitted that the assistant district attorney gave him the

sentencing guidelines prior to trial, but he could not recall showing them to

Appellant. Id. at 38. Trial counsel suggested that Appellant “would have to

tell” whether he received them.      Id. at 40.     However, trial counsel also

testified that he looks at the sentencing guidelines “in every single case” and

recognized that the guidelines contain the statutory maximum. Id. at 41.

      The assistant district attorney, representing the Commonwealth at

Appellant’s trial, testified that he did not have “a specific recollection” that a

plea deal had been offered.     N.T., 7/15/2016, at 54, 57.      If an offer had


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been made, the assistant district attorney testified that his general practice

would have been to offer, “one year below the mandatory minimum that was

in existence at that time, and the cap would have been what the maximum

on the mandatory would have been.” Id. “[T]here was no offer made that

was better than four to ten years [of imprisonment].”          Id. at 59.    The

assistant district attorney further testified that it was his practice to allow a

plea offer to remain open until the litigation of a defendant’s pretrial

motions. Id. at 50-51. In this case, once Appellant’s motion to suppress

was denied, any potential plea negotiations were withdrawn. Id. at 51-53.

The Commonwealth did not extend any other plea offers thereafter. Id. at

52.   Further, the assistant district attorney testified that he provided the

applicable sentencing guidelines to trial counsel at the pretrial conference.

Id. at 54.

      The PCRA court determined that there was no merit to Appellant’s

ineffective assistance of counsel claim. Upon review, we agree. While trial

counsel initially testified that he was certain that he did not review the range

of sentences Appellant potentially faced, he also testified that he goes over

the sentencing guidelines with every defendant he represents and conceded

that he received the sentencing guidelines applicable to Appellant in this

case. The assistant district attorney confirmed that he gave trial counsel the

applicable sentencing guidelines.       The PCRA court further noted that

Appellant did not testify at the PCRA hearing and “failed to produce any

further evidence in support of his claim.” Trial Court Opinion, 6/8/2017, at

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4. Thus, the only evidence presented was that trial counsel may or may not

have given Appellant the guidelines. More specifically, the PCRA court found

trial    counsel’s    “testimony   was   neither   persuasive   no[r]   internally

inconsistent.”       Id.   As such, the PCRA court “determined that Appellant

failed to meet his evidentiary burden and [] dismissed this claim.” Id.

        We discern no abuse of discretion or error of law. Applying governing

principles, we cannot conclude that Appellant was entitled to relief. There

was no testimony from Appellant, so there was no evidence of his decision-

making process or direct testimony that he did not receive the sentencing

guidelines.      Thus, he did not show that there was arguable merit to his

claim.     Moreover, Appellant failed to prove that there was a reasonable

probability that a plea offer would have been presented to, or accepted by,

the court. Neither trial counsel nor the Commonwealth could recall a specific

plea offer.    If there were a plea deal, it was extended to Appellant at the

beginning of his first trial, which resulted in a hung jury and no sentence.

Therefore, under Steckley, there was no prejudice to Appellant. There was

no plea offer extended to Appellant during the second trial, so there was no

agreement for counsel to convey to Appellant and no prejudice arising from

failure to convey potential maximum punishments. For all of the foregoing

reasons, Appellant’s ineffective assistance of counsel claim fails.

        Next, Appellant argues that the trial court abused its discretion by

sentencing Appellant to an aggravated range sentence. Appellant’s Brief at

16.     He claims, the trial court “improperly sentenced [him] by including

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aggravating factors related to his prior records score, despite the prior

record score already being a factor the guidelines take into account.” Id.

      Such a claim implicates the trial court’s discretion to impose sentence.

See Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(challenge to the trial court’s discretion in imposing an aggravated range

sentence).   “A challenge to the discretionary aspects of sentencing does not

entitle an appellant to review as of right.” Commonwealth v. Griffin, 149

A.3d 349, 353 (Pa. Super. 2016) (citation omitted). Instead, an appellant

must satisfy a four-part test to invoke this Court’s jurisdiction. Id.   As part

of that test, “an appellant must include in his or her [appellate] brief a

separate concise statement demonstrating that there is a substantial

question     as    to    the     appropriateness     of    the sentence under

the Sentencing Code.” Id. (citation omitted); see also Pa.R.A.P. 2119(f).

“If the Commonwealth objects to the appellant's failure to comply with

Pa.R.A.P. 2119(f), the sentencing claim is waived for purposes of review.”

Griffin, 149 A.3d at 353.       Here, the Commonwealth has objected to

Appellant’s failure to include a separate Rule 2119(f) statement in his

appellate brief. See Commonwealth’s Brief at 17.             Thus, Appellant’s

sentencing issue is waived.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2018




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