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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

               v.


 TERRELL BARCLAY

                    Appellant             :   No. 3428 EDA 2018
              Appeal from the Order Dated November 5, 2018
  In the Court of Common Pleas of Northampton County Criminal Division
                    at No(s): CP-48-CR-0003585-2016
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                               FILED JULY 23, 2019

     Appellant Terrell Barclay appeals pro se from the order denying his first

Post Conviction Relief Act' (PCRA) petition. Appellant contends that his plea

counsel was ineffective by advising him to accept a negotiated guilty plea for

consecutive sentences, the Commonwealth's plea offer for consecutive

sentences was unlawful, and the trial court erred by accepting an unlawful

plea. We affirm.

     We state the facts as set forth at Appellant's guilty plea hearing:

      [Commonwealth]:    .  Judge, this offense occurred in the early
                             .   .


     hours of May 6, 2016. Officer Farneskei of the Freemansburg
     Police was monitoring traffic on Freemansburg Avenue when he
     observed a vehicle traveling at a high rate of speed. At the [sic]
     time he pulled out from his stationary position and attempted to


* Retired Senior Judge assigned to the Superior Court.
1- 42 Pa.C.S. §§ 9541-9546.
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     follow the vehicle. Due to the speed of the vehicle he was
     pursuing he was never able to fully catch up to it; however, he
     was able to observe it at all times.

     He observed the vehicle go left onto Willow Park Road and then
     observed a flash of light.  When he approached he saw the
     remnants of a crash. The vehicle had crashed into three parked
     cars that were legally parked along the side of the road, the
     shoulder of the road of Willow Park Avenue -- or Willow Park Road.
     After the medics and fire came to extinguish the accident -- I
     should say while [sic] the officer did arrive on scene, he did
     observe -- one person did emerge from the crash that was
     identified as [Appellant] who stands here before you.

     After the flames were extinguished it was determined that there
     were three other passengers in the vehicle. All three of the
     passengers were found in the seated position.            The front
     passenger was Amanda Martin. The rear passenger was Joshua
     Edwards, and the rear passenger on the driver's side was Ashlee
     Mosher. The three of them were pronounced dead on [sic] the
     scene and were transported where an autopsy was performed by
     a forensic pathologist. The result of the autopsy did conclude that
     the three individuals died from blunt force trauma as a result of
     the accident.

     Meanwhile, Your Honor, [Appellant] was transported to the
     hospital for medical, I guess, attention. During medical attention
     blood was taken from [Appellant] which the Commonwealth did
     receive.   The blood was analyzed and it revealed that the
     defendant was operating his vehicle with a blood alcohol level of
     .19. He had THC as well as butylone in his system as well.

     THE COURT: And those would be representative of which drugs?

     [Commonwealth]: The THC is marijuana and the butylone is - it's
     also dibutylone, commonly from bath salts.

     THE COURT: Okay.

     [Commonwealth]: It was determined that the result of the
     accident was due to the fact [Appellant] was intoxicated at the
     time.

     THE COURT: [Appellant]?

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        [Appellant]: Yes.

        THE COURT: Do you agree to those facts?

        [Appellant]: Yes.

N.T. Guilty Plea Hr'g, 11/22/17, at 15-17.

        Appellant was arrested and charged with numerous offenses, including

three counts of homicide by vehicle while driving under the influence.2
Appellant negotiated a plea agreement in which the trial court would impose

a sentence of four to ten years' incarceration for each of the three counts,

with each sentence to "run consecutively to one another for an aggregate

sentence of 12 years to 30 years." Id. at 2. The trial court reviewed the
proposed aggregate sentence with Appellant:

        THE COURT:       The agreed -upon sentence would be to sentence
                         .   .   .


        you for ..  a minimum period of 4 years to a maximum period of
                     .


        10 years in a State Correctional Institution. Do you understand
        that, [Appellant]?

2 We reproduce the version of the statute that was in effect at the time of
Appellant's offense:
        Any person who unintentionally causes the death of another
        person as the result of a violation of section 3802 (relating to
        driving under influence of alcohol or controlled substance) and
        who is convicted of violating section 3802 is guilty of a felony of
        the second degree when the violation is the cause of death and
        the sentencing court shall order the person to serve a minimum
        term of imprisonment of not less than three years. A consecutive
        three-year term of imprisonment shall be imposed for each victim
        whose death is the result of the violation of section 3802.

75 Pa.C.S. § 3735. The statute was subsequently revised on October 24,
2018.

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      [Appellant]: Yes.

      THE COURT: Okay.      So you are agreeing for each of the three
      counts that you would serve a term of imprisonment in a State
      Correctional Institution for a minimum period of 4 years to a
      maximum period of 10 years. Do you understand that?

      [Appellant]: Yes.

      THE COURT: And do you understand that, as part of that
      agreement, the sentences for each of the three counts will run
      consecutive to each other which means they will be added one to
      the other for a total sentence of a minimum period of 12 years to
      a maximum period of 30 years in a State Correctional Institution?
      Do you understand that, sir?

      [Appellant]: Yes.

      THE COURT: And do you understand, sir, that after you have
      served the 12 years in a State Correctional Institution, it will be
      the exclusive province and decision of the Pennsylvania Board of
      Parole whether to release you at the end of 12 years? Do you
      understand that?

      [Appellant]: Yes.

      THE COURT: You could end up serving more than 12 years and
      you could, if you violate your parole, serve the entire 30 years.
      Do you understand that, sir?

      [Appellant]: Yes.

      THE COURT: Okay. And are you in agreement with that sentence
      of 12 years to 30 years in a State Correctional Institution?

      [Appellant]: Yes.

Id. at 8-9.
      The trial court continued to question Appellant and noted that the record

included a written guilty plea colloquy signed by Appellant. Id. at 9. Both


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the written guilty plea colloquy and the court's oral colloquy asked whether

Appellant was being compelled to plead guilty, to which Appellant denied any

coercion. Id. at 14-15; Guilty Plea Statement (Colloquy), 11/21/17, at 10.

Appellant acknowledged that he read, completed, understood, and initialed

each page of the guilty plea colloquy. N.T. Guilty Plea Hr'g at 9-10. At the

end of the hearing, the trial court again asked Appellant, "[i]s anyone forcing

you to take the agreed -upon sentence of 12 years to 30 years in a State
Correctional Institution?" N.T. Guilty Plea Hr'g at 15. Appellant responded,

"No." Id. The Commonwealth read the victim impact statements into the
record, and the court imposed the negotiated sentence.

      Appellant did not file a post -sentence motion or a direct appeal. On July

13, 2018, the PCRA court docketed Appellant's pro se PCRA petition.
Appellant's pro se petition alleged, among other things, that plea counsel was

ineffective by not challenging the illegality of three consecutive sentences.

Appellant's Pro se Pet. for PCRA Relief, 7/13/18, at 1-2 (unpaginated). The

PCRA court appointed PCRA counsel, who then filed a Turner/Finley3 letter

and a petition to withdraw. PCRA counsel's Turner/Finley letter stated there

was no merit to any of Appellant's claims. Turner/Finley Ltr., 10/3/18, at 1.




3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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      On October 4, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice.

Order, 10/4/18. The order also granted PCRA counsel's petition to withdraw.

Id. Appellant did not file a pleading responsive to the PCRA court's Rule 907

notice.4 On November 5, 2018, the PCRA court formally dismissed Appellant's

PCRA petition. Order, 11/5/18. Appellant timely appealed and timely filed a

court -ordered   Pa.R.A.P.   1925(b) statement.5   The PCRA court filed    a


responsive opinion.

      Appellant raises the following issues:

      1. Was sentencing counsel ineffective for allowing Appellant [to]
      agree to a plea based upon consecutive sentences in violation of
      42 Pa.C.S.A. § 9765, and case law by the Superior Court?

      2. Was the Commonwealth in error to offer an unlawful plea
      agreement for consecutive sentences, that forces Appellant to


4 On October 18, 2018, Appellant filed a pro se petition to proceed pro se,
claiming that because PCRA counsel withdrew, he was entitled to a hearing
under Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). On October 30,
2018, the PCRA court denied Appellant's petition as moot because PCRA
counsel had already withdrawn. Order, 10/30/18. Although we acknowledge
that Appellant has waived any "issues of PCRA counsel's effectiveness
regarding Turner/Finley requirements [because] he decline[d] to respond to
the PCRA court's notice of intent to dismiss," Commonwealth v. Grayson,
     A.3d     I    , 2019 WL 2417016, *4 n.5 (Pa. Super. 2019) (citation
omitted), PCRA counsel complied with the requirements of Turner/Finley.
5 On November 27, 2018, the PCRA court ordered Appellant to comply with
Pa.R.A.P. 1925(b). Appellant timely filed his Rule 1925(b) statement on
December 13, 2018, but the PCRA court did not docket Appellant's statement
until December 18, 2018. See Commonwealth v. Hopfer, 965 A.2d 270,
271 n.2 (Pa. Super. 2009) (stating, "Pursuant to the 'prisoner mailbox rule,'
we deem [the defendant's] documents filed on the date when he placed them
in the hands of prison authorities for mailing." (citation omitted)).



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      forfeit his right to challenge the Commonwealth's offering an
      agreement based upon an unlawful contract which cannot be
      enforced?

      3. Was the trial court in error to accept an unlawful plea
      agreement with the Commonwealth, which is based upon an
      unlawful contract agreement which violates statutory authority of
      42 Pa.C.S.A. § 9765 governing the results of a single act that
      caused the death of three victims that was accidental, and try
      replying [sic] upon the outcome of a decision of this Court that
      ruled contrary to a prior decision in another case; to justify
      denying Appellant the relief he's entitled to based upon older
      decisions of this Court?

Appellant's Brief at 5.

      We summarize Appellant's arguments in support of all of his issues

together.6   Appellant claims that the Commonwealth's plea agreement for

three consecutive sentences violates 42 Pa.C.S. § 9765,7 and therefore the

trial court imposed an unlawful sentence. Id. at 8. Appellant argues that plea

counsel should have known the plea agreement was illegal and thus
improperly convinced Appellant to accept the plea. Id. Appellant similarly

asserts the Commonwealth acted outside its legal authority in offering such



6 Although Appellant's arguments are difficult to understand, we are able to
discern the above.

 This statute addresses the merger of sentences:
      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the other
      offense. Where crimes merge for sentencing purposes, the court
      may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765.

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an illegal plea agreement and the trial court erred by accepting it. Id. In

support, Appellant cites to Commonwealth v. Diaz, 867 A.2d 1285 (Pa.
Super. 2005), Commonwealth v. Flynn, 460 A.2d 816 (Pa. Super. 1983),
and Commonwealth v. Stemple, 940 A.2d 504 (Pa. Super. 2008).

         In addressing whether plea counsel was ineffective, we are guided by

the following:

         This Court's standard of review regarding an order denying a
         petition under the PCRA is whether the determination of the PCRA
         court 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.

Grayson,            A.3d at    ,   2019 WL 2417016 at *3 (citation omitted).

         To prevail on a claim alleging counsel's ineffectiveness under the
         PCRA, [the petitioner] must demonstrate (1) that the underlying
         claim is of arguable merit; (2) that counsel's course of conduct
         was without a reasonable basis designed to effectuate his client's
         interest; and (3) that he was prejudiced by counsel's
         ineffectiveness, i.e. there is a reasonable probability that but for
         the act or omission in question the outcome of the proceeding
         would have been different.

         It is clear that a criminal defendant's right to effective counsel
         extends to the plea process, as well as during trial.

Id. at       ,   2019 WL 2417016 at *3 (citation omitted).

         A "challenge to the legality of a sentence is cognizable under the PCRA."

Stemple, 940 A.2d at 507.             In Stemple, the defendant raised a similar
challenge to the legality of his sentence for homicide by vehicle while driving




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under the influence, which resulted in the deaths of two victinns.8 Id. at 505.

In resolving   the defendant's particular challenge, the Stemple Court

construed 75 Pa.C.S. § 3735(a) as requiring "consecutive sentences for each

death." Id. at 509-10. Ultimately, the Stemple Court reasoned:

      for a violation of 75 Pa.C.S.A. § 3735(a) involving multiple deaths,
      each victim's death must be reflected in a distinct count. If the
      defendant is convicted, the sentencing court must impose at each
      count an indeterminate sentence of incarceration where the
      minimum term of the sentence is not less than three years and
      where that minimum is not more than half the maximum. The
      maximum term imposed at each single count, i.e., for one death,
      must not exceed ten years. At the least, the court must
      impose consecutive sentences of three to six years for each
      and every death.
Id. at 513 (emphasis added).

      Initially, Appellant's reliance on the merger statute is misplaced as a

violation of Section 3735(a) that results in multiple deaths-here, Appellant's

actions resulted in three deaths-mandates three consecutive sentences. See

Stemple, 940 A.2d at 513. To the extent Appellant relies on Diaz and Flynn,

neither case involved homicide by vehicle while driving under the influence.

See Diaz, 867 A.2d at 1286 (resolving defendant's challenge to consecutive

sentences for burglary and theft by unlawful taking); Flynn, 460 A.2d at 823

(concluding that for sentencing purposes, theft merged into burglary and



8 Specifically, the defendant alleged, among other claims, that the trial court
erred by construing Section 3635(a) as requiring a three to six year sentence
for the first death followed by a flat three year sentence for any additional
deaths. Stemple, 940 A.2d at 507.

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robbery,   and   indecent   assault   merged   into   rape).   Therefore,   the

Commonwealth's plea offer of three consecutive sentences was lawful. See

75 Pa.C.S. § 3735; Stemple, 940 A.2d at 513. The trial court, by extension,

could accept the plea and impose the agreed -upon sentences. See Stemple,

940 A.2d at 513. Because Appellant cannot establish his claim had arguable

merit, he cannot prevail on his contention that plea counsel was ineffective.

See Grayson,         A.3d at    ,   2019 WL 2417016 at *3. Because the PCRA

court's determination is free of legal error, we affirm the order below. See

Id.

      Order affirmed.

Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 7/23/19




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