J-S01025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 SHELDON D. SWAN                          :
                                          :
                    Appellant             :   No. 1218 MDA 2018

            Appeal from the PCRA Order Entered June 25, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0005179-2010

BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.:                       FILED FEBRUARY 08, 2019

      Sheldon D. Swan (Appellant) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541–9546. We affirm.

      The PCRA court summarized the relevant facts and procedural history

as follows:

          Following a jury trial commencing on August 1, 2011 and
      concluding on August 5, 2011, [Appellant] was found guilty of
      [m]urder of the second degree, [r]obbery, and conspiracy to
      commit robbery. [Appellant] was sentenced to a mandatory term
      of life imprisonment. Following the denial of his [p]ost-[s]entence
      [m]otion, [Appellant] filed a [n]otice of [a]ppeal to the
      Pennsylvania Superior Court. The Pennsylvania Superior Court
      affirmed the judgment of sentence on November 21, 2012 (1681
      MDA 2011).

         In light of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455,
      183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana, --- U.S.
      ---, 136 S. Ct. 718, 193 L.Ed.2d 599 (2016), a re-sentencing




*Retired Senior Judge assigned to the Superior Court.
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       hearing was held on November 2, 2017.[1] Upon agreement,
       [Appellant] was re-sentenced at Count 1 – to pay a fine of $1,000,
       costs and to a period of incarceration of 360 months (30 years) to
       a maximum of life in a state correctional institution, Count 2
       merges with Count 1 for sentencing purposes, and at Count 3 –
       to pay a fine of $1,000, costs, and a sentence of no less than 120
       months nor more than 240 months running concurrently with
       Count 1.

           On December 29, 2017, [Appellant] filed a pro se [m]otion
       requesting relief under the [PCRA]. In [Appellant]’s pro se
       [m]otion he allege[d] ineffective assistance of counsel for . . . re-
       sentencing counsel’s failure to file a post-sentence motion nor a
       motion for reconsideration, and the imposition of a sentence
       greater than the lawful maximum.              PCRA counsel was
       subsequently appointed and filed a [s]upplemental PCRA
       [p]etition on March 12, 2018 raising claims of ineffective
       assistance of counsel. A PCRA hearing was held on May 25, 2018
       following which both sides submitted briefs/memorandum of law.

PCRA Court Opinion, 6/25/18, at 1-2 (PCRA court’s footnotes omitted).

       On June 25, 2018, the PCRA court entered an order dismissing

Appellant’s PCRA petition. Appellant filed this timely appeal on July 23, 2018.

Both the PCRA court and Appellant have complied with Rule 1925 of the

Pennsylvania Rules of Appellate Procedure.

       On appeal, Appellant presents the following issues for review:

       A.   Whether Re-Sentencing Counsel was ineffective for [failing
       to advise] Appellant that he had the option to accept an
       agreement from the Commonwealth, or to allow the [t]rial [c]ourt


____________________________________________


1 In Miller, the United States Supreme Court held that sentences of
“mandatory life without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual
punishments.’” Miller, 567 U.S. at 465. In Montgomery, the Supreme Court
concluded that the holding of Miller applied retroactively to juvenile offenders
on collateral review. Montgomery, 136 S. Ct. at 736.

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      the discretion to sentence him following the reversal of his life
      sentence?

      B.    Whether Re-Sentencing Counsel was ineffective for failing
      to sufficiently meet with and prepare Appellant for the re-
      sentencing hearing where Appellant faced a sentence of life
      imprisonment?

Appellant’s Brief at 4.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and

citations omitted).       “To be entitled to PCRA relief, [an] appellant must

establish, by a preponderance of the evidence, [that] his conviction or

sentence resulted from one or more of the enumerated errors in 42

Pa.C.S.[A.] § 9543(a)(2)[.]” Id.

      Appellant presents for our review two ineffective assistance of counsel

claims. In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.”           Id. (citation omitted).     To

demonstrate prejudice in an ineffective assistance of counsel claim, “the


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petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.

      Appellant argues that re-sentencing counsel was ineffective because re-

sentencing counsel failed to advise him that he had the option to accept the

Commonwealth’s negotiated sentence (30 years to life in a state correctional

institution), or to allow the trial court to impose a sentence in its discretion.

Appellant claims that had he known that he had the option to decline the

negotiated sentence, he would have permitted the trial court to impose a

sentence in its discretion. Additionally, Appellant asserts that re-sentencing

counsel was ineffective for failing to meet with Appellant prior to the re-

sentencing hearing to advise him regarding his sentencing options.

      In rejecting these ineffective assistance of counsel claims, the PCRA

court explained:

         Here, the record is replete with information that [Appellant]
      entered a knowing, intelligent, and voluntary agreement with
      regards to his sentencing. [Appellant] understood that he could
      have possibly faced a greater sentence than the 30[-]year
      sentence that he was given. Transcript of Proceedings, Re-
      Sentencing, Nov[.] 2, 2017, page 5 (hereinafter “N.T. at ___”).
      Additionally, this [c]ourt undertook a colloquy on [Appellant] and
      the following exchange took place:

         THE COURT: Well, let me ask [Appellant] a question or two.
         I understand everything your attorney has stated, and, of
         course, I heard your agreement. But I guess the basic

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       question I have is are you prepared to make a decision
       today? If the answer is no, that you need some more time,
       I will give you all the time you need. There is no rush here
       today is what I am trying to tell you. If you need more time
       to think about it, I will give you more time to think about it.
       So you tell me: Would you like to go forward today or do
       you want to give it some thought for a little while longer?
       You give me a time frame and we will proceed with that.

       [Appellant]: We can go on with it.

       THE COURT: You want to go today?

       [Appellant]: Yes, sir.

       THE COURT: Very well. And you are satisfied you had a full
       opportunity to talk to your attorney and you understand
       what he is going to be arguing for in this particular case?

       [Appellant]: Yes.

       THE COURT: [Appellant], even though there is an agreed-
       upon resolution in this case, the 30 years to life, you still
       have the opportunity to speak before sentencing. Is there
       anything you would like to say?

       [Appellant]: Can I get a moment, please?

       THE COURT: Sure.

       [Appellant]: Proceed, yes. I understand everything. Let’s
       move on.

     N.T. at 6-10.

        Here, the record [further] reflects that [Appellant] had an
     opportunity to speak to his re-sentencing counsel and re-
     sentencing counsel had an opportunity to write to him outlining
     the negotiation. N.T. at 4. Re-sentencing counsel indicated that
     he had discussions with [Appellant] on where a sentence might
     end up and that [Appellant] had a right to a hearing. N.T. at 4-5.
     . . . As such, the record indicates that [Appellant] entered a
     knowing, intelligent, and voluntary agreed-upon sentence.


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PCRA Court Opinion, 6/25/18, at 5-6.

      Based upon our review of the certified record on appeal, including the

transcripts of Appellant’s re-sentencing and PCRA hearings, we conclude that

the PCRA court did not err in dismissing Appellant’s PCRA petition. The record

supports the PCRA court’s determination that re-sentencing counsel was not

ineffective and that Appellant had the opportunity to consult with his attorney

regarding his re-sentencing and was aware of his options relating to his

sentence.

      Specifically, the discussion between the trial court, re-sentencing

counsel, and the district attorney, as evidenced in the transcript of Appellant’s

re-sentencing hearing, explicitly indicates that Appellant was aware that he

could either accept the negotiated sentence of 30 years to life imprisonment

or proceed with a sentencing hearing where the court would sentence him at

its discretion. See N.T., 11/2/17, at 2-6. The transcript of Appellant’s re-

sentencing hearing further reveals that re-sentencing counsel made numerous

attempts to contact Appellant to discuss his re-sentencing options, wrote him

a letter regarding sentencing negotiations, and sent him news articles about

the types of sentences courts had been imposing on defendants in similar

situations. Id. at 3-4. Moreover, Appellant stated at re-sentencing that he

was satisfied that he had a full opportunity to talk to his attorney about his

sentencing options. Id. at 6.




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     In sum, the record contradicts Appellant’s claims.   Accordingly, we

conclude that the PCRA court did not abuse its discretion in dismissing

Appellant’s PCRA petition.

     Order affirmed.

     President Judge Panella joins the memorandum.

     Judge Pellegrini files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/08/2019




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