J-S64023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

KENNETH ALLEN CARSON,

                         Appellant                 No. 445 WDA 2014


           Appeal from the PCRA Order Entered February 4, 2014
               In the Court of Common Pleas of Erie County
                        Criminal Division at No(s):
                         CP-25-CR-0001062-2012
                         CP-25-CR-0002858-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED OCTOBER 08, 2014

      Appellant, Kenneth Allen Carson, appeals pro se from the trial court’s

February 4, 2014 order denying his petition for relief filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      In January and March of 2013, Appellant entered nolo contendere

pleas in two separate cases to indecent assault, possession of cocaine, and

possession of drug paraphernalia. On May 2, 2013, he was sentenced to 12

to 24 months’ imprisonment for indecent assault, 6 to 12 months’

imprisonment for possession of drug paraphernalia, and 18 to 36 months’

incarceration for possession of cocaine. These sentences were imposed to

run consecutively, totaling an aggregate sentence of 36 to 72 months’

incarceration.   Appellant did not file post-sentence motions or a direct
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appeal.     Accordingly, his judgment of sentence became final on June 2,

2013. See 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes final at

the conclusion of direct review or the expiration of the time for seeking the

review); Pa.R.A.P. 903(a) (requiring notice of appeal to “be filed within 30

days after the entry of the order from which the appeal is taken”).

        Appellant subsequently filed two timely, pro se PCRA petitions in each

case,     which   the   court   consolidated.   Counsel    was   appointed,   but

subsequently filed a petition to withdraw pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc). On December 19, 2013, the PCRA

court granted counsel’s petition to withdraw and issued a Pa.R.Crim.P. 907

notice of its intent to dismiss Appellant’s petition.     Appellant did not file a

timely response, and on February 4, 2014, the court issued an order denying

his petition.

        Appellant filed a timely pro se notice of appeal.     In his handwritten

brief, he presents five issues for our review, which we reproduce verbatim:

        1. The Appellant’s plea agreement was breached when the
        Sentencing Judge did not honor the stipulated plea agreement
        negotiation at the plea hearing.

        2. The Trial Court Err in denying the Appellant’s claim of Counsel
        ineffectiveness when in open court during sentencing, the
        Honorable Judge stated that the appellant was a 4 on the prior
        record score, but the sentence was an illegal sentence because
        the appellant was classified as a repeat felony I and felony II
        offender (“RFEL”).




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      3. The Trial Court Err in denying the Appellant’s claim of Counsel
      ineffectiveness by not challenging for the appellant’s Time
      Credited towards the appellant being sentence.

      4. The Trial Court Err in denying the Appellant’s claim of Counsel
      ineffectiveness by not filing the appropriate Motion, when asked
      by the appellant to do so, to file a Modification Motion of the
      sentence within the ten (10) days prior to being sentenced.

      5. The Trial Court Err in denying the Appellant’s claim of Counsel
      ineffectiveness for not challenging or fighting for the appellant
      for the Drug Rehabilitation Treatment Program Facility for the
      appellant, when the appellant stated at sentencing that he was
      an addict and still needed help for his drug addiction.

Appellant’s Brief at 3-4.

      Our standard of review regarding an order denying post-conviction

relief under the PCRA is whether the determination of the court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference

to the findings of the PCRA court, and we will not disturb those findings

merely    because    the    record   could   support   a   contrary   holding.

Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001).               The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).

      In Appellant’s first issue, he claims that his plea agreement was

breached when the negotiated sentence was not imposed by the court.

Initially, even if we liberally construe Appellant’s argument as a cognizable

PCRA claim that his plea was “unlawfully induced where the circumstances

make it likely that the inducement caused the petitioner to plead guilty and

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the petitioner is innocent[,]” 42 Pa.C.S. § 9543(a)(2)(iii), Appellant’s

argument is too underdeveloped to convince us that he is entitled to post-

conviction relief. Namely, while Appellant cites and discusses various cases

that he deems applicable to this issue, he provides no discussion of how this

legal authority indicates his plea was invalid in this case.       See Appellant’s

Brief at 11-15. Indeed, he does not even explain what term of incarceration

he negotiated with the Commonwealth and how it differed from the sentence

actually imposed. Accordingly, Appellant’s first issue is meritless.1

       Next, Appellant avers that his sentence is illegal.           However, his

argument in support of this claim is extremely confusing. He states that a

challenge to an illegal sentence may be raised at any time, provides the

definition of an “illegal sentence,” and sets out the statutory maximum

sentences     allowed    for   the   various   degrees   of   misdemeanor   crimes.

Appellant’s Brief at 15-17.          Yet in regard to the legality of his specific

sentence, Appellant simply states the terms of incarceration imposed for

____________________________________________


1
  We note that within his first issue, Appellant also seems to argue that his
trial counsel was ineffective for failing to correct an error in the calculation of
Appellant’s prior record score. Again, Appellant does not provide sufficient
explanation of this claim. He does not state what error was made in
calculating his prior record score or cite to where in the record counsel
should have objected. Moreover, the PCRA court states that the prior record
score “was properly applied at the time of sentencing.” PCRA Court Opinion
(PCO), 12/19/13, at 9. Appellant’s argument does not convince us that the
court’s conclusion was an abuse of discretion.




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each crime, and declares that he “feels that the Judge had sentenced him

invalidly.” Id. at 17. Appellant’s argument is insufficient to prove that his

sentence is illegal. Accordingly, the PCRA court did not err in rejecting this

claim.

      In his third issue, Appellant maintains that his trial counsel was

ineffective for not challenging the court’s failure to award Appellant credit for

time served. In reviewing such claims, our Supreme Court has stated that:

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from the “[i]neffective assistance of counsel
      which, in the circumstances of the particular case, so
      undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.”
      Generally, counsel’s performance is presumed to be
      constitutionally adequate, and counsel will only be deemed
      ineffective upon a sufficient showing by the petitioner. To obtain
      relief, a petitioner must demonstrate that counsel’s performance
      was deficient and that the deficiency prejudiced the petitioner. A
      petitioner establishes prejudice when he demonstrates “that
      there is a reasonable probability that, but for counsel’s
      unprofessional errors, the result of the proceeding would have
      been different.” … [A] properly pled claim of ineffectiveness
      posits that: (1) the underlying legal issue has arguable merit;
      (2) counsel’s actions lacked an objective reasonable basis; and
      (3) actual prejudice befell the petitioner from counsel’s act or
      omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

      Here, in support of Appellant’s claim of ineffectiveness, he simply

states that he “is entitled to credit for time served in state custody because

[he was] denied release on bail due to an outstanding federal detainer.”



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Appellant’s Brief at 19. However, the PCRA court concluded that Appellant’s

time served “was properly attributable to the federal detainer.” PCO at 9.

Appellant’s undeveloped discussion of this issue does not convince us that

the PCRA court’s conclusion is erroneous or an abuse of discretion.

Accordingly, his claim of ineffectiveness lacks arguable merit.

      Next, Appellant avers that his trial counsel acted ineffectively by not

filing a motion to modify Appellant’s sentence as Appellant requested.

Again, Appellant provides no discussion of the particulars of this claim, such

as what issues he wanted counsel to raise in a post-sentence motion, or why

those assertions would have warranted sentencing relief.          Accordingly, he

has not demonstrated that this issue has arguable merit.

      In any event, as the PCRA court emphasizes, counsel orally moved for

modification of Appellant’s sentence before the close of the sentencing

proceeding. PCO at 2. In particular, counsel asked the court to reconsider

Appellant’s sentence in light of the fact that Appellant entered a plea

agreement. Counsel also requested reconsideration of the court’s decision

to impose consecutive, rather than concurrent, terms of incarceration. The

court rejected both of these requests.        Because counsel orally sought

sentencing modification, Appellant has also failed to prove he was prejudiced

by counsel’s failure to file a written post-sentence motion.

      In Appellant’s fifth issue, he contends that trial counsel was ineffective

for not “fighting for” Appellant to be sentenced to “intermediate punishment”

in an inpatient, drug treatment program.          Appellant’s Brief at 20-21.

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Appellant argues that counsel should have asked for such a sentence

because “[A]ppellant had stated at sentencing[] that he was an addict and

still needed help for his drug addiction.” Id.

      Appellant has failed to prove that he was prejudiced by counsel’s

purported error in this regard.    Appellant does not explain why the court

would have sentenced him to “intermediate punishment” in a drug treatment

program had counsel sought such a sentence.           Considering the court’s

emphasis on Appellant’s prior criminal record, the nature of his instant

offenses, and the fact that Appellant committed the current crimes while on

federal supervision for unrelated convictions, it is extremely unlikely that the

court would even have considered a sentence of ‘intermediate punishment,’

let alone imposed one. See PCO 2, 9. Moreover, as the PCRA court points

out, it took into account Appellant’s addiction issues and ordered drug and

alcohol treatment as part of his sentence. PCO at 8 (citing N.T. Sentencing,

5/2/13, at 42). Therefore, counsel was not ineffective for failing to request

a sentence of intermediate punishment in a drug treatment program.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2014


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