J-S61022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

RUSSELL BARRY HARKINS

                            Appellant              No. 1916 WDA 2015


               Appeal from the PCRA Order November 16, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000048-2015


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                     FILED SEPTEMBER 1, 2016

       Russell Barry Harkins appeals pro se from the trial court’s order

denying his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

       On May 18, 2015, Harkins entered an open guilty plea to access device

fraud (M-1)1 before the Honorable John Garhart.       On July 9, 2015, the

Honorable Shad Connelly sentenced Harkins to 1-2 years’ imprisonment and

ordered him to pay $97 in restitution to the victim.        No post-sentence

motions or direct appeal were filed. On September 8, 2015, Harkins filed a

____________________________________________


1
  18 Pa.C.S. § 4106(1)(ii). The criminal complaint charged Harkins with
access device fraud as well as several theft offenses, 18 Pa.C.S. § 3921(a)
(theft by unlawful taking/disposition) and 18 Pa.C.S. § 3924 (theft of
property lost, mislaid or delivered by mistake). See Commonwealth’s
Criminal Complaint, 9/23/14, at 1-4.
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timely pro se PCRA petition alleging that counsel was ineffective for not

“communicating anything during the proceedings” and claiming that the trial

judge inappropriately predetermined Harkins’ sentence before ordering a

presentence investigation report (PSI). PCRA Petition, 9/8/15, at 3. PCRA

counsel was appointed to represent Harkins; counsel subsequently sought

and was granted leave to withdraw.2 On November 16, 2015, the trial court

denied Harkins’ PCRA petition for the following reasons:

       [C]ounsel was not ineffective in representing the defendant.
       Collaterally thereto, the defendant’s plea was voluntary and
       knowingly entered and he was given a sentence below the
       mitigated range of the guidelines. The Court was also properly
       informed by a pre-sentence report at the time of sentencing.

Opinion and Pa.R.Crim.P. 907(a) Notice of Intent to Dismiss PCRA Without

Hearing, 10/23/15, at 1; see also Memorandum Opinion, 12/18/15 (court

relies upon October 23, 2015 opinion/notice of intent to dismiss and

November 16, 2015 final order dismissing PCRA petition to address issues

raised in Harkins’ notice of appeal). On November 30, 2015, Harkins filed

this timely appeal.3

____________________________________________


2
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (setting forth
requirements for counsel to properly withdraw from collateral appeal,
including filing brief that includes description of nature and extent of
counsel’s review, list of issues petitioner wishes to raise, and explanation of
why issues lack merit); see also Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988).
3
  The trial court did not order Harkins to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.



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      On appeal, Harkins raises the following issues for our review:

      (1)    Was counsel effective during or after trial?

      (2)    Did counsel fail to file a Motion to Withdraw as counsel?

      (3)    Is counsel obligated to file appeals upon request?

      (4)    Did PCRA Attorney fail to          correct     and/or   amend
             Defendant’s PCRA [petition]?

Appellant’s Brief, at iv.

      In his brief, Harkins argues that counsel was ineffective for not filing

either a post-trial motion to modify his sentence or a direct appeal. Harkins

claims that because of counsel’s inaction, he was essentially abandoned.

      Harkins did not raise this issue in his pro se PCRA petition; therefore,

it was never presented before the PCRA court. Rather, in his pro se petition,

Harkins claimed that counsel was ineffective for failing to “communicate

[any]thing [to him] during the [plea] proceedings.” PCRA Petition, 9/8/15,

at ¶ 5(C). Accordingly, we find the claim of ineffectiveness for failure to file

post-sentence motions or a direct appeal waived. See Commonwealth v.

Mason, 130 A.3d 601, 627 (Pa. 2015) (claims raised outside of court-

authorized PCRA petition are subject to waiver); Pa.R.Crim.P. 902(B) (failure

to state ground in petition shall preclude defendant from raising ground in

any proceeding for post-conviction collateral relief).




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       Order affirmed.4

____________________________________________


4
  We also note that the other issue raised in Harkins’ PCRA petition, that the
plea judge predetermined his sentence without first considering a PSI report,
is meritless. After entering his plea, the trial judge, the Honorable John
Garhart, suspended sentencing so that it could order and review a PSI.
Sentencing occurred before a different judge, President Judge Connelly. At
sentencing, counsel noted that based on Harkins’ significant prior record, he
was facing a rather harsh standard-range sentence under the guidelines and,
accordingly, suggested a mitigated-range sentence. In response, the court
stated:

       The Court has considered the Pennsylvania Sentencing Code,
       the presentence report and the Pennsylvania Guidelines on
       Sentencing. The Court has also considered the statements of
       defense counsel, the defendant and the attorney for the
       Commonwealth. The Court has considered this defendant’s age,
       background, character and rehabilitative needs; the nature,
       circumstances and seriousness of the offense and the protection
       of the community.

       However, the defendant comes before the Court as a
       repeat felony offender.     And that has generated the
       Guidelines as they are set forth, and the defendant has
       earned that with his prior conduct. So there is no getting
       around that.

       The facts in this case as have been pled to indicate that the
       defendant did find a check and then took steps to convert it to
       his own use and committed the crime of access device fraud,
       which is a misdemeanor of the first degree, punishable by up to
       five years of incarceration. So the charge is not a minor offense.
       The acts of the defendant are not certainly the most heinous.
       But nonetheless, they do represent a repeat felony defendant
       who knew what he was doing was wrong and decided to do it
       anyway, and now places himself before the Court to face those
       consequences.

       His acceptance of responsibility he has acknowledged in terms of
       his plea. But frankly, his acknowledgement comes only after he
       was apprehended and then faced with either having to plea or go
(Footnote Continued Next Page)


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/1/2016




                       _______________________
(Footnote Continued)

      to trial. So I’m not sure how much weight that carries. Under
      all of the circumstances, however, the Court is willing to impose
      the following sentences, which will be actually below the
      mitigated range of the Sentencing Guidelines.             It will,
      nonetheless, be a state sentence[.]

N.T. Sentencing, 7/9/15, at 9-10 (emphasis added).

      Here, where the sentencing judge stated on the record that it
considered Harkins’ PSI prior to imposing sentence, we will not disturb the
sentence. See Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)
(“Where pre-sentence reports exist, we shall continue to presume that the
sentencing judge was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.”).



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