J-S68029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                       v.

CHRISTOPHER LEE HARRIS

                            Appellant                   No. 211 WDA 2016


              Appeal from the PCRA Order dated January 21, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0008631-2011


BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                          FILED DECEMBER 15, 2016

        Appellant, Christopher Lee Harris, appeals from the order dismissing

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. Appellant asserts that his trial counsel was ineffective

for recommending a sentence to the court which was longer than the

minimum sentence recommended by the guidelines. Upon review, we affirm.

        This Court laid out the underlying facts of the case when we affirmed

Appellant’s judgment of sentence:

               [Appellant] lived with the victim, Alison Studvant, on the
        1500 block of Marlboro Avenue in Wilkinsburg. On July 1, 2011,
        [Appellant], his girlfriend, the victim, and the victim’s boyfriend,
        were drinking. After the victim’s boyfriend departed, the victim
        solicited [Appellant] and his girlfriend for a group sexual
        encounter, and allegedly attempted to kiss [Appellant]’s
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S68029-16


        girlfriend. [Appellant], angered by the victim’s interaction with
        his girlfriend, and at the sexual solicitation, began arguing with
        the victim. The victim then left the room, went into the kitchen,
        returned with two knives, and began swinging the knives
        around. [Appellant] then approached the victim and attempted
        to disarm her. In the process of attempting to disarm the victim,
        [Appellant] was cut on the arm, cheek and under his eye.
        [Appellant] and the victim continued arguing, and when the
        victim left the room and went upstairs, [Appellant] leaned out of
        the front door and fired four shots into the air. The victim
        returned downstairs minutes later, and more arguing ensued.
        The victim continued swinging knives and struck [Appellant] in
        the wrist and face. [Appellant] then took several steps
        backwards, and, although aware of his opportunity to leave the
        premises, raised his gun to the victim’s upper torso and fired
        twice, striking her in the left breast. The victim slumped against
        the wall, and when she attempted to regain her footing,
        [Appellant] shot her in the ankle. The victim subsequently died
        from her injuries.

              [Appellant] was arrested and charged with one count of
        criminal homicide. [Appellant] filed a pre-trial motion to
        suppress his statements to the police, which the trial court
        subsequently denied. On February 1, 2012, at the conclusion of
        a jury trial, [Appellant] was found guilty of third-degree murder.1

Commonwealth v. Harris, 1395 WDA 2012, at 1-2 (Pa. Super., July 30,

2013) (“Harris I”) (unpublished memorandum) (citations to the record and

footnote omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

        At Appellant’s sentencing hearing on April 30, 2012, his trial counsel

presented three witnesses who spoke on Appellant’s behalf: Appellant’s

mother, Appellant’s older brother, and a member of Appellant’s church. N.T.,

4/30/12, at 4-9. Appellant’s counsel argued for leniency because Appellant


____________________________________________


1
    18 Pa.C.S. § 2502(c).



                                           -2-
J-S68029-16



had no prior contact with the criminal justice system and had been lawfully

carrying a registered firearm at the time of the shooting. Id. at 9-10.

Appellant’s trial counsel concluded her sentencing argument with the

following: “For those reasons, Your Honor, his guidelines start at 90 months.

I would suggest a sentence starting at 120 months.” Id. at 10:18-20.

Appellant thereafter exercised his right of allocution, saying only “I’m sorry.”

Id. at 10:22.

       In response, the Commonwealth presented three witnesses: the

victim’s mother, daughter, and sister. N.T., 4/30/12, at 11-15. The

Commonwealth did not make argument or recommend a sentence to the

trial court.

       When sentencing Appellant, the judge stated that he took into

consideration Appellant’s Behavior Clinic Evaluation and Pre-Sentence

Investigation Report. N.T., 4/30/12, at 15. The judge also noted that he

incorporated the testimony from the jury trial into the sentencing hearing,2

and acknowledged that the standard sentence range was 90 to 240 months’

minimum incarceration. Id. at 16. Appellant received a sentence of 120 to

240 months’ incarceration, or ten to twenty years. Id.

       Appellant filed a post-sentence motion for a new trial on May 1, 2012,

in which he challenged the sufficiency and weight of the evidence supporting

____________________________________________


2
  The judge did not indicate any particular portion of the trial testimony that
aided him in his sentencing.



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J-S68029-16



his conviction. Post-Sentence Mot., 5/1/12. The trial court denied the motion

on August 14, 2012. Trial Ct. Order, 8/14/12.

       Appellant filed a timely notice of appeal through counsel on September

12, 2012,3 challenging the sufficiency and weight of the evidence. Harris I

at 3. On July 30, 2013, this Court affirmed the judgment of sentence. PCRA

Ct. Op., 6/3/16, at 2. On December 4, 2013, the Supreme Court of

Pennsylvania denied Appellant’s petition for allowance of appeal. Id.

       On May 6, 2014, Appellant filed a timely pro se PCRA Petition. PCRA

Ct. Op., 6/3/16, at 2.4 In his petition, Appellant alleged that his trial counsel

was ineffective for suggesting a sentence above the minimum range in the

Pennsylvania Sentencing Guidelines, 204 Pa. Code §§ 303.1 et seq.:

       [Trial counsel] had no reasonable basis for suggesting that
       [Appellant’s] sentence [] start above the standard range on the
       guidelines where prior to making that suggestion, [Appellant’s]
       counsel stated facts of [Appellant’s] no prior criminal history
       [and] no run-in’s with the police leading the court to consider
       the mitigating circumstances for a possible mitigated sentence of
       seventy-eight (78) months. [Counsel’s request for a sentence
____________________________________________


3
 Appellant also filed pro se notices of appeal on August 30, 2012, and
September 4, 10, and 11, 2012. Notice of Appeal, 8/30/12; Notice of
Appeal, 9/4/12; Notice of Appeal, 9/10/12; Notice of Appeal, 9/11/12.
4
  The petition was filed within one year of December 4, 2013, the date
Appellant’s judgment of sentence became final. See 42 Pa.C.S. § 9545(b)(1)
(stating that generally a PCRA petition must be filed within one year of the
date the petitioner’s judgment of sentence becomes final); 42 Pa.C.S. §
9545(b)(3) (for purposes of the PCRA, “a judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review”).



                                           -4-
J-S68029-16


        starting at 120 months] displayed incompetence, and did not
        further her client[’s] [] interest. . . . Such an error show[]s that
        [there] is a reasonable probability that but for counsel’s
        unprofessional errors [] the outcome of the hearing would have
        been different.

PCRA Pet., 5/6/14, at ¶¶ 22-23.5

        The PCRA court appointed counsel, and on August 5, 2014, counsel

filed   a   petition   to    withdraw   and    a   “no    merit”   letter   pursuant    to

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

PCRA Ct. Op., 6/3/16, at 2. In her Turner/Finley letter, Appellant’s PCRA

counsel asserted that Appellant was complaining about his trial counsel’s

failure to raise an excessive-sentence claim in Appellant’s post-sentence

motion. Commonwealth v. Harris, 1586 WDA 2014, at 10 (Pa. Super.,

June 5, 2015) (“Harris II”) (unpublished memorandum disposing of

Appellant’s appeal from adverse decision on his 2014 PCRA petition).

Appellant’s PCRA counsel concluded that Appellant’s trial counsel was not

ineffective for failing to preserve that issue. Id. The PCRA court granted

appointed counsel’s petition to withdraw and issued a notice of its intent to

dismiss the petition without a hearing, pursuant to Rule 907 of the

Pennsylvania Rules of Criminal Procedure. PCRA Ct. Op., 6/3/16, at 2-3.
____________________________________________


5
  The parties do not dispute the applicable sentencing guidelines. The
mitigated range began at a minimum of 78 months; the standard range was
a minimum of 90 to 240 months. The statutory limit was a minimum of 240
months. PCRA Ct. Op., 6/3/16, at 7.



                                           -5-
J-S68029-16


Appellant responded to the Rule 907 notice on August 18, 2014, alleging

PCRA counsel’s ineffectiveness. Id. at 3. On September 17, 2014, the PCRA

court dismissed the petition without a hearing. Id.

       On September 25, 2014, Appellant filed a timely pro se appeal of the

dismissal of his PCRA petition. PCRA Ct. Op., 6/3/16, at 3. Appellant

asserted that his trial counsel was ineffective for suggesting a sentence

above the minimum or mitigated sentence range, that he had a right to an

evidentiary hearing on trial counsel’s effectiveness, and that his appointed

PCRA counsel was ineffective for misconstruing his PCRA issue. Harris II at

6-7.

       On June 5, 2015, this Court issued its Harris II decision disposing of

Appellant’s appeal. We held that Appellant’s claim was similar to a claim that

trial counsel was ineffective for failing to object to an erroneously higher

calculated guideline range, see Commonwealth v. Barnes, 593 A.2d 868,

871 (Pa. Super. 1991), and that such “a claim of ineffectiveness that trial

counsel affirmatively recommended that the trial court impose a higher

sentence than the lower end of the correct standard range . . . has arguable

merit.” Harris II at 8 (emphasis in original). Because no evidentiary hearing

was conducted to determine whether trial counsel had a reasonable basis for

requesting a 120-month sentence, and because the retired trial judge was

unavailable to speak to whether trial counsel’s remarks caused prejudice to

Appellant, we were unable to rule on trial counsel’s ineffectiveness. Id. at 8-


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J-S68029-16


9; see Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (to prevail

on a claim of ineffective assistance of counsel, a PCRA petitioner must allege

and prove that the underlying legal claim has arguable merit, that counsel

had no reasonable strategic basis for his action, and that the petitioner was

prejudiced by counsel’s action or inaction).

      We also held that PCRA counsel was ineffective for misstating

Appellant’s PCRA issue. Harris II at 9-12. That mischaracterization, upon

which the PCRA court relied when dismissing the petition, undeniably

prejudiced Appellant. Id. at 11-12. We therefore vacated the order

dismissing the petition, remanded the case for an evidentiary hearing on

trial counsel’s ineffectiveness, and relinquished jurisdiction. Id. at 12.

      On August 10, 2015, the PCRA court appointed new counsel for

Appellant. PCRA Ct. Op., 6/3/16, at 3. On August 31, 2015, appointed

counsel filed an amended PCRA petition that presented the following issue:

“Was trial counsel ineffective for failing to argue the mitigated sentence or at

the very least, a minimum sentence?” Amended PCRA Pet., 8/31/15, at 1.

      The PCRA court conducted an evidentiary hearing on October 14,

2015. At the hearing, Appellant’s trial counsel testified that she did not ask

for a mitigated (78-month minimum) sentence, because it “wasn’t indicated

under the facts of the case.” N.T., 10/14/15, at 11. She explained that she

feared that if she had asked for an unreasonably low sentence, the

Commonwealth would have argued for a higher sentence, id. at 25, or the


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J-S68029-16


judge might have punished her client with a higher sentence. Id. at 19. She

believed a ten to twenty year sentence was low for what Appellant could

expect for his conviction, “especially in Allegheny County where twenty to

forty is almost standard.” Id. at 10. She felt “leaving it to the judge’s

discretion would have absolutely ended at a twenty to forty [year] sentence,

whereas asking for a specific sentence, there was a chance he would not be

sentenced to the top end of the standard range, if you will.” Id.

      The PCRA court dismissed Appellant’s amended petition on January 21,

2016. PCRA Ct. Op., 6/3/16, at 4. In its opinion, the PCRA court noted the

following from the evidentiary hearing:

      1. [Appellant’s trial counsel] testified that she asked for a
      sentence of ten to twenty years, which she believed was
      appropriate under the circumstances, albeit a low sentence for
      someone convicted of third degree murder. According to [trial
      counsel], in Allegheny County, twenty to forty years is almost
      standard for murder in the third degree. She felt that if she left it
      to the judge’s discretion, it would have absolutely ended up at a
      twenty to forty year sentence. She felt that if she asked for a
      specific sentence, there was a chance he would not be sentenced
      to the top end of the standard range. She further testified, based
      on her years of legal experience, a mitigated range sentence was
      not indicated under the facts of the case.

      2. Her decision to ask for ten to twenty years instead of 78
      months (the mitigated range) or 90 months (the low end of the
      standard range) was based upon what she believed was
      appropriate under the circumstances.

      3. [Appellant’s trial counsel] feared if she asked for a mitigated-
      range sentence, the Commonwealth would argue for the higher
      sentence of twenty to forty years.

      4. The Court asked [trial counsel] if one of the reasons she
      asked for a specific range was to try and remove or take out of

                                      -8-
J-S68029-16


      the judge’s consideration the higher range sentence in the
      standard guidelines. Her answer was that was one of the
      reasons, because she did not believe 20-40 years was
      appropriate for [Appellant]. [Trial counsel] emphasized to
      maintain her credibility with the court, she did not argue for
      either a mitigated or low range in the standard range.

      5. The Court next asked her if it was her rationale and strategy
      that if she asked for a lower-range sentence, 90-180 or plus, the
      judge might say a higher sentence is what he’d get, 240-480.
      She answered yes; and

      6. The Court then asked her if she took a bold approach and
      asked for something in the middle rather than the low end or
      high end to reduce the likelihood of the higher range. She
      stated, “That’s correct.”

PCRA Ct. Op., 6/3/16, at 8-9 (citations to the record omitted). The PCRA

court held that Appellant failed to prove the second prong of the

ineffectiveness test (that trial counsel lacked a reasonable basis for her

actions):

      [Appellant’s trial counsel] abundantly explained her trial strategy
      and why she asked for a sentence above the mitigated range
      and lower end of the standard range. Counsel was trying to
      protect her client from receiving a 20-40 year sentence.
      Counsel’s actions were reasonable.

Id. at 9. The PCRA court stated that it dismissed Appellant’s petition solely

on the basis of the reasonable basis prong, and did not make a finding

regarding prejudice to Appellant. Id. at 10.

      Appellant, through his appointed counsel, timely appealed from the

order dismissing his amended petition on February 10, 2016, and it is that

appeal that is now before this Court. Notice of Appeal, 2/10/16. On February

17, 2016, the PCRA court ordered Appellant to file a Concise Statement of

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J-S68029-16


Errors Complained of on Appeal, pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure. Order, 2/17/16. Appellant filed

his Concise Statement on February 23, 2016. Statement, 2/23/16. In his

brief to this Court, Appellant raises the following question:

      Did trial counsel render ineffective assistance by failing to fully
      advocate for [Appellant] by weighing what she perceived the
      sentencing court would think over [Appellant’s] own interests
      and then asking the sentencing court to apply a sentence that is
      higher than the bottom of the standard range?

Appellant’s Brief at 2.

      Appellant argues that “All of the evidence [that trial counsel]

presented on behalf of her client were all good points that called for her to

ask for a mitigated sentence or at worst, a bottom of the standard range

sentence.” Id. at 5-6. Appellant claims that in suggesting a 120-month

minimum sentence rather than a 90-month or 78-month minimum sentence,

“[t]rial counsel took on a quasi-judicial role by coming up with a number

that she believed was something that the judge and Commonwealth would

accept.” Id. at 4. Appellant contends that trial counsel violated Appellant’s

Sixth Amendment right to effective counsel by (1) failing to engage in the

adversarial process, citing United States v. Cronic, 466 U.S. 648 (1984),

and (2) preventing the sentencing court from exercising its discretion in

Appellant’s favor, citing United States v. Castro, 26 F.3d 557 (5th Cir.

1994), rehearing denied, 38 F.3d 759 (5th Cir. 1994).




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      Our standard of review of the dismissal of a PCRA petition is as

follows:

              We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court and
      the evidence of record. We will not disturb a PCRA court’s ruling
      if it is supported by evidence of record and is free of legal error.
      This Court may affirm a PCRA court’s decision on any grounds if
      the record supports it. Further, 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 plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      A petitioner claiming ineffective assistance of counsel must establish

the three prongs of the test from Commonwealth v. Pierce, 527 A.2d 973

(Pa. 1987): “(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.” Fears, 86 A.3d at 804

(citations omitted). Counsel is presumed effective, and a petitioner bears the

burden of proving otherwise. Id. If a petitioner fails to prove by a

preponderance of the evidence any of the Pierce prongs, the court need not

address the remaining prongs. Commonwealth v. Fitzgerald, 979 A.2d

908, 911 (Pa. Super. 2009), appeal denied, 990 A.2d 727 (Pa. 2010).

      With regard to the second prong, a petitioner must prove that his

counsel failed to pursue an alternative course of action which “offered a

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potential for success substantially greater than the course actually pursued.”

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) (citation omitted).

However,

      The test is not whether other alternatives were more reasonable,
      employing a hindsight evaluation of the record. Although weigh
      the alternatives we must, the balance tips in favor of a finding of
      effective assistance as soon as it is determined that trial
      counsel’s decision had any reasonable basis.

Pierce, 527 A.2d at 975 (citation omitted). Counsel will not be found

ineffective “if the decision to follow a particular course of action was

reasonably based and was not the result of sloth or ignorance of available

alternatives.   Counsel’s   approach    must    be   so   unreasonable   that   no

competent lawyer would have chosen it.” Commonwealth v. Loner, 836

A.2d 125, 132–33 (Pa. Super. 2003) (internal quotation marks and citations

omitted), appeal denied, 852 A.2d 311 (Pa. 2004).

      Specifically, the decision of whether to present a particular defense “is

a tactical one and will not be deemed ineffective stewardship if there is a

reasonable basis for that position.” Commonwealth v. Blair, 421 A.2d 656,

660 (Pa. 1980); see, e.g., Commonwealth v. Rainey, 656 A.2d 1326,

1330-31 (Pa. 1995) (trial counsel’s strategic concession of guilt on second-

degree murder rather than pursuit of acquittal was deemed reasonable),

cert. denied, 116 S.Ct. 562 (1995); Commonwealth v. Davenport, 431

A.2d 982, 984 (Pa. 1981) (counsel’s promotion of self-defense theory over

pursuit of voluntary intoxication defense was reasonable). An appellate


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court’s evaluation of counsel’s performance and the reasonableness of her

decisions is highly deferential, Commonwealth v. Rega, 933 A.2d 997,

1025 (Pa. 2007), cert. denied, 552 U.S. 1316 (2008), and an appellate

court “will not substitute its determination for that of counsel as to what

course of action would have been more effective in promoting the client's

interest.” Commonwealth v. Blair, 421 A.2d 656, 660 (Pa. 1980).

     Under Pennsylvania law, a sentencing judge generally has broad

discretion in fashioning a sentence. Commonwealth v. Hoch, 936 A.2d

515, 519 (Pa. Super. 2007). While a judge is obligated to consider the

ranges prescribed by the guidelines of the Pennsylvania Commission on

Sentencing, the judge may depart from the sentencing guidelines. 42

Pa.C.S. § 9721(b). If there are mitigating or aggravating circumstances

present, a judge may select a sentence in the mitigated or aggravated

range, 204 Pa. Code § 303.13, 42 Pa.C.S. § 9721, but a judge is not

required to sentence in the mitigated or aggravated range, even when

presented with mitigating or aggravating circumstances. Commonwealth v.

Wright, 600 A.2d 1289, 1291-92 (Pa. Super. 1991). The judge must

consider the gravity of the offense as it relates to the impact on the life of

the victim and on the community, the need for public protection, and the

defendant’s need for rehabilitation. 42 Pa.C.S. § 9721(b); Commonwealth

v. Walls, 926 A.2d 957, 962 (Pa. 2007).




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       At the time of sentencing, the judge must afford counsel for both

parties the opportunity to present arguments and information relative to

sentencing. Pa.R.Crim.P. 704(C)(1) (emphasis added). It follows, therefore,

that counsel’s role at sentencing is to ensure that the sentencing judge is

fully equipped to consider all the requisite aspects of sentencing, and that

counsel’s arguments should be designed to aid the judge in considering the

appropriate factors and in crafting a sentence in accordance with the law.

Counsel may be found ineffective, for example, for failing to (1) correct

erroneously high sentencing guidelines, Barnes, 593 A.2d at 871; (2)

investigate or present mitigation evidence, Commonwealth v. Martin, 5

A.3d 177, 204 (Pa. 2010), cert. denied, 563 U.S. 1035 (2011); or (3)

request a presentence investigation and report,          Commonwealth        v.

Johnson, 517 A.2d 1311, 1317 (Pa. 1986). The ultimate discretion,

however, remains with the sentencing judge, who may completely disregard

a sentence recommended by counsel if circumstances so require.6

       In the instant case, the trial court conducted an evidentiary hearing to

determine whether Appellant’s trial counsel lacked a reasonable basis for
____________________________________________


6
  A judge may also disregard the sentence recommended by the pre-
sentence or psychiatric reports. See Pa.R.Crim.P. 702(A)(1) (a sentencing
judge has discretion to order a pre-sentence investigation report);
Commonwealth v. Goggins, 748 A.2d 721, 729 (Pa. Super. 2000) (stating
one of the essential elements of a presentence investigation report includes
specific recommendations as to the sentence if the sentencing court has so
requested).




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suggesting a 120-month minimum sentence. To succeed on his claim,

Appellant was required to prove that an alternative course of action available

to his trial attorney — here, requesting a 90-month sentence — offered a

potential for success substantially greater than requesting a 120-month

sentence. See Paddy, 15 A.3d at 442. As evidenced by her statements at

the hearing, counsel’s choice to request a sentence of 120 months was not

born of sloth or ignorance, Loner, 836 A.2d at 132–33, but of intention,

experience, and strategy. We note that Appellant’s sentence falls not even at

the midpoint of the standard range, but twenty percent from the low end. 7

Trial counsel’s strategy was successful, and her reasoning was sound.8 We

hold that the PCRA court did not err in finding that Appellant failed to prove

the second prong of the ineffectiveness test.9


____________________________________________


7
 The standard range is 90 to 240 months; the midpoint would be a sentence
of a minimum of 165 months; Appellant received a minimum sentence of
120 months.
8
  We are not persuaded that Appellant’s trial counsel was obligated to ask for
a mitigated sentence, and find this claim to be without legal merit.
Appellant’s main contention for why he deserved a sentence in the mitigated
range is based on his lack of a criminal history; however, a judge may not
deviate below the sentencing guideline ranges based solely on a defendant’s
clean criminal record, because credit for a clean record is already given
under the guidelines in the defendant’s prior record score. Commonwealth
v. Smith, 673 A.2d 893, 895 (Pa. 1996).
9
 Because we affirm on this basis, we need not examine whether Appellant
suffered any prejudice because of counsel’s actions. See Fitzgerald, 979
A.2d at 911 (stating that if a petitioner fails to prove by a preponderance of
(Footnote Continued Next Page)


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      Appellant’s      argument      that    his     trial   counsel   violated   his   Sixth

Amendment right to effective counsel by failing to engage in the adversarial

process is without merit. Appellant contends that his trial counsel was so

ineffective that he should be presumed to have been prejudiced and to have

been the victim of ineffectiveness per se; but an analysis pursuant to United

States v. Cronic, 466 U.S. 648 (1984), which applies to cases in which the

denial of counsel is so apparent that prejudice to a defendant is presumed, is

not appropriate here. See Commonwealth’s Brief at 14-17. Few cases fall

within the purview of Cronic, such as those in which counsel was prevented

from cross-examining witnesses, or counsel completely failed to challenge

the prosecution’s case. Commonwealth v. Williams, 9 A.3d 613, 619 (Pa.

2010). A Cronic analysis “is limited to situations where counsel's failure is

complete, i.e., where counsel has entirely failed to function as the client's

advocate.” Commonwealth v. Mallory, 941 A.2d 686, 700 (Pa. 2008)

(citation and quotation marks omitted), cert. denied, 555 U.S. 884 (2008).

A Cronic analysis is not applicable, for example, where an attorney fails to

adduce mitigating evidence at a capital sentencing, Bell v. Cone, 535 U.S.

685, 696–98 (2002), or where counsel strategically concedes guilt of a

lesser charge during a closing statement. Commonwealth v. Cousin, 888

A.2d 710, 719 (Pa. 2005). Cronic does not apply where, as here, counsel
                       _______________________
(Footnote Continued)

the evidence any of the Pierce prongs, the court need not address the
remaining prongs).



                                            - 16 -
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was   present     and    meaningfully     participated   in   Appellant’s   sentencing

proceeding, and strategically conceded to a sentence of imprisonment higher

than the bare minimum. 10 Thus, Appellant failed to establish counsel’s

alleged error was so significant it should be deemed per se ineffective

assistance of counsel.

       Appellant’s argument that his trial counsel prevented the sentencing

court from exercising its discretion in Appellant’s favor also fails. The case

cited by Appellant, United States v. Castro, 26 F.3d 557 (5th Cir. 1994), is

factually distinguishable. In that case, the Fifth Circuit held that a failure to

request Judicial Recommendation Against Deportation (JRAD) from the

sentencing     court    could     constitute   ineffective    assistance    under   an

ineffectiveness analysis because, without a request for a JRAD, the

sentencing court was not aware it could grant one. Id. at 562. Moreover,

with limited exceptions not pertinent here, federal court decisions are not

binding on this Court. NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52

A.3d 296, 303 (Pa. Super. 2012). Here, Appellant’s trial counsel ensured

that the sentencing judge was aware of the applicable guidelines range and

of all sentencing factors that weighed in Appellant’s favor. The trial judge is
____________________________________________


10
  Moreover, Appellant’s brief does not present a meaningful analysis of why
the Cronic exception to the ineffectiveness test should apply, and to that
extent that aspect of his claim is waived. See Commonwealth v. Furrer,
48 A.3d 1279, 1281 n.3 (Pa. Super. 2012) (issues not developed in an
appellate brief with pertinent authority are waived, citing Pa.R.A.P. 2119(a)),
appeal denied, 62 A.3d 378 (Pa. 2013).



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not beholden to counsel’s recommended sentence, and there is no reason to

believe that the court could not or would not have sentenced Appellant to a

lower sentence than that requested by counsel.

     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2016




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