J-S53015-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

CHRISTIAN SCOTT THOMAS

                         Appellant                    No. 99 MDA 2016


               Appeal from the PCRA Order December 21, 2015
              In the Court of Common Pleas of Lancaster County
                          Criminal Division at No(s):
                           CP-36-CR-0000805-2001
                           CP-36-CR-0001147-2001
                           CP-36-CR-0002928-2001
                           CP-36-CR-0002950-2001
                           CP-36-CR-0002952-2001
                           CP-36-CR-0003050-2001
                           CP-36-CR-0003140-2001



BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                           FILED AUGUST 16, 2016

      Christian Scott Thomas appeals from the denial of his petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”). We

affirm.

      We previously set forth the relevant factual and procedural history:

      Throughout the time from May 13, 2000 to January 19, 2001,
      [Appellant] committed numerous counts of burglary, robbery,




* Former Justice specially assigned to the Superior Court.
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       and rape. [Appellant] was 14 and 15 years old during the time
       of his offenses. On June 6, 2003, [Appellant] entered a guilty
       plea and was later sentenced to 66-150 years’ incarceration.1
       This Court affirmed the initial sentencing on August 6, 2004.

       After the decision by this Court to affirm the original sentence
       imposed by the trial court, [Appellant] filed a writ of habeas
       corpus in the United States District Court for the Eastern District
       of Pennsylvania. The District Court ordered that the trial court
       resentence [Appellant].     The District Court held that the
       aggregate sentence of 66-150 violated [Appellant’s] rights
       against cruel and unusual punishment based upon the United
       States Supreme Court decision in Graham v. Florida, 560 U.S.
       48, 75 (2010). On October 2, 2013, the trial court resentenced
       [Appellant] to a new aggregate sentence of 40-80 years’
       incarceration.

Commonwealth v. Thomas, 105 A.3d 32 (Pa.Super. 2014) (unpublished

memorandum at 1). We affirmed Appellant’s second judgment of sentence,

finding that it afforded him a reasonable opportunity to be released during

his lifetime.    Id. at 2.     On December 3, 2014, Appellant filed a pro se

petition for collateral relief. The court appointed new counsel, and on March

6, 2015, counsel filed an amended PCRA petition, which asserted that he

was denied effective assistance of counsel during his October 2013

resentencing. An evidentiary hearing followed on August 24, 2015.

       During the evidentiary hearing, Appellant offered the testimony of

Barbara Clingan, Appellant’s former teacher, and Danielle Thomas, his sister.

____________________________________________


1
  Appellant pled guilty to nine counts of robbery, three counts of burglary,
two counts of rape, one count of criminal conspiracy, and pled nolo
contendere to individual counts of burglary, robbery, and indecent assault.



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Ms. Clingan testified that she had been in contact with Appellant for ten

years. She noted that Appellant began mentoring wayward juveniles during

that time, and that he assisted fellow inmates with legal issues, and she

highlighted his educational achievements. Ms. Clingan opined that Appellant

had matured during his incarceration. Ms. Thomas observed that Appellant

focused on his education and became more patient while incarcerated.

Following the hearing, the PCRA court denied Appellant’s petition.        This

timely appeal followed.

      Appellant presents one question for our review, “Whether the court

below erred when it denied post-conviction relief for ineffective assistance of

counsel where, at resentencing, after a remand, counsel failed to present

readily available evidence of Appellant’s maturation, rehabilitation and

improvement since his convictions in 2002-03, at age 15, and in failing to

object to the dispensation of a Presentence Report.” Appellant’s brief at 4.

      Our standard of review for an order denying post-conviction relief is

limited to whether the record supports the PCRA court’s determination, and

whether that decision is free of legal error.   Commonwealth v. Walters,

135 A.3d 589, 591 (Pa.Super. 2016) (citation omitted).      The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record. Id. We view the findings of the PCRA court and the

evidence of record in the light most favorable to the prevailing party.

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.Super. 2015) (citation

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omitted).   The PCRA court’s credibility determinations, when supported by

the record, are binding on this Court; however, we apply a de novo standard

of review to the PCRA court’s legal conclusions. Id.

      Pennsylvania    courts   utilize    a    three-factor   test   regarding   the

effectiveness of counsel. A petitioner must establish all of the following:

      (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 such
      that there is a reasonable probability that the result of the
      proceeding would have been different absent such error.

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa.Super. 2015) (citation

omitted). Failure to satisfy any prong of this test requires rejection of the

claim. Id. Furthermore, “trial counsel is presumed to be effective, and a

PCRA petitioner bears the burden of pleading and proving each of the three

factors by a preponderance of the evidence.” Id. To demonstrate prejudice,

Appellant “must show there is some reasonable probability that, but for

counsel’s error, the outcome of the proceeding would have been different.”

Commonwealth v. Michaud, 70 A.2d 862, 867 (Pa.Super. 2013).

Moreover, “when it is clear the party asserting an ineffectiveness claim has

failed to meet the prejudice prong of the ineffectiveness test, the claim may

be dismissed on that basis alone[.]” Id.

      Appellant contends resentencing counsel failed to offer witnesses and

documentary evidence tending to support his maturation and rehabilitation.

Appellant’s brief at 10. Specifically, he asserts resentencing counsel failed to

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present a former teacher with whom he maintained communication, his

sister, and an exhibit of diplomas evincing his educational achievements.

Id. Appellant additionally asserts that resentencing counsel did not request

a presentence report, which he maintains would have also provided evidence

of his rehabilitation and maturation.   Id.   Without explicitly arguing the

point, Appellant concludes that resentencing counsel’s failings resulted in

imposition of a harsher sentence.

      We find no prejudice in resentencing counsel’s failure to call the

aforementioned witnesses. Their testimony at the PCRA hearing, i.e., that

Appellant had dedicated himself to assisting troubled youths and fellow

inmates, achieved academic success, and matured during incarceration,

merely confirmed what counsel represented and Appellant testified to at

resentencing.

      Counsel apprised the resentencing court of Appellant’s numerous

educational accomplishments, including receipt of his high school diploma,

and certification in vocational skills such as construction, plumbing, and

painting. Counsel also noted that Appellant participated in a program where

he shared his experiences with juvenile offenders. Appellant testified on his

own behalf and emphasized his work with troubled youths, his ongoing

communication with a mentor, his educational accomplishments, and his

participation in counseling.   He asserted that he spent his time trying to

“better himself.” N.T. Resentencing, 10/2/13, at 3. Appellant implored the

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court to provide him an opportunity to “try in society to do the same thing

as I’m doing in prison.” Id. at 4.

      After hearing Appellant’s testimony, the court, referring to Appellant,

opined that, “you sound completely different than you did. You were a very

angry young man at the time I was doing your sentencing.”                   N.T.

Resentencing, 10/2/13, at 5. The court added, “I wanted to hear what you

had to say. The kind of number I had in my mind I actually lowered a little

bit because I think that you sounded good here today.” Id. This exchange

reveals   the    court   was   persuaded   by   the   evidence   of   Appellant’s

demonstrated maturation and rehabilitation, and, accordingly, fashioned a

more lenient sentence than originally contemplated.

      In sum, after reviewing the record, Appellant has failed to prove how

the testimony of his former teacher and his sister, an exhibit displaying his

educational achievements, or a new presentence report would have

augmented this evidence and resulted in a lower sentence. Appellant simply

failed to establish how he was prejudiced by counsel’s failure to adduce this

evidence.       Furthermore, Appellant presented no evidence that a new

presentence investigation would have contained additional information not

otherwise elicited at the resentencing hearing.       Rather, Appellant merely

opines, “If counsel wasn’t going to make a case for his client’s maturation

and rehabilitation, then perhaps the Adult Probation Department that

prepares presentence reports might have.”             Appellant’s brief at 10.

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Appellant does not indicate how a new presentence report would have

further   supported    his   claimed   maturation    and      rehabilitation.   See

Commonwealth v. Johnson, 517 A.2d 1311, 1317 (Pa.Super. 1986)

(holding the failure to request a pre-sentence report is not per se ineffective,

but rather, ineffectiveness “will only be found when the contents of the

report would have caused the sentencing judge to impose a lesser

sentence.”).

      Notably, Judge Madenspacher presided over many of Appellant’s

numerous motions, petitions, and hearings, including his original sentencing

in 2003, and observed Appellant’s maturation first hand, as indicated by his

statements above. Nevertheless, the court opined that he was not surprised

Appellant succeeded in the structured prison environment.              He cautioned

that, if released early, “[Appellant] would re-offend, be placed back into

instructional conferment and do well again.” Trial Court Opinion, 12/22/15,

at (unnumbered page) 3.        Hence, further evidence regarding Appellant’s

success while incarcerated would not have resulted in a lower sentence.

      In 2003, Appellant entered a guilty plea to fifteen charges and was

sentenced to sixty-six to one-hundred-and-fifty years incarceration.            After

considering the evidence proffered by Appellant, the court resentenced

Appellant to forty to eighty years incarceration, with credit for time served.

Since Appellant failed to demonstrate prejudice from resentencing counsel’s

alleged failings, we find no error in the denial of relief.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2016




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