J-S18006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

PHILIP BURNETT,

                         Appellant                   No. 2451 EDA 2013


            Appeal from the PCRA Order Entered August 2, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0014531-2007


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED MARCH 27, 2015

      Appellant, Philip Burnett, appeals from the post-conviction court’s

August 2, 2013 order denying his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.             On appeal,

Appellant presents one claim of ineffective assistance of counsel (IAC). We

affirm.

      The PCRA court set forth the procedural history of Appellant’s case, as

follows:

            In March 2008, [A]ppellant entered a guilty plea before
      this [c]ourt to [p]ossession of a [c]ontrolled [s]ubstance with
      [i]ntent to [d]eliver. Appellant was purportedly found with 81
      packets of crack cocaine in his vehicle. [] [A]ppellant was
      sentenced to a term of one year intermediate punishment served
      predominately in a residential drug and alcohol treatment
      program, followed by a consecutive term of two years[’]
      probation. On January 7, 2009, [A]ppellant was arrested for and
      ultimately convicted of [b]urglary, [r]obbery and conspiracy for,
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       inter alia, forcing his way into a female victim’s home and
       robbing her at gunpoint in front of her three young children.

             This [c]ourt revoked [A]ppellant’s] probation and
       sentenced him to a term of imprisonment of three (3) to six (6)
       years and stating as follows:

          The Court: “All right [Appellant], I am sure I told you when
          I placed you into the Intermediate Punishment Program to
          stay out of trouble. And, in fact, I am looking at my notes
          and when I put you in the Program, you already had a
          mandatory case and you were given a break by being
          placed into the Program.

             Obviously, you did not take advantage of any of this.
          Therefore, I am going to revoke your probation. I am
          going to sentence you to 3 to 6 years and that is to run
          consecutive to whatever you are serving.” (See N.T.
          10/7/09, p. 5)

              On April 19, 2010, Appellant filed a pro se PCRA petition….
       Counsel was ultimately appointed and filed an [a]mended
       [p]etition. The Commonwealth [r]esponded. This Court, after
       evaluation and review, denied Appellant[] [r]elief and
       [d]ismissed the PCRA [p]etition on August [2], 2013[,] …
       without a [h]earing.[1] … Appellant filed his [n]otice of [a]ppeal
       to the Superior Court on August 29, 2013. A [s]tatement of
       [m]atters [c]omplained of on [a]ppeal pursuant to Pa.R.A.P.
       1925(b) was timely filed on May 28, 2014.

PCRA Court Opinion (PCO), 7/21/14, at 1-3 (emphasis omitted).

       On appeal, Appellant raises the following question for our review: “Did

the Honorable PCRA Court err when it dismissed [Appellant’s] Amended

PCRA Petition without a hearing, and all where [Appellant] properly pled,




____________________________________________


1
  We note that the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent
to dismiss Appellant’s petition on May 17, 2013.



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and could have proved, that he was entitled to relief as the result of

counsel’s ineffectiveness?” Appellant’s Brief at 3.

        Before addressing the specifics of Appellant’s argument, we note that

“[t]his Court’s standard of review from the grant or denial of post-conviction

relief is limited to examining whether the lower court’s determination is

supported by the evidence of record and whether it is free of legal error.”

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997) (citing

Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where,

as here, a petitioner presents an IAC claim, our Supreme Court has stated

that:

        To establish ineffective assistance of counsel, a petitioner must
        demonstrate, by a preponderance of the evidence, that: (1) the
        underlying claim is of arguable merit; (2) no reasonable basis
        existed for counsel's action or omission; and (3) there is a
        reasonable probability that the result of the proceeding would
        have been different absent such error. Commonwealth v.
        Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127 (Pa. 2011)
        (employing ineffective assistance of counsel test from
        Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975–76
        (Pa.1987)). If a petitioner fails to satisfy any prong of the
        ineffectiveness inquiry, a claim of ineffective assistance of
        counsel will be rejected. Commonwealth v. Sattazahn, 597
        Pa. 648, 952 A.2d 640, 653 (Pa.2008) (citation omitted).

Commonwealth v. Eichinger, 2014 WL 7404546, at *4 (Pa. Dec. 31,

2014) (footnote omitted).

        In Appellant’s PCRA petition, he asserted that the attorney who

represented him during the violation of probation (VOP) proceedings acted

ineffectively by not filing a motion for reconsideration of Appellant’s VOP



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sentence of 3 to 6 years’ incarceration, despite Appellant’s request that

counsel do so.    Appellant maintained that counsel’s failure in this regard

constituted per se ineffectiveness, similar to when counsel fails to file a

requested direct appeal on a defendant’s behalf.   See Commonwealth v.

Lantzy, 736 A.2d 564, 572 (Pa. 1999) (holding “that, where there is an

unjustified failure to file a requested direct appeal, the conduct of counsel

falls beneath the range of competence demanded of attorneys” and,

therefore, “the petitioner is not required to establish his innocence or

demonstrate the merits of the issue or issues which would have been raised

on appeal”). Proceeding under the Lantzy ‘per se ineffectiveness’ standard,

Appellant did not explain in his PCRA petition what claims he would have

presented in a motion for reconsideration of his sentence, or argue why the

VOP court would have granted that motion and imposed a more favorable

term of incarceration.

      In rejecting Appellant’s IAC claim, the PCRA court concluded that

Appellant did have to satisfy the three-pronged Pierce test, “including

demonstrating that any foregone motion had merit, and that defendant was

prejudiced by counsel’s inaction, i.e., that a motion to reconsider sentence

likely would have been granted if filed.” PCO at 4 (citation omitted).

Because Appellant made no attempt to meet this burden, the PCRA court

denied his petition for post-conviction relief.

      We ascertain no error in the PCRA court’s decision.      Our Supreme

Court has expressly rejected applying the Lantzy per se ineffectiveness

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standard to a claim that VOP counsel erred by not filing a motion for

reconsideration of sentence.   See Commonwealth v. Reaves, 923 A.2d

1119, 1127-1129 (Pa. 2007).      The Reaves Court concluded that to prove

such an IAC claim, the petitioner must satisfy the three-pronged Pierce

test, including demonstrating ‘actual prejudice.’   Id. at 1129.    In other

words, the petitioner must show “that a motion to reconsider sentence, if

filed …, would have led to a different and more favorable outcome at VOP

sentencing.” Id. at 1131-1132.

     Again, Appellant made no attempt in his PCRA petition to explain what

claim(s) he would have raised in a motion to reconsider his sentence, or

argue why the VOP court would have granted such a motion and imposed a

more favorable sentence. Appellant also fails to provide any such discussion

in his brief to this Court. Therefore, we conclude the PCRA court did not err

in denying his IAC claim.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2015




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