J-S47025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 DIOSDADO BAEZ                         :
                                       :
                   Appellant           :   No. 480 MDA 2019

           Appeal from the PCRA Order Entered March 18, 2019
  In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0000928-2017

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 DIOSDADO BAEZ                         :
                                       :
                   Appellant           :   No. 481 MDA 2019

           Appeal from the PCRA Order Entered March 18, 2019
  In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0001037-2017

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 DIOSDADO BAEZ                         :
                                       :
                   Appellant           :   No. 482 MDA 2019

           Appeal from the PCRA Order Entered March 18, 2019
  In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0001045-2017


BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
J-S47025-19



MEMORANDUM BY NICHOLS, J.:                         FILED OCTOBER 22, 2019

        Appellant Diosdado Baez appeals from the order denying his first, timely

Post Conviction Relief Act1 (PCRA) petition following an evidentiary hearing.

Appellant’s PCRA counsel has filed a petition to withdraw in this Court and a

Turner/Finley brief.2         We affirm and grant PCRA counsel’s petition to

withdraw.

        The underlying facts of this case are well known to the parties. Briefly,

on December 14, 2016, the Commonwealth charged Appellant with the

following offenses: delivery of heroin and criminal use of a communication

facility at docket number 1037-2017, delivery of Suboxone at docket number

1045-2017, and delivery of heroin and conspiracy at docket number 928-

2017.3 Id. The charges were based on separate events that occurred on June

7, June 9, and July 6 of 2016.On June 26, 2017, Appellant, who was

represented by trial counsel, entered an open guilty plea to all charges.

Appellant executed a written guilty plea colloquy in which he acknowledged

that there were no negotiated plea agreements.         See Written Guilty Plea

Colloquy, Docket Nos. 928-2017, 1037-2017, & 1045-2017, 6/26/17, at 4.

He also recognized that the judge would determine the sentence and could

____________________________________________


1   42 Pa.C.S. §§ 9541-9546.

2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

335 P.S. § 780-113(a)(30), 18 Pa.C.S. § 7512(a); 35 P.S. § 780-113(a)(30);
and 35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 903, respectively.

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J-S47025-19



impose the sentences consecutively. Id. at 4-5. Appellant confirmed that no

promises had been made to induce him to enter the guilty plea. Id. Appellant

also stated that he understood his post-sentence and appellate rights. Id. at

7. Trial counsel misstated the potential maximum sentence for all charges as

fifty-two rather than ninety-two years’ imprisonment when completing the

written colloquy form. See Written Guilty Plea Colloquy at 4.

      The trial court also conducted an oral colloquy. During its colloquy, the

trial court also misstated Appellant’s maximum sentencing exposure as fifty-

two years’ imprisonment. N.T. Guilty Plea Hr’g, 6/26/17, at 5.

      The trial court accepted Appellant’s guilty plea. See id. at 8. That same

day, the trial court sentenced Appellant to an aggregate term of six to fourteen

years’ incarceration, which included concurrent sentences of three to six years’

incarceration at 1037-2017 and 1045-2017, and a consecutive term of three

to eight years’ incarceration at 928-2017. Id. at 8-9. Trial counsel did not

file post-sentence motions or a direct appeal.

      Appellant timely filed a pro se PCRA petition, which was postmarked on

July 26, 2018. Appellant argued that his sentence was illegal because the

drug delivery charges should have merged at sentencing. Appellant’s Pro Se

PCRA Pet., 7/26/18, at 7. He asserted that the trial court should have imposed

three concurrent sentences for a total of three to eight years’ incarceration.

Id. Appellant also argued that trial counsel provided ineffective assistance by

(1) advising him to decline the Commonwealth’s offer of five-to-ten years’

incarceration and to enter an open plea based on trial counsel’s assurance that

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J-S47025-19



she “would obtain” an aggregate sentence of two-to-four years’ incarceration,

and (2) failing to file a requested direct appeal. Id.

      The PCRA court appointed counsel, who filed an amended PCRA petition.

Therein, Appellant argued that trial counsel was ineffective for failing to file a

post-sentence motion or a direct appeal.       Am. PCRA Pet., 11/14/18, at 3

(unpaginated).    Appellant also asserted that trial counsel misinformed him

about the maximum sentences for each charge, and that, had he been

appropriately advised, “he would have accepted the Commonwealth’s

[negotiated plea offer] rather than rely on [trial] counsel’s word that he would

‘get less’ with an open plea.” Id.

      The Commonwealth filed a response requesting an evidentiary hearing

because there was “an insufficient record on which to adequately respond” to

Appellant’s petition.   Commonwealth’s Resp. to PCRA Pet., 12/13/18.           On

March 11, 2019, the PCRA court conducted an evidentiary hearing.

      At the hearing, trial counsel testified that the Commonwealth initially

offered Appellant a negotiated plea of five to ten years’ incarceration for all

three cases. N.T. PCRA Hr’g, 3/11/19 at 17. She stated that she conveyed

the offer to Appellant but believed Appellant could get less time if he entered

an open plea.    Id. at 21-22.    Trial counsel stated that “ultimately it was

[Appellant’s] choice . . . whether he wanted to take the plea agreement. I

don’t think that I swayed him one way or another.         I gave him all of the

information.”    Id. at 22.   However, trial counsel acknowledged that she

miscalculated Appellant’s maximum sentence exposure as fifty-two years,

                                      -4-
J-S47025-19



rather than ninety-two years. Id. at 27-30. Trial counsel testified that she

reviewed the guilty plea colloquy with Appellant, but he did not have any

questions about his post-sentence rights. Id. at 41-42.

      Trial counsel also testified that she met with Appellant in a holding cell

after the sentencing hearing.     Id. at 35, 43.     She recalled apologizing to

Appellant because “he got more than what was offered.” Id. Trial counsel

explained that although Appellant was upset about the sentence, he never

asked her to file a post-sentence motion or a direct appeal. Id. at 35-36, 39.

She did not remember Appellant asking her to attempt to get back the

Commonwealth’s original plea offer. Id. at 36. When asked why she did not

file a post-sentence motion to preserve a discretionary sentencing claim, trial

counsel stated: “If a client wants us to file a post-sentence motion, then we

file a post-sentence motion. If a client does not tell us to file a post-sentence

motion, then we don’t file a post-sentence motion.” Id. at 37.

      Trial counsel testified that she “told [Appellant] that he received more

time than what was offered and that he could file an appeal if he wanted to.”

Id. at 43. However, she stated that Appellant did not ask her to file an appeal.

Id. at 39.   She stated that she instructed Appellant to let her know if he

wanted to file an appeal. Id. at 36. Although trial counsel did not follow up

with Appellant about a possible appeal after their meeting, she explained:

      If a client contacts me, then . . . based upon the communication,
      I will either do something or not do something. We have a prison
      liaison that goes to the prison daily to see clients. She’s known
      there. Clients know her. She’s done their in-takes and they can
      contact her if they don’t want to . . . fill out a general request form

                                       -5-
J-S47025-19


      at the prison. However, I received no information from our prison
      liaison, nor any general request form from [Appellant].

Id. at 40.

      Appellant also testified at the hearing.    He acknowledged that trial

counsel advised him of the Commonwealth’s plea offer, but trial counsel told

him that he “had better hope with doing an open plea.” Id. at 47. He stated

that he was “convinced” by trial counsel’s advice, and that if he had known

that he could get a sentence longer than five to ten years, he would not have

entered an open plea. Id. at 48. However, Appellant acknowledged that trial

counsel’s misstatement of the maximum penalty did not affect his decision to

accept the plea, as he knew he “wasn’t going to get the 52 or 92” maximum

sentence. Id. at 51, 52-53.

      Appellant testified that he met with trial counsel after sentencing, and

she said “I’m sorry, I didn’t expect him to give you [more] than what you

[were] looking at.” Id. at 55. He stated that he told trial counsel “I want my

sentence back” and instructed her to “put the paperwork in, get me in front

of the judge and get me back my time.” Id. at 55-56. He explained that

although he did not specifically indicate he wanted her to file a post-sentence

motion, “she knew what I meant.” Id. at 55. However, Appellant stated that

he never followed up with trial counsel about the appeal, as he “just believed

that she was doing what she was supposed to do.” Id. at 63.

      At the conclusion of the hearing, the PCRA court denied Appellant’s PCRA

petition.    On March 21, 2019, Appellant timely filed separate notices of



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J-S47025-19



Appellant at each docket number in compliance with Commonwealth v.

Walker, 185 A.3d 969 (Pa. 2018) (stating that “where a single order resolves

issues arising on more than one lower court docket, separate notices of appeal

must be filed”).    Thereafter, the PCRA court ordered Appellant to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant timely filed his Rule 1925(b) statement on April 5, 2019. The PCRA

court filed responsive opinions concluding that Appellant had failed to

demonstrate trial counsel’s ineffectiveness. PCRA Ct. Op., 5/3/19; PCRA Ct.

Am. Op., 5/8/19.

      PCRA counsel’s Turner/Finley brief identifies four issues, which we

address in the following order: (1) trial counsel was ineffective for advising

Appellant to enter an involuntary or unknowing guilty plea by promising a

specific sentence; (2) trial counsel unlawfully induced Appellant’s guilty plea

by failing to advise him regarding the maximum sentences he faced in an open

plea; (3) trial counsel was ineffective for failing to file post-sentence motions

or a direct appeal; and (4) Appellant’s sentence is illegal because the trial

court imposed consecutive sentences and failed to merge the charges at

different dockets. Turner/Finley Brief at 7-14. Appellant has not filed a pro

se brief or a counseled brief with new counsel.

      Before we address the issues identified by PCRA counsel, we must first

address whether PCRA counsel has fulfilled the procedural requirements for

withdrawing his representation. See Commonwealth v. Muzzy, 141 A.3d

509, 510 (Pa. Super. 2016) (stating that “[p]rior to addressing the merits of

                                      -7-
J-S47025-19



the appeal, we must review counsel’s compliance with the procedural

requirements for withdrawing as counsel”).

      As we have explained,

      [c]ounsel petitioning to withdraw from PCRA representation must
      proceed . . . under [Turner and Finley] and . . . must review the
      case zealously. Turner/Finley counsel must then submit a “no-
      merit” letter to the [PCRA] court, or brief on appeal to this Court,
      detailing the nature and extent of counsel’s diligent review of the
      case, listing the issues which petitioner wants to have reviewed,
      explaining why and how those issues lack merit, and requesting
      permission to withdraw.

         Counsel must also send to the petitioner: (1) a copy of the
         “no merit” letter/brief; (2) a copy of counsel’s petition to
         withdraw; and (3) a statement advising petitioner of the
         right to proceed pro se or by new counsel.

                                  *    *    *

         Where counsel submits a petition and no-merit letter that .
         . . satisfy the technical demands of Turner/Finley, the
         court—[PCRA] court or this Court—must then conduct its
         own review of the merits of the case. If the court agrees
         with counsel that the claims are without merit, the court will
         permit counsel to withdraw and deny relief.

Id. at 510-11 (citations omitted).

      Here, PCRA counsel’s application to withdraw and brief to this Court

detail his diligent review of the case and include the issues Appellant wishes

to have reviewed. PCRA counsel explains the reasons the issues lack merit

and requests permission to withdraw.            Additionally, PCRA counsel has

provided Appellant with a copy of the no-merit brief and application to

withdraw, and advised Appellant of his right to proceed pro se or with privately




                                      -8-
J-S47025-19



retained counsel in this appeal.4 Accordingly, we will review PCRA counsel’s

assessment that Appellant’s intended claims lack merit.

       PCRA counsel first identifies Appellant’s claim that counsel “misadvised

[him] into entering an involuntary or unknowing guilty plea by promising [him]

a specific sentence.” Turner/Finley Brief at 10. PCRA counsel maintains that

there is no evidence to support this contention. Id.

       Our review of the denial of a PCRA petition is limited to the examination

of “whether the PCRA court’s determination is supported by the record and

free of legal error.”     Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.

Super. 2014) (quotation marks and citation omitted). “A PCRA court passes

on witness credibility at PCRA hearings, and its credibility determinations

should be provided great deference by reviewing courts.” Commonwealth

v. Johnson, 966 A.2d 523, 539 (Pa. 2009) (citations omitted). “The PCRA

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

in the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.


____________________________________________


4 Initially, PCRA counsel’s no-merit letter indicated that Appellant could
proceed pro se or with private counsel “[i]n the event that the court grants
counsel’s application withdraw.” We concluded that PCRA counsel improperly
characterized Appellant’s ability to respond to counsel’s withdrawal petition
and no-merit letter as contingent on the granting of counsel’s petition.
Accordingly, by order of June 21, 2019, this Court directed counsel to provide
Appellant with a letter advising him of his immediate right to proceed pro se
or with private counsel, and to file copies of the letter with this Court. See
Muzzy, 141 A.3d at 510-11. PCRA counsel complied by filing a revised letter
on June 25, 2019.


                                           -9-
J-S47025-19


2014) (citation omitted). We review “the PCRA court’s legal conclusions de

novo.” See Miller, 102 A.3d at 992 (citation omitted).

      We    presume     that    the   petitioner’s   counsel    was    effective.

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). To establish

a claim of ineffectiveness, a petitioner “must show, by a preponderance of the

evidence, ineffective 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.” Commonwealth

v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted).           A

petitioner must establish (1) that the underlying claim has arguable merit; (2)

that counsel lacked a reasonable basis for his action or inaction; and (3) but

for the act or omission in question, the outcome of the proceedings would

have been different. Commonwealth v. Washington, 927 A.2d 586, 594

(Pa. 2007). “A claim of ineffectiveness may be denied by a showing that the

petitioner’s evidence fails to meet any of these prongs.” Id. (citation omitted).

      “Allegations of ineffectiveness in connection with the entry of a guilty

plea will serve as a basis for relief only if the ineffectiveness caused [the

defendant] to enter an involuntary or unknowing plea.” Commonwealth v.

Allen, 732 A.2d 582, 587 (Pa. 1999) (citation omitted). “Where the defendant

enters his plea on the advice of counsel, the voluntariness of the plea depends

on whether counsel’s advice was within the range of competence demanded




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of attorneys in criminal cases.” Commonwealth v. Kelley, 136 A.3d 1007,

1013 (Pa. Super. 2016) (citation omitted).

       Although not constitutionally mandated, a proper plea colloquy ensures

that   a   defendant’s   guilty   plea   is   truly   knowing   and   voluntary.

Commonwealth v. Maddox, 300 A.2d 503, 504 (Pa. 1973). “A valid plea

colloquy must delve into six areas: 1) the nature of the charges, 2) the factual

basis of the plea, 3) the right to a jury trial, 4) the presumption of innocence,

5) the sentencing ranges, and 6) the plea court’s power to deviate from any

recommended sentence.” Commonwealth v. Reid, 117 A.3d 777, 782 (Pa.

Super. 2015) (citation and quotation marks omitted).            “To determine a

defendant’s actual knowledge of the implications and rights associated with a

guilty plea, a court is free to consider the totality of the circumstances

surrounding the plea.” Allen, 732 A.2d at 588-89.

       Further, a trial court may supplement “the oral colloquy [with] a written

colloquy that is read, completed and signed by the defendant and made a part

of the plea proceedings.” Commonwealth v. Bedell, 954 A.2d 1209, 1212-

13 (Pa. Super. 2008) (citation omitted); see also Pa.R.Crim.P. 590 cmt. “A

person who elects to plead guilty is bound by the statements he makes in

open court while under oath and he may not later assert grounds for

withdrawing the plea which contradict the statements he made at his plea

colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003)

(citation omitted).


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      Here, Appellant has presented no evidence to support his claim that trial

counsel promised him a specific sentence in exchange for his plea. Further,

Appellant specifically acknowledged during the plea colloquy that there was

no plea agreement, that the judge would determine the sentence, and that no

promises had been made in exchange for his guilty plea. See Written Guilty

Plea Colloquy at 4-5; see also N.T. Guilty Plea Hr’g at 5-6. Given this record,

Appellant cannot now claim that his decision to plead guilty was based on trial

counsel’s promises. See Pollard, 832 A.2d at 523. Accordingly, we conclude

that Appellant’s first intended claim lacks arguable merit. See Washington,

927 A.2d at 594.

      In the second issue, PCRA counsel identifies Appellant’s claim that trial

counsel unlawfully induced his guilty plea by failing to provide the correct

maximum sentences he faced. Turner/Finley Brief at 14. However, PCRA

counsel notes that during the PCRA hearing, Appellant stated that he knew he

was not going to get the maximum sentence, and the misstatement of the

maximum “did not have an effect on [Appellant’s] decision to plead guilty.”

Id. at 17.

      We have explained that

         [t]he standard for post-sentence withdrawal of guilty pleas
         dovetails with the arguable merit/prejudice requirements
         for relief based on a claim of ineffective assistance of plea
         counsel, . . . under which the defendant must show that
         counsel’s deficient stewardship resulted in a manifest
         injustice, for example, by facilitating entry of an unknowing,
         involuntary, or unintelligent plea.         This standard is


                                     - 12 -
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         equivalent to the “manifest injustice” standard applicable to
         all post-sentence motions to withdraw a guilty plea.

Kelley, 136 A.3d at 1013 (citation omitted).

      However, we have held that not “every mistake in computing the

possible maximum or advising the defendant of the possible maximum will

amount to manifest injustice.” Commonwealth v. Barbosa, 819 A.2d 81,

83 (Pa. Super. 2003). Instead,

      the mistake must be material to the defendant’s decision to plead
      guilty.   This determination must be fact- and case-specific.
      Certainly, if a defendant were to plead guilty to avoid a death
      sentence when there is no possibility of a death sentence, then
      this mistake would clearly be material. On the other hand,
      suppose there were a robbery of five people together with
      conspiracy and weapons charges, and the defendant were told
      that he faced a maximum sentence of 70 to 140 years rather than
      65 to 130 years. If the plea negotiations resulted in a sentence
      of 5 to 10 years, then this mistake would not be material.

Id. at 83.

      Here, Appellant was improperly advised that the maximum sentence for

his plea was fifty-two years, rather than ninety-two years. See N.T. PCRA

Hr’g at 30; see also N.T. Guilty Plea Hr’g at 5. Nonetheless, at the PCRA

hearing, Appellant conceded that the maximum sentence did not affect his

decision to plead guilty, as he knew he would not receive the maximum

sentence. See N.T. PCRA Hr’g at 51, 52-53. Further, Appellant’s fourteen-

year maximum sentence did not exceed the incorrect fifty-two year maximum

set forth by trial counsel and the trial court. Accordingly, because Appellant




                                    - 13 -
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did not demonstrate that trial counsel’s mistake was material to his decision

to plead guilty, he cannot establish prejudice. See Barbosa, 819 A.2d at 83.

      The third issue identified by PCRA counsel focuses on Appellant’s claim

that trial counsel was ineffective for failing to file post-sentence motions or a

direct appeal. Turner/Finley Brief at 11-12. PCRA counsel notes that the

PCRA court credited trial counsel’s testimony that Appellant never requested

a post-sentence motion or a direct appeal. Id. at 13.

      Before a court will find counsel ineffective for failing to file a direct

appeal, the petitioner must prove that he requested an appeal and that

counsel disregarded that request. See Commonwealth v. Ousley, 21 A.3d

1238, 1244 (Pa. Super. 2011). When counsel fails to file a requested appeal,

“counsel is per se ineffective as the defendant was left with the functional

equivalent of no counsel.” Commonwealth v. Markowitz, 32 A.3d 706, 715

(Pa. Super. 2011) (footnote omitted).

      Here, the PCRA court addressed Appellant’s claim as follows:

      [B]oth Appellant and his [trial] counsel . . . testified regarding the
      discussion of a post-sentence motion. In her testimony, [trial]
      counsel indicated that she explained the appeal rights and process
      to Appellant, and that he did not want to pursue such an appeal.

                                 *      *     *

      When Appellant testified, he provided a different story, claiming
      that he told [trial] counsel that he wanted his “sentence back,”
      and that he told her to “put the paperwork in.” Appellant then
      claimed that he sat for over a year without ever following up on
      his apparent request to “put the paperwork in,” expecting that the
      appeal was already in motion without ever following up. The
      [PCRA] court found [trial] counsel’s testimony regarding her

                                     - 14 -
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      discussion with Appellant and the process of appealing a sentence
      more credible than Appellant’s testimony. Appellant’s statements
      on the conversation provided only a vague view of what he felt
      happened, and the court did not find his testimony about waiting
      a year before checking on an apparent appeal credible.

PCRA Ct. Amended Op., 5/8/19, at 1-2 (record citations and some

capitalization omitted).

      Following our review of the record, we discern no basis to disturb the

PCRA court’s determination. See Miller, 102 A.3d at 992. The PCRA court

found trial counsel’s testimony credible, and concluded that Appellant did not

request either a post-sentence motion or a direct appeal.      In light of the

relevant case law and applicable standard of review, Appellant is not entitled

to relief on his claim. See id.; see also Johnson, 966 A.2d at 539.

      Lastly, PCRA counsel identifies Appellant’s claim that his sentence was

illegal because trial court should have merged his drug delivery convictions

and imposed the sentences concurrently. Turner/Finley Brief at 8. PCRA

counsel maintains that merger was inapplicable because Appellant’s charges

were based on separate crimes committed at different places and times. Id.

at 8-9. Further, PCRA counsel refers to Appellant’s intended claim that the

trial court should have imposed concurrent sentences. Id. at 10.

      Initially, we note that whether convictions merge for sentencing

purposes involves the legality of a sentence. Commonwealth v. Baldwin,

985 A.2d 830, 833 (Pa. 2009). Therefore, our standard of review is de novo

and our scope of review is plenary. Id. (citation omitted). Our Supreme Court

has explained that Section 9765 “prohibits merger unless two distinct facts

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are present: 1) the crimes arise from a single criminal act; and 2) all of the

statutory elements of one of the offenses are included in the statutory

elements of the other.” Id.; see also 42 Pa.C.S. § 9765.

      Here, Appellant pled guilty to offenses at three different dockets,

relating to three different criminal acts: delivering heroin on June 7, 2016,

delivering Suboxone on June 9, 2016, and delivering heroin on July 6, 2016.

See Criminal Information at 1037-2017, 1045-2017, 928-2017.             Because

different facts supported the convictions for each count of drug delivery, the

trial court did not err in concluding that merger did not apply. See Baldwin,

985 A.2d at 833.

      To the extent Appellant argues that the trial court should have imposed

concurrent terms of incarceration, it is a challenge to the discretionary aspects

of his sentence. See Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super.

2013).   “Challenges to the discretionary aspects of sentencing are not

cognizable under the PCRA.” Commonwealth v. Fowler, 930 A.2d 586, 593

(Pa. Super. 2007) (citing 42 Pa.C.S. § 9543(a)(2)(vii)).

      In any event, the PCRA court concluded that Appellant did not ask trial

counsel to file a post-sentence motion on his behalf. Further, even if Appellant

established that trial counsel disregarded his request for a post-sentence

motion, his underlying claim does not present a substantial question for our

review. See Dodge, 77 A.3d at 1270 (stating that “a defendant may raise a

substantial question where he receives consecutive sentences within the


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J-S47025-19


guideline ranges if the case involves circumstances where the application of

the guidelines would be clearly unreasonable, resulting in an excessive

sentence” but noting that “a bald claim of excessiveness due to the

consecutive nature of a sentence will not raise a substantial question”).

Because Appellant’s claim would not entitle him to relief, he cannot establish

prejudice. See Commonwealth v. Liston, 977 A.2d 1089, 1092 (Pa. 2009)

(citation omitted) (reiterating that “the failure to file post-sentence motions

does not fall within the limited ambit of situations where a defendant alleging

ineffective assistance of counsel need not prove prejudice to obtain relief”).

Therefore, he is not entitled to relief on this claim.

      Moreover, we have conducted our independent review of the record and

agree with PCRA counsel that the claims Appellant intended to raise on appeal

are meritless. See Muzzy, 141 A.3d at 511.

      Order affirmed. Application to withdraw as counsel granted.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2019




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