J-S75023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JOHN WEAVER

                        Appellant                  No. 1263 EDA 2016


                Appeal from the PCRA Order April 14, 2016
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0000095-2014


BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                       FILED OCTOBER 18, 2016

     John Weaver appeals from the April 14, 2016 order of the Court of

Common Pleas of Delaware County denying his petition filed pursuant to the

Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.

     On June 16, 2013, Weaver’s car collided with another car. According

to the Affidavit of Probable Cause, dated Nov. 25, 2013, Weaver was driving

the car, and both he and the occupants of the second car sustained injuries.

The police officers at the scene detected a strong odor of alcohol coming

from Weaver, who had slurred speech and bloodshot eyes.           The officers

found an open beer can next to Weaver and additional empty beer cans in

the car, along with a 30-pack case of Miller Lite, which contained twenty

cans that were unopened and cold to the touch.
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       The Commonwealth obtained a search warrant for Weaver’s medical

records, which revealed that less than one hour after the accident, Weaver’s

blood alcohol content (“BAC”) was .237%.              N.T., 1/7/2014, at 15; N.T.,

4/8/2014, at 9.

       On April 8, 2014, Weaver entered a negotiated guilty plea to two

counts of aggravated assault by vehicle while driving under the influence,

driving under the influence of alcohol (high rate of alcohol) (“DUI”), and

driving while operating privilege is suspended or revoked (“DWOPS”).1           At

the guilty plea hearing, Weaver stated that he understood and agreed with

the terms of the negotiated guilty plea and understood the nature of the

charges.      N.T., 4/8/2014, at 6-7.          The court thoroughly explained the

charges, including that to violate the subsection of the DWOPS statute with

which Weaver was charged, a defendant must drive a motor vehicle:

            at a time when your operating privileges were suspended
            or revoked as a condition of acceptance of [Accelerated
            Rehabilitative Disposition (ARD),] as a result of a
            conviction for ARD[,] as a result of a refusal to give a
            blood or breath sample after being stopped for suspicion of
            driving while under the influence[,] or under a license
            compact from another state where they have a similar
            violation.

Id. at 8.     Weaver agreed the facts contained in the affidavit of probable

cause supported or substantiated the charges.           Id. at 9.   Weaver further

agreed his blood test results stated his BAC was .237% on the night of the
____________________________________________


       1
           75 Pa.C.S. §§ 3735.1(a), 3802(c), and 1543(b)(1.1), respectively.



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accident. Id. at 9. Weaver also agreed that a report from the Pennsylvania

State Police indicated his license was suspended at the time of the accident

and that the suspension was a result of a prior DUI conviction, prior ARD

conviction, or prior refusal to take an alcohol or blood test when there was

probable cause to believe he was operating a motor vehicle while under the

influence of drugs or alcohol.        Id. at 10.   Weaver agreed that the record

from the Pennsylvania State Police was a true and correct record and that he

was on a DUI-related suspension at the time of the accident. Id.2

       On April 15, 2014, the trial court sentenced Weaver to two consecutive

terms of 18 to 36 months’ imprisonment for the aggravated assault

convictions and a concurrent term of 90 days’ imprisonment for the DWOPS

conviction.     The DUI conviction merged with the aggravated assault

convictions for sentencing purposes. At the sentencing, Weaver requested

that the trial court not apply credit for time served from January 7, 2014 to

April 15, 2014, because he wished to have that time credited to a sentence
____________________________________________


       2
          At the guilty plea hearing, the trial court also explained the
maximum sentences applicable to the crimes. N.T., 4/8/2014, at 11.
Weaver further acknowledged he understood that: he had a right to a jury
trial; he would be presumed innocent; and the Commonwealth would be
required to prove every element of each crime beyond a reasonable doubt.
Id. at 10. Weaver further stated that he had read and understood the
written guilty plea statement, his counsel had answered any questions
regarding the statement, and he was making a knowing, voluntary and
intelligent decision to plead guilty and was not forced or threatened to plead
guilty. Id. at 12-13. Weaver stated he was not under the influence of drugs
or alcohol at the time of the guilty plea hearing and was satisfied with his
attorney. Id. at 13.



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that would be imposed following the revocation of probation in another

county. N.T., 4/15/2014, at 9. The trial court found Weaver was ineligible

for the Recidivism Risk Reduction Incentive Program and did not grant credit

for time served. Id. at 8-9.

       Weaver did not file a post-sentence motion or a direct appeal.     On

April 13, 2015, Weaver filed a “Motion for Modification and/or Correction of

an Illegal Sentence Pursuant to § 9760” and on May 13, 2015, Weaver filed

a “Motion to Amend Petitioner[’]s March 30, 2015 Motion for Correction of

Illegal Sentence and Construe Under the Post Conviction Relief Act, PCRA,

Sua Sponte.” The PCRA court treated these motions as a PCRA petition and

appointed counsel.3       On October 2, 2015, counsel filed an application to

withdraw as counsel and attached a Turner/Finley4 no-merit letter.

       On December 16, 2015, the PCRA court issued notice of its intent to

dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure 907

and granted counsel’s application to withdraw.5        On January 7, 2016,
____________________________________________


       3
        Because Weaver’s claims are cognizable under the PCRA, the PCRA
court properly treated the motions as a PCRA petition. Commonwealth v.
Taylor, 65 A.3d 462, 466 (Pa.Super. 2013) (stating that if PCRA statute
offers remedy for appellant’s claim, it is sole avenue of relief).
       4
      Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
       5
         On December 7, 2015, Weaver filed a “Motion Requesting
Discovery.”  Weaver was informed the court did not have discovery
materials and that he should contact his attorney. See Docket at 2,
Commonwealth v. Weaver, CP-23-CR-0000095-2014 (C.P. Delaware).
(Footnote Continued Next Page)


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Weaver filed a response to the notice. On April 14, 2016, the PCRA court

denied the petition.        On May 12, 2016,6 Weaver filed a timely notice of

appeal. Both Weaver and the trial court complied with Pennsylvania Rule of

Appellate Procedure 1925.

      Weaver raises the following issues on appeal:

          1) Should the sentencing [c]ourt ignore irrefutable
          evidence to the innocence of [Weaver] just because he
          chose to take a plea agreement?[]

          2) Shouldn’t [Weaver’s] counsel investigate into any
          evidence that would prove innocence to a charge?[]

          3) Shouldn’t [Weaver’s] counsel accurately assess his
          client[’]s calculation of time served pursuant to 42
          Pa.C.S.[] § 9760?[]

          4) Shouldn’t [Weaver] be entitled to [c]ase [d]iscovery,
          [p]olice reports, [m]edical reports, ect[.,] to adequately
          present a full and complete defense for trial and/or for
          reasons on appeal?[]

Appellant’s Br. at 4.




                       _______________________
(Footnote Continued)

On December 18, 2015, Appellant filed a “Motion Requesting the Honorable
Court to Serve Orders Upon the District Attorney’s Office for Discovery.” On
April 14, 2016, the PCRA court denied this motion.
      6
          On May 12, 2016, Weaver filed a concise statement of matters
complained of on appeal. He subsequently filed a notice of appeal. Weaver
stated the date of “service by first class mail” for the notice was May 13,
2016, but the trial court stamped the notice as filed on May 18, 2016.
Because Weaver filed a concise statement on May 12, 2016, which indicated
he wished to appeal the PCRA court’s April 14, 2016 order, we find he timely
filed his appeal.



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       Our standard of review from the denial of post-conviction relief “is

limited to examining whether the PCRA court’s determination is supported by

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

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

       In his first two issues, Weaver essentially claims he is not guilty of

DWOPS because, at the time of the accident, his license had been restored

pending appeal.7 Appellant’s Br. at 4, 8-11. Weaver attached, both to his

response to the PCRA court’s notice of intent to dismiss and to his appellate

brief, a document he claims is the Department of Transportation driving

history sheet for his license. The driving history stated: (1) the license was

suspended effective March 2, 2012, with official notice mailed April 6, 2012;

(2) the license was restored pending appeal on April 11, 2012; and (3) the

license suspension was re-imposed effective October 8, 2013, with official

notice mailed September 2, 2013.               See Response to the Court’s Notice of

Intent to Dismiss, at Exh. A.          Weaver argues this history establishes his

license had been restored pending appeal at the time of the June 16, 2013,

accident. Appellant’s Br. at 8. He claims his counsel induced him to plead

guilty to the DWOPS charge because counsel informed him that the sentence

would be concurrent to the other charges (which it was) and the prosecution
____________________________________________


       7
        Weaver’s brief does not discuss his first issue, i.e., that the PCRA
court erred because it ignored evidence of his innocence. Weaver’s brief,
however, discusses his claim that trial counsel was ineffective for failing to
investigate whether he was innocent of the DWOPS charge.



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would agree to a more lenient, negotiated sentence if he pled guilty to the

DWOPS charge. Id.

     To be eligible for PCRA relief, a petitioner must plead and prove by a

preponderance of the evidence:

        (1) That the petitioner has been convicted of a crime under
        the laws of this Commonwealth and is at the time relief is
        granted:

        (i) currently serving a sentence of imprisonment, probation
        or parole for the crime;

        (ii) awaiting execution of a sentence of death for the
        crime; or

        (iii) serving a sentence which must expire before the
        person may commence serving the disputed sentence.

42 Pa.C.S. § 9543(a)(1).   Accordingly, a petitioner is ineligible for PCRA

relief if he has completed serving the sentence imposed for the crime. See

Commonwealth v. Matin, 832 A.2d 1141, 1143 (Pa.Super. 2003) (finding

appellant not entitled to relief where term of imprisonment for firearms

violation expired, even though appellant remained imprisoned for other

crimes at the same docket number).

     Here, the trial court sentenced Weaver to 90 days’ imprisonment for

the DWOPS conviction. The trial court imposed this sentence concurrent to

the sentences imposed for the remaining convictions. Because more than 90

days have passed since Weaver began serving this concurrent sentence, he

is no longer serving the sentence imposed for the DWOPS conviction.




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Therefore, he is ineligible for PCRA relief for that conviction. See 42 Pa.C.S.

§ 9543(a)(1); Matin, 832 A.2d at 1143.

      Further, even if Weaver were able to challenge his sentence for the

DWOPS conviction, his claim that counsel was ineffective because counsel

induced him to plead guilty fails. To prevail on an ineffective assistance of

counsel claim, the petitioner must establish: “(1) his underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his action or

inaction; and (3) the petitioner suffered actual prejudice as a result.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.Super. 2014) (citation

omitted). To establish the prejudice prong where an appellant has entered a

guilty plea, “the appellant must demonstrate ‘it is reasonably probable that,

but for counsel’s errors, he would not have pleaded guilty and would have

gone to trial.’” Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa.Super.

2013) (quoting Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super.

2006)).     “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Ousley, 21 A.3d at 1244

(citation   omitted).   “The   failure   to   prove   any   one   of   the   three

[ineffectiveness] prongs results in the failure of petitioner’s claim.”        Id.

(citation omitted).

      At the guilty plea hearing, Weaver stated he understood the crime to

which he was pleading guilty, i.e., DWOPS due to the acceptance of ARD, a

conviction for ARD, or due to the refusal to consent to a blood test after

being stopped for suspicion of DUI, where he had a BAC of equal to or

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greater than .02%.8         N.T., 4/7/2014, at 8-9.         He further agreed that a

Pennsylvania State Police report indicated his license was suspended for one

of the reasons listed in the statute and that this report was true and correct.

Id. at 9-10. Weaver cannot now seek relief on grounds that contradict the

statements       he   made      under     oath   at   the     guilty   plea   hearing.9

Commonwealth v. Turetksy, 925 A.2d 876, 881 (Pa.Super. 2007).



____________________________________________


       8
           Section 1543(b)(1.1)(i) of the Vehicle Code provides:

            A person who has an amount of alcohol by weight in his
            blood that is equal to or greater than .02% at the time of
            testing . . . or who refuses testing of blood or breath and
            who drives a motor vehicle on any highway or trafficway of
            this Commonwealth at a time when the person’s operating
            privilege is suspended or revoked as a condition of
            acceptance of Accelerated Rehabilitative Disposition for a
            violation of section 3802 or former section 3731 or
            because of a violation of section 1547(b)(1) or 3802 or
            former section 3731 or is suspended under section 1581
            for an offense substantially similar to a violation of section
            3802 or former section 3731 shall, upon a first conviction,
            be guilty of a summary offense and shall be sentenced to
            pay a fine of $1,000 and to undergo imprisonment for a
            period of not less than 90 days.

75 Pa.C.S. § 1543(b)(1.1)(i).
       9
        Further, Weaver states that he raised doubts about the status of his
license to his attorney prior to the guilty plea hearing. Appellant’s Br. at 5.
Even with these alleged doubts, Weaver chose to take advantage of the
negotiated guilty plea and agreed, under oath, that the Pennsylvania State
Police records established he was driving while his operating privilege was
suspended.




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Weaver’s claim that counsel induced him to enter the guilty plea lacks

merit.10

       Weaver next claims his counsel was ineffective for failing to provide

the trial court with an accurate calculation of his time served. Appellant’s

Br. at 11-12. Although Weaver’s PCRA petition originally sought credit for all

time spent incarcerated from his arrest until his sentencing, his appellate

brief seeks credit for only 7 days. Id. He concedes he received credit for

the remaining days when the Court of Common Pleas of Chester County

imposed a sentence following revocation of his probation for a separate

conviction.     Id.; Docket at 2, Commonwealth v. Weaver, CP-15-CR-

0003642-2011 (C.P. Chester 2011) (noting Weaver was sentenced to

minimum of 90 days and maximum of 23 months, with credit for time




____________________________________________


       10
          Weaver’s concise statement of errors complained of on appeal
claims his counsel failed to investigate his innocence for driving under a
suspended license. (Concise Statement of Matters Complained of on Appeal
at (1).) The PCRA Court did not discuss this claim in its Rule 1925(a)
Opinion, but did conclude that the record

            reveal[ed] that [Weaver] entered into a knowing,
            intelligent, and voluntary negotiated plea in exchange for a
            much lesser sentence than he would have been exposed to
            had he went to trial and been found guilty. This court will
            not disturb these negotiations. Consequently, [Weaver] is
            not entitled to any relief.

1925(a) Opinion at 6-7. This conclusion is supported by the record and free
of legal error.



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served, and noting he was re-paroled effective July 18, 2014).       Weaver’s

claim lacks merit.

      The PCRA court noted that Weaver’s counsel requested that the trial

court not grant credit for time served, because counsel planned to request

credit during a revocation proceeding in Chester County. 1925(a) Opinion,

filed 5/18/2016, at 6 (“1925(a) Opinion”); N.T., 4/15/2014, at 9. The PCRA

court also noted that Weaver received credit for time served at the Chester

County docket. 1925(a) Opinion at 5-6. Weaver cannot receive credit for

time served at both dockets. Id.; see also 42 Pa.C.S. § 9760(4) (“If the

defendant is arrested on one charge and later prosecuted on another charge

growing out of an act or acts that occurred prior to his arrest, credit against

the maximum term and any minimum term of any sentence resulting from

such prosecution shall be given for all time spent in custody under the

former charge that has not been credited against another sentence.”). The

PCRA court’s findings are supported by the record and free of legal error.

      Weaver’s final claim is that he informed his counsel he was concerned

about the extent of injuries suffered by the victims and about his BAC.

Appellant’s Br. at 12-15. He claims his counsel failed to provide him police

reports, medical records, and accident investigation reports.      Id. at 13.

Weaver claims he learned at the guilty plea hearing that the injuries

sustained were not serious and claims the BAC used by the Commonwealth

was based on a urine test performed three days after the accident. Id. at

14. Weaver’s claim lacks merit.

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      At a January 7, 2014 preliminary hearing, which Weaver attended, the

victims testified regarding their injuries. N.T., 1/7/2014, at 29-32, 39-42.

The first victim’s injuries included “a pinched nerve and constant pain and

numbness down” his left arm and leg.            Id. at 29.   He had chest pain

immediately after the accident and was no longer able to do many activities.

Id. At the time of the hearing, the victim continued to receive treatment for

nerve damage and only felt improvement when he received epidural

injections, which he received about once a month.        Id. at 30. The victim

also continued to take pain medication as a result of the accident. Id. at 31.

The first victim was unable to work for about one and one-half months

following the accident. Id. at 32.

      The second victim suffered a concussion and her left leg was

“jammed[,] like you jam your finger.” N.T., 1/7/2014, at 39. At the time of

the hearing, the victim continued to receive injections for her leg every

three-to-four weeks. The victim had discontinued physical therapy because

she could no longer afford the sessions. Id. at 39-40. She continued to do

physical therapy exercises at home. Id. at 39. The victim was in constant

pain and continued to experience difficulty walking. Id. at 39, 42. She had

not been able to return to work. Id. at 41.

      In addition, police officer Michael Coverdale testified regarding the

results of Weaver’s urine test. Although there was confusion regarding the

times and dates of the urine testing at the hearing, Weaver knew of this

confusion at the preliminary hearing.         N.T., 1/7/2015, at 57-69 (Officer

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Coverdale testified from lab report, which contained dates and times of June

16, 2013 at 7:48 p.m. and June 19, 2013 at 11:41 p.m.). Further, at the

guilty plea hearing, Weaver agreed that the results of a blood test indicated

his BAC was .237%. N.T., 4/8/15, at 9. Accordingly, Weaver was aware in

January 2014, three months before his guilty plea hearing, of the victim’s

injuries11 and of the confusion regarding the dates of the urine test results.

Therefore, his counsel ineffectiveness claim fails.12

       Order affirmed.




____________________________________________


       11
         Aggravated assault by vehicle while driving under the influence is
defined as: “Any person who negligently causes serious bodily injury to
another person as the result of a violation of section 3802 (relating to
driving under influence of alcohol or controlled substance) and who is
convicted of violating section 3802 commits a felony of the second degree
when the violation is the cause of the injury.” 75 Pa.C.S. § 3735.1(a). The
Vehicle Code defines “serious bodily injury” as “[a]ny bodily injury which
creates a substantial risk of death or which causes serious, permanent
disfigurement or protracted loss or impairment of the function of any bodily
member or organ.” 75 Pa.C.S. § 102.
12
    Weaver’s Rule 1925(b) statement challenges the failure to supply him
with case discovery. Concise Statement of Matters Complained of on Appeal
at (3). The PCRA court did not discuss this issue. It did, however, conclude
that Weaver entered into a “knowing, intelligent, and voluntary negotiate
guilty plea in exchange for a much lesser sentence than he would have been
exposed to had he went to trial and been found guilty.” 1925(a) Opinion at
6-7. This conclusion is supported by the record and free from legal error.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2016




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