J-S61041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DANIEL LASSITER                          :
                                          :
                    Appellant             :     No. 3278 EDA 2017

                Appeal from the PCRA Order September 6, 2017
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0004435-2015


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY PANELLA, J.:                       FILED FEBRUARY 21, 2019

      Appellant, Daniel Lassiter, challenges the order entered in the

Montgomery County Court of Common Pleas, dismissing his first petition filed

pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

      Appellant sexually assaulted the victim, a 33-year-old intellectually

disabled woman with microcephaly. The victim was living independently at the

time, and Appellant worked as a maintenance man in her building when the

assault occurred. Just before trial, Appellant pled guilty to attempted

aggravated    indecent   assault,   attempted    involuntary   deviate   sexual

intercourse (“IDSI”), and indecent assault by forcible compulsion. He was

sentenced to an aggregate six to twelve years’ incarceration. Appellant filed a

motion to modify his sentence, which was denied. He did not file a direct

appeal.
J-S61041-18



      Instead, Appellant filed a timely, pro se PCRA petition. In it, he claimed

his sentence was excessive because it was outside of the standard guideline

range; counsel failed to challenge this excessive sentence on appeal; and

counsel failed to inform him of his appellate rights. The PCRA court appointed

counsel.

      After reviewing the record, counsel filed a no-merit letter and an

application to withdraw from representation, pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988). The PCRA court granted counsel’s petition to withdraw,

and filed notice of its intent to dismiss Appellant’s petition without a hearing,

pursuant to Pa.R.Crim.P. 907. Appellant filed a response objecting to counsel’s

withdrawal.

      Ultimately, the PCRA court dismissed Appellant’s petition. Appellant filed

a notice of appeal from the dismissal of his petition. This appeal is now before

us.

      “Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.” Commonwealth v. Presley,

193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted).

      Appellant’s first issue challenges the discretionary aspects of his

sentence. He argues the sentencing court abused its discretion by sentencing

him outside of the standard guideline range.




                                      -2-
J-S61041-18



       The PCRA requires a petitioner to show his claims have not been

previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An allegation

that a sentence is excessive is a challenge to the discretionary aspects of

sentencing. See Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super.

2008). Because this issue must be preserved at sentencing or in a post-

sentence motion, and raised on direct appeal, “[c]hallenges to the

discretionary aspects of sentencing are not cognizable under the PCRA.”

Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007) (citations

omitted).

       Appellant attempts to dispute what he alleges is an excessive sentence

outside of the standard guideline range for the first time on PCRA review.1 As

he failed to raise this issue on direct appeal, we cannot now review whether

the sentencing court abused its discretion. Thus, Appellant is entitled to no

relief on this first issue as presented.



____________________________________________


1To the extent Appellant believes he contests the legality of his sentence, he
concedes multiple times that this sentencing issue is a discretionary aspects
challenge. See Appellant’s Brief, at 9.

In his PCRA petition, Appellant did allege a legality of sentence issue, wherein
he claimed his sentences for attempted aggravated indecent assault and
attempted IDSI were illegal because the convictions should have merged for
sentencing purposes. Appellant has wholly abandoned this challenge on
appeal. And, as the PCRA court correctly explained, this issue lacked merit.
Appellant’s convictions for attempted aggravated indecent assault and
attempted IDSI stemmed from two distinct criminal acts perpetrated on the
victim, and these crimes have elements which do not overlap. See PCRA Court
Opinion, filed 3/12/18, at 5-7.

                                           -3-
J-S61041-18



      However, in his second issue, Appellant challenges counsel’s failure to

raise this excessive sentence claim on direct appeal. Couched in this way,

Appellant’s claim is cognizable under the PCRA. See Commonwealth v.

Lawrence, 960 A.2d 473, 478 n.3 (Pa. Super. 2008).

      To obtain relief on an ineffectiveness claim, a petitioner must plead and

prove by a preponderance of the evidence “[i]neffective 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

      “It is well-established that counsel is presumed effective, and a PCRA

petitioner bears the burden of proving ineffectiveness.” Commonwealth v.

Reyes-Rodriguez, 111 A.3d 775, 779-780 (Pa. Super. 2015) (brackets and

citations omitted). To prove ineffectiveness, a petitioner must establish his

underlying claim has arguable merit; no reasonable basis existed for counsel’s

failure to raise these claims; and he suffered prejudice as a result of counsel’s

inaction. See Commonwealth v. VanDivner, 178 A.3d 108, 114 (Pa. 2018).

      In Appellant’s underlying claim, he challenges his sentence as excessive,

and alleges it was imposed outside of the standard guideline range. However,

this allegation is premised on a factual inaccuracy, as Appellant’s sentences

for each conviction were within the standard guidelines.

      “[S]entencing is a matter vested in the sound discretion of the

sentencing judge[.]” Commonwealth v. Hill, 66 A.3d 365, 370 (Pa. Super.

2013) (citation omitted). Where an appellant is sentenced within the

                                      -4-
J-S61041-18



guidelines, we may only reverse that sentence if application of the guidelines

is clearly unreasonable. See 42 Pa.C.S.A. § 9781(c)(2).

      A sentence within the guideline range may be unreasonable if “the

appellate court finds that the sentence was imposed without express or

implicit consideration by the sentencing court of the general standards

applicable to sentencing found in [42 Pa.C.S.A. §] 9721, i.e., the protection

of the public; the gravity of the offense in relation to the impact on the victim

and the community; and the rehabilitative needs of the defendant.”

Commonwealth v. Coulverson, 34 A.3d 135, 147 (Pa. Super. 2011)

(citation omitted).

      As noted, Appellant’s sentence is squarely within the standard

guidelines. In its opinion, the PCRA court detailed:

      Appellant’s sentences are within the standard guidelines;
      Appellant’s 3.5 to 7 years’ (42-84 months’) imprisonment on
      Count 2 – Attempted IDSI (Rape) by Forcible Compulsion is within
      the standard guideline range of 36 to 54 months’ imprisonment;
      and Appellant’s 2.5 to 5 years’ (30 to 60 months’) imprisonment
      on Count 4 – Attempted Aggravated Indecent Assault without
      consent is within the standard guideline range of 22 to 36 months’
      imprisonment.

PCRA Court Opinion, filed 3/12/18, at 8.

      We then consider whether the application of the guidelines was clearly

unreasonable in this case. At sentencing, the court stated:

      When it comes to fashioning a sentence, there are lots of things
      to balance. I believe in this circumstance [Appellant] is different
      things to different people.




                                      -5-
J-S61041-18


     To his family and to the people that testified, he has been a good
     friend, and someone who is able to help out when they need it,
     but to [the victim], he has completely altered her life, and for the
     court, it’s important to balance everything.

     It is important to balance the fact that there is no significant prior
     criminal history with the actions he took, and what [Appellant] did
     to [the victim].

     There are many times that you’ve been in court, [Appellant],
     where your attitude has vacillated between feeling like a victim or
     like you were today, hopefully, understanding the impact of your
     action.

     It is a difficult case because of the difference. You don’t come
     before this court having a history of violence, having a history of
     sexual assaults, but the actions you took were horrific.

     You said [“]the charges do not define who I am,[”] and while you
     are right, the charges against you and your plea of guilty do not
     define who you are, when the time comes that you are released
     from prison, you will have your family. You will be able to move
     on from this, but your actions have now defined [the victim’s] life,
     and have now defined her ability to move forward in a way that
     she deserves to.

     She has earned that. It has taken her a long time to be
     independent, and you took that from her, and the court needs to
     balance those things.

     … As a result of your actions, I believe you have earned the
     following sentence. Because you come to this court this age,
     without any significant criminal history, I do not feel that this is a
     statutory maximum case, but in normal circumstances, I give
     mitigating consideration to someone who has pled guilty, but that
     is not what I will do here because of your vacillation regarding
     your responsibility.

     As it relates to the charge of attempted IDSI, I sentence you to
     three and a half to seven years.

     As it relates to the aggravated indecent assault, I sentence you to
     two and a half to five years to run consecutive. As to indecent
     assault, I sentence you to four years’ probation.

                                     -6-
J-S61041-18



       This is significantly less than the statutory maximum, because I
       am hopeful that from your hearing [the victim’s father], from your
       understanding of what this has done to [the victim], that the time
       you spend in prison, while significant, and you will get credit for
       time served, still gives you the opportunity to get out while your
       youngest children are even in elementary school and be a part of
       their lives, but there needs to be punishment, because I don’t
       know if [the victim] will ever get past that, and that’s because of
       the action you took.

N.T. Sentencing, 9/13/16, at 75-78.

       The transcripts demonstrate the court considered the protection of the

public, the gravity of the offense in relation to the impact on the victim and

the community, and Appellant’s rehabilitative needs. See Coulverson, 34

A.3d at 147. The sentencing court also reviewed a pre-sentence investigation

report, and a psycho-sexual evaluation for Appellant. We are convinced the

court imposed a reasonable sentence, and that a challenge to the discretionary

aspects of Appellant’s sentence would be without merit.

       Because Appellant is unable to prove his underlying claim has merit, he

cannot show that counsel acted unreasonably in failing to pursue this meritless

argument. See Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014)

(holding counsel cannot be deemed ineffective for failing to raise a meritless

claim). Accordingly, he is entitled to no relief on this ineffectiveness claim.2
____________________________________________


2 In his PCRA petition, Appellant also argued trial counsel was ineffective for
failing to inform him of his appellate rights. Appellant abandons this claim on
appeal. And, as the PCRA court notes in its opinion, that claim is utterly belied
by the record. See N.T. Sentencing, 9/13/16, at 79-80 (explaining Appellant’s
rights on appeal).




                                           -7-
J-S61041-18



       Appellant also contends PCRA counsel provided ineffective assistance

when counsel filed a Turner/Finley no-merit letter.3 Essentially, Appellant

contends PCRA counsel rendered ineffective assistance by failing to investigate

Appellant’s claims that trial counsel was ineffective.

       An allegation that PCRA counsel was ineffective for failing to investigate

trial counsel’s ineffectiveness is cognizable only as a “layered” claim. See

Commonwealth v. McGill, 832 A.2d 1014, 1023 (Pa. 2003) (explaining

appellate or collateral counsel cannot be deemed ineffective for failing to raise

ineffectiveness of trial counsel, if petitioner fails to establish trial counsel’s

ineffectiveness).

       Here, because Appellant was unable to establish that trial counsel was

ineffective, he cannot then establish PCRA counsel’s ineffectiveness for failing

to raise such a claim. Appellant is due no relief.

       Finally, we address Appellant’s argument that the PCRA court erred by

declining to hold an evidentiary hearing.

       “There is no absolute right to an evidentiary hearing on a PCRA petition,

and if the PCRA court can determine from the record that no genuine issues

of material fact exist, then a hearing is not necessary.” Commonwealth v.

Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (citation omitted). Appellant’s

PCRA issues do not present genuine issues of material fact. Holding an
____________________________________________


3 Appellant first raised this claim of PCRA counsel’s ineffectiveness in his
response to the PCRA court’s Rule 907 notice of intent to dismiss his petition
without a hearing. Therefore, we will consider it. See Commonwealth v.
Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012).

                                           -8-
J-S61041-18



evidentiary hearing would have served no purpose. Accordingly, we affirm the

PCRA court’s order dismissing his first PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/19




                                     -9-
