J-S47042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

CRISTIAN EUMANA

                            Appellant                     No. 544 EDA 2014


               Appeal from the PCRA Order of January 17, 2014
                In the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0000707-2012


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                           FILED SEPTEMBER 02, 2014

       Cristian Eumana, pro se, appeals the January 17, 2014 order

dismissing his petition for relief pursuant to the Post-Conviction Relief Act

                                     et seq. We affirm.

       The PCRA court set forth the factual and procedural history of this case

as follows:

       On November 26, 2012, [Eumana pleaded] guilty in open court
       to two counts of third[-]degree murder[1] and one count of
       conspiracy to commit third[-]degree murder,[2] and was
       sentenced pursuant to the terms of a [g]uilty [p]lea [c]olloquy

       provided for concurrent sentences on the two counts of murder
       of [eleven] to [twenty-
       years consecutive probation on the conspiracy conviction.
____________________________________________


1
       18 Pa.C.S. § 2502(c).
2
       18 Pa.C.S. § 903(c).
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     his participation in the gang-related deaths of two men which
     occurred in New Garden Township, Chester County on December
     3, 2011. [Eumana] was a member of a street gang known as

     other co-defendants to attack members of a rival gang. During
     the attack, two of the rival gang members were beaten and
     stabbed to death. As part of the facts to which [Eumana]
     pleaded guilty, [Eumana] admitted that he was directly and

     [Eumana] was represented by counsel at sentencing, and the
     undersigned trial judge entered into a full colloquy with
     [Eumana] at the time of sentencing concerning his
     understanding of the written plea colloquy, which represents a
     plea agreement, his acceptance of responsibility under the facts
     at that time placed on the record, his right to trial by jury, the
     sentences to be imposed under the terms of the agreement, his
     knowing and voluntary acceptance of the terms of his guilty
     pleas, and other relevant areas of inquiry as evidenced by the
     [twenty-seven] page [s]entencing transcript.

                                                        -4 (citation omitted).

Eumana entered into a guilty plea with a negotiated sentence on November

26, 2012. Eumana did not file a direct appeal.

     On August 9, 2013, Eumana filed a pro se PCRA petition and an

                                                      na argued that his trial

attorney   should   have   petitioned    the   sentencing   judge   to   consider

alternatives available to offenders with non-violent crimes at sentencing.

Additionally, Eumana emphasized that he did not wish to withdraw his guilty

plea. On August 15, 2013, the PCRA court appointed counsel to represent

Eumana on his PCRA petition, however, on October 9, 2013, PCRA counsel

filed a motion to withdraw pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213


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(Pa. Super. 1988). On October 25, 2013, the PCRA court filed a notice of its

intent to dismiss the PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907, because it believed that further proceedings would serve

no legitimate purpose.        Eumana did not file a response to this notice of



withdraw. On January 17, 2014, the PCRA court dismissed the petition and

                                                               2, 2014, Eumana

filed a notice of appeal and, on March 21, 2014, the PCRA court filed its

opinion pursuant to Pa.R.A.P. 1925(a).3

       Eumana raises the following issue for our review:

       Was [Eumana] denied his constitutional right to appeal when
       [plea] counsel failed to file a requested appeal on his behalf?

Brief for Eumana at 7.          In relevant part, Eumana asserts that his plea

counsel should be deemed ineffective for failing to file a motion for

modification of sentence.         See id.                                ile the

requested Motion for Modification of Sentence, he rendered ineffective

assistance of counsel which resulted in the procedural default of the right to

appeal, necessitating a remand to the lower court for further argument on

                             sentially argues that he should have been permitted


____________________________________________


3
      The PCRA court did not direct Eumana to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). P.C.O. at 2.
Consequently, Eumana did not file a Rule 1925(b) statement.



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to appeal the discretionary aspects of his negotiated sentence, and that plea

counsel was ineffective for failing to file such an appeal. We disagree.

      Our standard of review in this context is axiomatic:

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
                                                                   if it
      is supported by evidence of record and is free of legal error.

      the record supports it. We grant great deference to the factual
      findings of the PCRA court and will not disturb those findings
      unless they have no support in the record. However, we afford
      no such deference to its legal conclusions. Further, where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012)

(quoting Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012);

internal citations omitted)).

      Eumana asserts that his plea counsel was ineffective for failing to file a

motion for the modification of his

guilty plea.   Specifically, Eumana argues that the sentencing court should

have considered additional factors when imposing sentence such as the fact

that Eumana has never been afforded the opportunity to participate in

substance abuse treatment or psychiatric counseling. We disagree.



waiver of all defects and defenses except those concerning the jurisdiction of

the court, the legality of sentence

Commonwealth v. Dalberto, 648 A.2d 16, 18 (Pa. Super. 1994) (citing

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Commonwealth v. Moyer, 444 A.2d 101, 102 (Pa. 1982)) (emphasis in



bargai

                                Id.

discretionary aspects of his or her sentence after entering a guilty plea, this

distinction is crucial in determining whether or not an appeal from such a

                        Id.                                         negotiated

sentence which is accepted and imposed by the sentencing court, there is no

authority to permit a challenge to the discretionary aspects of that

            Id. at 20 (citing Commonwealth v. Reichle, 589 A.2d 1140,

1141 (Pa. Super. 1991) (emphasis in original); see Commonwealth v.

Baney, 860 A.2d 127, 131 (Pa. Super. 2004) (same).

      Instantly, the only basis upon which Eumana alleges that plea counsel

was ineffective was an alleged failure to file an appeal of the discretionary



not permitted to appeal the discretionary aspects of his sentence following a

negotiated guilty plea. Baney; Dalberto; Reichle, supra. It is well-settled



         See Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006).

Thus, it was not an abuse of discretion for the PCRA court to dismiss



challenging the discretionary aspects of his sentence.

      Order affirmed.

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J-S47042-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/2/2014




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