J-S57020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MICHAEL D. LANDIS,

                            Appellant               No. 1839 WDA 2015


                 Appeal from the PCRA Order October 20, 2015
               In the Court of Common Pleas of Venango County
              Criminal Division at No(s): CP-61-CR-0000380-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED OCTOBER 6, 2016

       Appellant, Michael D. Landis, appeals from the October 20, 2015 order

denying his second petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       The record reveals that in a criminal information filed on July 24,

2014, Appellant was charged as follows: count one, driving under the

influence of alcohol (“DUI”), general impairment; count two, DUI, lowest

rate of alcohol; count three, habitual offender; count four, driving while

operating privileges were suspended, DUI related; and count five, driving

without a license. On October 20, 2014, the trial court held a plea hearing.

After the facts underlying Appellant’s arrest and Appellant’s criminal history
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*
    Retired Senior Judge assigned to the Superior Court.
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were placed on the record, the trial court asked if Appellant had been

threatened, coerced, or promised anything in exchange for entering guilty

pleas. N.T., Plea Hearing, 10/20/14, at 12-13. Appellant confirmed on the

record that he had not been threatened, coerced, or promised anything in

exchange for his pleas and that he was voluntarily entering guilty pleas on

counts two, three, and four.1          Id. at 13.   After the trial court accepted

Appellant’s guilty pleas and ordered a presentence investigation report,

Appellant’s counsel made the following statement: “State Intermediate

Punishment might be a slim possibility in this case, Your Honor.” Id. at 14.

The trial court did not respond to this statement and scheduled Appellant’s

case for sentencing. Id.

        At the sentencing hearing, Appellant’s counsel again referenced state

intermediate punishment. Counsel did not demand it or even suggest that it

was a condition of Appellant’s guilty pleas; rather, counsel requested, “I

would ask the court to consider state intermediate punishment.”              N.T.,

Sentencing, 12/2/14, at 23.            The trial court explained to counsel and

Appellant that state intermediate punishment was not an option because

Appellant was on state parole at the time of his arrest in this matter, and a

detainer was lodged against him. Id. at 24. The trial court then sentenced

Appellant to an aggregate term of two to four years of incarceration with

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1
    Counts one and five were nol prossed.



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142 days of credit for time served. Id. at 37-39. This sentence was ordered

to be served consecutively to any sentence Appellant was ordered to serve

as a result of his parole violation.           The trial court further clarified that

Appellant was not RRRI2 eligible.          Id. at 39.   At no time during the plea

hearing or at sentencing did Appellant mention being promised state

intermediate punishment or withdrawing his guilty pleas.

        Appellant filed a post-sentence motion for reconsideration of sentence

that was denied on December 15, 2014. Appellant did not pursue a direct

appeal in this Court.

        On April 23, 2015, Appellant filed a timely PCRA petition, and the PCRA

court appointed counsel on April 29, 2015. In his petition, Appellant alleged

plea counsel was ineffective for failing to secure state intermediate

punishment. The PCRA court held a hearing on Appellant’s PCRA petition on

September 3, 2015. At the PCRA hearing, there was a discussion concerning

Appellant’s desire for state intermediate punishment, and an assertion that

Appellant had requested state intermediate punishment.                  N.T., PCRA

Hearing, 9/3/15, at 2-5. However, there was no evidence in the record that

Appellant was promised state intermediate punishment; there merely was a

discussion at sentencing explaining that Appellant was not eligible for state

intermediate punishment due to his state parole detainer. Id.; (see N.T.,
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2
    Recidivism Risk Reduction Incentive. 61 Pa.C.S. §§ 4501 et seq.




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Sentencing, 12/2/14, at 23 (where the sentencing court explained the

reasons appellant was not eligible for state intermediate punishment)). At

the conclusion of the PCRA hearing, the PCRA court denied the petition,

finding no basis upon which plea counsel was ineffective.         Id. at 12.

Appellant did not pursue an appeal to this Court.

       On October 16, 2015, Appellant filed a second PCRA petition.3       The

PCRA court summarily dismissed Appellant’s second PCRA petition in an

order filed on October 20, 2015.4 This timely appeal followed.

       On appeal, Appellant raises the following issue:

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3
  This second PCRA petition was timely because it was filed within one year
from the date Appellant’s judgment of sentence became final. 42 Pa.C.S. §
9545(b)(1); 42 Pa.C.S. § 9545(b)(3).
4
  Generally, the PCRA court must provide notice of its intent to dismiss a
PCRA petition and provide the petitioner with twenty days in which to
respond. Pa.R.Crim.P. 907(1). However, the comment to Rule 907 provides
that the PCRA court:

       is permitted, pursuant to paragraph (1), to summarily dismiss a
       petition for post-conviction collateral relief in certain limited
       cases ... [and a] summary dismissal would also be authorized
       under this rule if the judge determines that a previous petition
       involving the same issue or issues was filed and was finally
       determined adversely to the defendant.

Id. cmt. As explained in our disposition, the issue Appellant raised in his
second PCRA petition was the identical issue he litigated in his unsuccessful
first PCRA petition. Moreover, Appellant did not object to the PCRA court’s
failure to provide notice of intent to dismiss pursuant to Rule 907, rendering
any argument on this issue waived. Commonwealth v. Boyd, 923 A.2d
513, 514 n.1 (Pa. Super. 2007).




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      Whether the PCRA Court erred as a matter of law or abused its
      discretion in finding that [plea] counsel was not ineffective for
      [failing to enforce] the plea agreement, specifically that [plea]
      counsel failed to enforce the promise that [Appellant] would be
      placed in the State Intermediate Punishment program.

Appellant’s Brief at 5.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      Additionally, in order to be entitled to PCRA relief, the petitioner must

establish by a preponderance of the evidence that his conviction or sentence

resulted from one or more of the errors enumerated in 42 Pa.C.S. §

9543(a)(2), and that his claims have not been previously litigated or waived.

Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011).              An issue has

been previously litigated if it was raised and decided in a proceeding




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collaterally attacking the conviction or sentence.   Id. (citing 42 Pa.C.S. §

9544(a)(3)).

     As pointed out by the PCRA court, the issue Appellant raised in his

second PCRA petition is the same issue he raised in is first PCRA petition.

PCRA Court Opinion, 10/21/15, at unnumbered 3.         Specifically, Appellant

again claimed that plea counsel was ineffective for failing to enforce a plea

agreement wherein Appellant would receive state intermediate punishment.

Id. The PCRA court concluded that Appellant’s claim was previously litigated

and denied the petition. Id.

     We agree with the PCRA court’s conclusion. Appellant’s claim of error

was previously litigated pursuant to 42 Pa.C.S. § 9544(a)(3), and therefore,

he is ineligible for relief. 42 Pa.C.S. § 9543(a)(3). Accordingly, we affirm

the October 20, 2015 order denying Appellant’s second PCRA petition.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2016




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