J-S66005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                   OF PENNSYLVANIA
                         Appellee

                    v.

STANLEY DAVID KAMINSKI JR.

                         Appellant                  No. 768 EDA 2019


           Appeal from the PCRA Order Entered February 8, 2019
              In the Court of Common Pleas of Bucks County
                   Criminal Division at No: 0007134-2015


BEFORE: STABILE, NICHOLS, JJ., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                            FILED MAY 20, 2020

     Appellant, Stanley David Kaminsky, Jr., appeals from the February 8,

2019 order denying his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. 9541-46. We affirm.

     On March 21, 2016, Appellant pled guilty to homicide by vehicle while

driving under the influence.   The incident occurred on July 1, 2015 when

Appellant, while intoxicated, drove his 2005 Saturn off the road and into a

wooded area. Victim Todd Rubin, seated in the front passenger seat, was

pronounced dead at the scene. Appellant and the two backseat passengers,

Jacob Winter and Summer DeCastro, survived and were removed from the

vehicle by mechanical extrication. Winter suffered a broken neck, broken arm,

a fractured hip, and a severe concussion. Winter told police that he asked

Appellant to slow down when the car approached 90 miles per hour, but
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Appellant sped up to 110 miles per hour. Winter also told police that Appellant

asked him to tell them he lied about the vehicle’s rate of speed, in order to

help Appellant with his defense. Police investigation revealed that the car was

moving 89 to 99 miles per hour when it crashed into a ditch, after it was

already off the road and losing momentum.         DeCastro suffered fractured

vertebrae, fractured, ribs, a fractured pelvis, and a severe concussion.

Appellant’s blood alcohol content was .128.       He also tested positive for

marijuana and synthetic marijuana.

      Sentencing took place immediately after the guilty plea. The trial court

imposed an aggregate sentence of 7 to 14 years of incarceration. Appellant

filed a motion for reconsideration, which the trial court denied after a June 7,

2016 hearing. This Court affirmed the judgment of sentence on February 28,

2017, concluding that Appellant waived his challenge to the trial court’s

sentencing discretion.   Our Supreme Court denied allowance of appeal on

August 14, 2017.

      Appellant filed a timely first PCRA petition on April 12, 2018. Private

counsel filed an amended petition on October 24, 2018.         The PCRA court

conducted hearings on November 27, 2018 and February 5, 2019. The PCRA

court denied relief on February 8, 2019, and this timely appeal followed.

Appellant presents two questions:

      1.    Where counsel knew that Appellant was going to be
      sentenced on the same day he was going to plead guilty in a
      serious DUI matter where one person was killed and three were
      injured, yet failed to draft a sentencing memorandum and failed

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      to have [Appellant] evaluated by a psychotherapist, and present
      that person’s report and/or testimony, despite the fact that
      Appellant had serious mental health and drug and alcohol issues,
      especially where trial counsel acknowledged that he had used a
      mental health expert in a similarly serious DUI case, was counsel’s
      performance constitutionally deficient and outside the norm that
      reasonable counsel would have done?

      2.    Was counsel ineffective for failing to address the science
      underlying the cases in Miller v. Alabama, 132 S. Ct. 2455
      (2012), Roper v. Simmons, 543 U.S. 551 (2005), Graham v.
      Florida, 560 U.S. 48 (2010), reflecting that the executive
      functioning of the brain does not develop until age 25, especially
      since counsel acknowledged that he had used this argument in
      other cases and knew that the factor of youth, including the
      impetuousness, recklessness, and failure to appreciate the
      consequences of their actions, was a significant mitigating factor
      for [Appellant], who was 22 years old at the time of the accident?

Appellant’s Brief at 2-3.

      We review the PCRA court’s order for record support and error of law.

Commonwealth v. Williams, 828 A.2d 981, 987 (Pa. 2003). To prevail on

a claim of ineffective assistance of counsel, a petitioner must plead and prove:

(1) that the underlying issue is of arguable merit; (2) that counsel had no

reasonable strategic basis for the action or inaction; and (3) that counsel’s

error prejudiced the petitioner, such that the outcome of the underlying

proceeding    would    have   been    different   but   for   counsel’s     error.

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014). We presume

that counsel was effective, and the petitioner bears the burden of proving

otherwise. Id. A petitioner’s failure to prove any of the three prongs will be

fatal to the petition. Id. Here, Appellant claims he would have received a

more lenient sentence had counsel presented expert testimony to the


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sentencing court. In particular, Appellant claims sentencing counsel should

have presented evidence of Appellant’s mental health history and substance

abuse.

      At sentencing, Appellant acknowledged the facts recited above,

including that he asked Winter to lie for him. N.T. Sentencing, 3/21/16, at

26. Appellant had prior convictions for burglary, theft, DUI, and disorderly

conduct. Id. The trial court also listened to statements from the deceased

victim’s family.   Id. at 29-34.    Defense counsel spoke about Appellant’s

difficult upbringing, including the early death of Appellant’s father and

Appellant’s subsequent suicide attempt and hospitalization.       Id. at 36-37.

Appellant’s mother also testified about Appellant’s depression after his father’s

death, including a drug overdose that led to Appellant’s hospitalization. Id.

at 40. Appellant took the stand and expressed his remorse. Id. at 42-45.

      Prior to imposing sentence, the trial court spoke as follows:

             Okay.      In imposing sentence, I certainly consider
      [Appellant’s] age. I consider the nature of his prior record, which
      is not just driving under the influence related. I consider the fact
      that he’s already served a county sentence. I consider what I
      know of his history. I understand that he suffered a difficult loss
      in his life.

              I consider the fact that he’s had drug and alcohol issues.
      However, he’s had opportunities in the system to address those
      issues. These are the very saddest cases that I think we do in the
      justice system. Young people—the young people who survived
      this, lives are changed forever. This is more than just getting in
      the car and having had too much to drink. This is someone who
      already had a driving under the influence charge.




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             [Appellant] not only had alcohol in his system but he had
      illegal drugs in his system and a combination of those in his
      system. And most egregiously, despite being asked to slow down,
      he did not. In so doing he put multiple lives in danger and took
      the life of one human being.

Id. at 47-48.

      At the PCRA hearing, defense counsel acknowledged that he did not

obtain records related to Appellant’s mental health and substance abuse-

related hospitalizations. N.T. Hearing, 11/27/18, at 18. Counsel stated that,

in his interaction with Appellant, Appellant did not appear to be delusional or

incompetent. Id. at 19. Appellant appeared not to be as severely mentally

ill as other clients counsel represented in the past.   Id. at 73-74.      Thus,

counsel did not seek a mental health evaluation. Id. He also did not seek

medical records from the institutions that treated Appellant. Id. at 41.

      On cross-examination, counsel noted that the Commonwealth dropped

one count each of third-degree murder and aggravated assault in exchange

for Appellant’s plea. Id. at 51. Counsel advised Appellant on the possibility

of consecutive sentences because of the number of victims. Id. at 55-57.

The trial court imposed standard range, mostly concurrent sentences in

arriving at the 7 to 14 year aggregate. Id. at 53-54. Counsel explained that

he did not ask the trial court to order a pre-sentence investigation because

Appellant was on parole for a burglary conviction at the time of the present

offense, and counsel did not believe the pre-sentence investigation would

have been favorable. Id. at 75.



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      At the second PCRA hearing, Appellant presented the testimony of John

Markey, a licensed psychologist. Markey testified that Appellant has major

depressive disorder and ADHD. N.T. Hearing, 2/5/19, at 20-21. Appellant

has a history of excessive consumption of alcohol and other medication,

although he had been sober for several months prior to the incident in

question.   Id. at 18-19, 42.     Markey believed that some of Appellant’s

problems could be residual from a head injury Appellant sustained when he

was ten years old.   Id. at 25. Given Appellant’s history of difficult family

circumstances, alcohol abuse, and depression, Markey believed Appellant

needs more treatment than he received in the past. Id. at 33.

      In his brief, Appellant argues that counsel’s performance was deficient

because counsel failed to present to the sentencing court a sufficient amount

of detail about Appellant’s troubled past. Doing so, Appellant argues, would

have resulted in a lesser sentence. We observe that trial courts enjoy wide

discretion in crafting a sentence, and that sentence will be disturbed on appeal

only where the judge abuses that discretion. Commonwealth v. Hoch, 936

A.2d 515, 517-18 (Pa. Super. 2007). To demonstrate an abuse of discretion,

“the appellant must establish, by reference to the record, that the sentencing

court ignored or misapplied the law, exercised its judgment for reasons of

partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable

decision.” Id.




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       In essence, Appellant’s argument is that he would have received a lesser

sentence but for counsel’s failure to present additional mitigating evidence at

sentencing.1 As the PCRA court noted, however, the sentencing court was

aware of Appellant’s mental health issues and his difficult upbringing. The

sentencing court had to weigh that against the circumstances of the offense,

including Appellant’s decision to speed up after Winter asked him to slow down

and Appellant’s attempt to get Winter to lie for him. Finally, we note that the

sentencing court imposed standard range, mostly concurrent sentences.

Appellant received an aggregate 7 to 14 years of incarceration for an incident

in which one of his passengers was killed and two others were severely

injured.   Appellant has failed to establish that greater elaboration on his

mental health, substance abuse, and difficult life circumstances would have

led to a lesser sentence (or led this Court to conclude on direct appeal that

the trial court abused its sentencing discretion). Appellant’s first argument

fails because he cannot establish that counsel’s alleged ineffectiveness

prejudiced him.

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1 A PCRA petitioner can obtain relief by pleading and proving “[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). In
other contexts, we have recognized that ineffectiveness resulting in a longer
sentence is cognizable under the PCRA. See Commonwealth v. Reyes-
Rodgiguez, 111 A.3d 775 (Pa. Super. 2015), appeal denied, 123 A.3d 331
(Pa. 2015).



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       In his second assertion of error, Appellant claims counsel was ineffective

for failing to address the science underlying the United Supreme Court’s

decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), Graham v. Florida,

560 U.S. 48 (2010), and Roper v. Simmons, 543 U.S. 551 (2005). In brief,

Miller held that the Eighth Amendment’s2 prohibition of cruel and unusual

punishment prohibits sentences life imprisonment without parole offenders

less than 18 years old. Graham held that the Eighth Amendment prohibits

sentence of life without parole to juveniles who do not commit a homicide.

Roper held that the Eight Amendment prohibits execution of juvenile

offenders. These cases have no direct application here because Appellant was

just shy of his 23rd birthday at the time of the offense and the trial court did

not impose capital punishment or life imprisonment without parole.

       Appellant argues, however, that the science underlying these decisions

dictates leniency in his case because he his brain was not fully developed at

the time of the offense. This argument fails for the same reasons as the first.

Even if counsel had relied on Miller, Graham, or Roper, nothing in those

cases would have supported a conclusion that an aggregate sentence of 7 to

14 years was outside of the trial court’s sentencing discretion. Appellant will

be eligible for parole at age 30, and his maximum sentence will expire at age


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2 “Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.” U.S. CONST. amend. VIII.



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37. He was not a juvenile offender, and the trial court’s sentence has not

deprived him of a second chance, as was the case in Miller, Graham, and

Roper. Appellant has failed to establish that his sentence would have been

shorter but for counsel’s ineffectiveness.    He therefore cannot establish

prejudice.

      For all of the foregoing reasons, we affirm the PCRA court’s order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2020




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