J-S83018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ROBERT LEROY MASON,

                            Appellant                No. 235 WDA 2016


                  Appeal from the PCRA Order February 1, 2016
                 In the Court of Common Pleas of Potter County
              Criminal Division at No(s): CP-53-CR-0000268-2012


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

MEMORANDUM BY SHOGAN, J.:                       FILED DECEMBER 06, 2016

       Appellant, Robert Leroy Mason, appeals from the February 1, 2016

order denying his first petition filed pursuant to the Post Conviction Relief

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

       At the guilty plea colloquy, the Commonwealth summarized the facts

of the crimes as follows:

       [B]eginning in June of 1998 and then thereafter on dates not
       specifically known to the Commonwealth [Appellant] had sexual
       intercourse with his step daughter at a family camp . . . Sylvania
       Township and in Avis, which is in Clinton County, Pennsylvania.
       On those occasions he drugged her and had sex by forcible
       compulsion, the sex acts included oral sex on her and forced her
       to perform oral sex on him. The victim at the time was 16 years
       or younger and [Appellant] was 21 years older than she was.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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N.T., 4/3/13, at 2.

       The PCRA court summarized the procedural history as follows:

              [Appellant], Robert Mason was charged with several
       sexually related crimes perpetrated upon his step daughter who
       was between the ages of thirteen and nineteen at the time the
       crimes were committed.[1] [Appellant] pled guilty on April 3,
       2013 to the charges of Rape, 18 Pa.C.S.A. § 3121 (A) (1) and
       IDSI Person Less than 16 Years of Age, 18 Pa.C.S.A. § 3123(A)
       (7). [Appellant] was the subject of an evaluation by the Sexual
       Offenders Assessment Board which indicated that [Appellant]
       was a Sexually Violent Predator (SVP).       After a contested
       hearing on SVP status on October 25, 2013 the Court did find
       that [Appellant] was a[n] SVP. On the same date the [c]ourt
       sentenced [Appellant] within the standard range of the
       Sentencing Guidelines to a cumulative sentence of 110 to 220
       months.     [Appellant] filed a Motion for Reconsideration on
       November 4, 2013 which the [c]ourt denied on April 15, 2014.[2]

PCRA Court Opinion, 2/1/16, at 1.

       Appellant did not file a direct appeal.    On April 21, 2015, Appellant

filed a pro se PCRA petition.        The PCRA court appointed counsel by order

filed May 5, 2015.3        The court held a hearing on the pro se petition on

January 12, 2016; Appellant participated by telephone conference.         The
____________________________________________


1
  Appellant, born in August of 1965, was between the ages of thirty-three
and forty years old at the time of the assaults. N.T. (SVP Hearing),
10/25/13, at 8.
2
  The trial court continued the hearing on the motion in November of 2013
and January of 2014.
3
  In the appointment order, the PCRA court gave counsel thirty days to file
an “Amended PCRA Petition if such a filing is necessary.” Order, 5/5/15. By
order filed July 6, 2015, “having received no such Amended PCRA Petition,”
the court scheduled a hearing on the pro se petition. Order, 7/6/15.



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PCRA court denied the petition on February 1, 2016. Appellant filed a timely

notice of appeal to this Court. Both Appellant and the PCRA court complied

with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

             Should the Superior Court reverse and remand the denial
      of Appellants PCRA where ineffective assistance of counsel so
      interfered with the Appellants right to receive a fair tribunal and
      sentence where:

            a. The Appellant was denied the right of allocation at
            sentencing?

            b.    The     attorney      client    relationship   and
            communication had so deteriorated the Appellant did
            not understand the difference between concurrent
            and consecutive sentences, the Appellant thought his
            plea agreement was for a maximum of two to four
            (2-4) years of incarceration, trial counsel failed to
            advise the Appellant of the October 25, 2013
            sexually violent predator hearing, and failed to
            advise him of his reconsideration of sentence hearing
            and its results until well after the date of denial?

Appellant’s Brief at 17 (verbatim).

      When reviewing the propriety of an order denying PCRA relief, 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. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA

court’s findings will not be disturbed unless there is no support for them in

the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.

Super. 2014).




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     On appeal, Appellant is alleging trial counsel’s ineffective assistance in

two respects.    To plead and prove ineffective assistance of counsel a

petitioner must establish: (1) that the underlying issue has arguable merit;

(2) counsel’s actions lacked an objective reasonable basis; and (3) actual

prejudice resulted from counsel’s act or failure to act. Commonwealth v.

Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc).             A claim of

ineffectiveness will be denied if the petitioner’s evidence fails to meet any

one of these prongs.     Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.

2010).   Counsel is presumed to have rendered effective assistance of

counsel. Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015). We

have explained that trial counsel cannot be deemed ineffective for failing to

pursue a meritless claim.   Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc).      “We need not analyze the prongs of an

ineffectiveness claim in any particular order. Rather, we may discuss first

any prong that an appellant cannot satisfy under the prevailing law and the

applicable facts and circumstances of the case.”         Commonwealth v.

Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citing Commonwealth v.

Albrecht, 720 A.2d 693, 701 (Pa. 1998)).

     We first note that Appellant has failed to comply with Pa.R.A.P.

2119(a), which states:

     The argument shall be divided into as many parts as there are
     questions to be argued; and shall have at the head of each
     part—in distinctive type or in type distinctively displayed—the


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         particular point treated therein, followed by such discussion
         and citation of authorities as are deemed pertinent.

Pa.R.A.P. 2119(a) (emphasis added).                Instead, Appellant labels each

argument in bold type, but fails to confine his argument to the issue labeled.

For example, following his heading regarding the alleged denial of allocution 4

at sentencing, Appellant references case law relating to ineffectiveness for

failure to explain the consequences of pleading guilty, an issue he does not

raise.        Appellant’s Brief at 22–24.      He includes one conclusory sentence

relating to allocution. Id. at 22.

         Appellant also fails to develop this issue in any meaningful way and

does not refer to anything in the record to support his claim. “It is not this

Court’s responsibility to comb through the record seeking the factual

underpinnings of [the appellant’s] claim.” Irwin Union Nat. Bank & Trust

Co.      v.     Famous,    4   A.3d   1099,     1103   (Pa.   Super.   2010)   (citing

Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. 1997)).

Moreover, Appellant’s argument does not correspond with the issues

presented and does not facilitate our review. Therefore, we find the issue

waived. See Commonwealth v. Woodard, 129 A.3d 480, 509 (Pa. 2015)

(quoting Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2013), which

stated that “where an appellate brief fails to . . . develop an issue in any

other meaningful fashion capable of review, that claim is waived. It is not
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4
    Appellant labels such right as “allocation.” Appellant’s Brief at 22.



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the obligation of an appellate court to formulate [the] appellant’s arguments

for him.”) (internal quotations omitted)).5

       Appellant’s second issue asserts that he was provided ineffective

assistance of counsel when his attorney failed to clarify the difference

between concurrent and consecutive sentences and misled him into believing

that he would receive a two-to-four-year sentence.            In rejecting this

allegation as lacking arguable merit, we rely on the following explanation by

the PCRA court:

             [Trial counsel] testified that District Attorney Watson would
       not offer a binding plea of any duration to [Appellant] and that
       she never told [Appellant] that he would receive a 2 to 4 year
       sentence. Additionally, [trial counsel] averred that she read and
       completed a Guilty Plea Statement with [Appellant] which
       [Appellant] then signed. At his April 3, 2013 plea hearing
       [Appellant] indicated he had read and signed the Guilty Plea
       Statement. That Guilty Plea Statement indicated at question
       number 19 that the maximum sentence was 10 years, $25,000
       fine. As indicated by the record, the [c]ourt further advised
       [Appellant] of the maximum possible sentence and [Appellant]
       indicated he did not have any questions about the same at his
       April 3, 2013 plea hearing. Finally, [Appellant] indicated at his
       plea hearing that he had not been promised anything in
       exchange for his plea. As there is no credible evidence that
       [Appellant] was ever promised a 2 to 4 year sentence and [trial
       counsel] testified that he was never promised the same, the
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5
    Contrary to Appellant’s testimony at the PCRA hearing that he was not
offered the right of allocution, and his family was denied the right to speak,
the record reveals that the trial court offered Appellant the right of
allocution, trial counsel testified Appellant was given the option to address
the court, and the court indicated that it received and considered Appellant’s
family members’ statements.          N.T. (PCRA), 1/12/16, at 20–21; N.T.
(Sentencing), 10/25/13, at 37, 67; PCRA Court Opinion, 2/1/16, at
unnumbered 5.



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     [c]ourt finds this claim is without arguable merit and counsel
     was not ineffective with regard to this issue.            See
     [Commonwealth v.] Milligan, [693 A.2d 1313, 1319 (Pa. Super
     1997)].

                                    * * *

            [Trial counsel] testified that she discussed consecutive and
     concurrent sentence[s] with [Appellant]. [Trial counsel] also
     testified that [Appellant] fully understood the plea and the
     potential sentence he was facing.           The [c]ourt finds that
     testimony to be credible and [Appellant’s] testimony to the
     contrary to not be credible. [Appellant]’s Guilty Plea Statement
     indicated at question number 19 that the maximum sentence
     was 10 years, $25,000 fine. As indicated by the record, the
     [c]ourt further advised [Appellant] of the maximum possible
     sentence and [Appellant] indicated he did not have any
     questions about the same at his April 3, 2013 plea hearing.
     [Appellant’s] Plea Agreement, which he signed, indicates that
     District Attorney Watson made no recommendations as to
     sentencing. [Appellant] indicated at his plea hearing that he had
     not been promised anything in exchange for his plea.             As
     [Appellant] was informed of the maximum possible sentence and
     knew he had not been promised a certain sentence in exchange
     for his plea, it is clear that he understood the concept of an open
     plea and had agreed to enter an open plea. Even if [Appellant]
     did not understand the difference between consecutive and
     concurrent sentences; it is irrelevant since this was an open plea
     and no agreement as to whether the sentences would run
     together or consecutively. Accordingly, the [c]ourt finds this
     claim is without arguable merit and counsel was not ineffective
     with regard to this issue. See Milligan, Supra.

PCRA Court Opinion, 2/1/16, at unnumbered 6, 7.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2016




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